Hernandez v. Wilson et al
Filing
9
MERIT REVIEW OPINION: This case proceeds and is now in the process of service. Plaintiff's motion for the Court to appoint counsel 4 is denied. Plaintiff's motion for temporary restraining order/preliminary injunction 5 is denied. The clerk is to enter the standard IFP order, assess a partial filing fee, attempt service on Defendants and enter to standard HIPAA order. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 08/04/2017. (SKN, ilcd)
E-FILED
Friday, 04 August, 2017 11:00:00 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JOSE HERNANDEZ,
Plaintiff,
v.
TAMMY WILSON and
WEXFORD HEALTH SOURCES,
INC.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
17-CV-2165
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Danville
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally
construing them in Plaintiff's favor and taking Plaintiff’s pro se
status into account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
1
A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
Page 1 of 8
2013). However, conclusory statements and labels are insufficient.
Enough facts must be provided to "'state a claim for relief that is
plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
Plaintiff alleges that he suffers from nasal polyps and chronic
sinusitis. He alleges that prison doctors since 2014 have
recommended that Plaintiff be taken to an ear, nose, and throat
specialist for a consultation, but Defendants have repeatedly denied
those requests to contain costs. Instead, Plaintiff is prescribed
nasal decongestant and steroids which are allegedly ineffective and
potentially harmful. Plaintiff alleges that, as the result of the
ineffective treatment, he is suffering from the loss of taste and
smell, chronic migraines, swelling of sinuses, blurred vision, watery
eyes, and sleep deprivation. In addition to damages, Plaintiff seeks
a preliminary injunction, alleging that the failure to treat his
condition could result in a deviated septum and the permanent loss
of smell and taste.
Plaintiff states an Eighth Amendment claim for deliberate
indifference to his serious medical needs. At this time, Plaintiff’s
motion for a preliminary injunction is denied because he has not
Page 2 of 8
demonstrated a likelihood of success on the merits of his claim.
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of
America, 549 F.3d 1079, 1085 (7th Cir. 2008)(setting forth
preliminary injunction requirements, which include demonstrating
some likelihood of succeeding on merits of claim). Plaintiff may
renew his motion for a preliminary injunction attaching his relevant
medical records, the recommendations for a referral to a specialist,
and the denials of those recommendations.
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth
Amendment claim for deliberate indifference to his serious medical
needs regarding his nasal polyps and sinusitis.
This case proceeds
solely on the claims identified in this paragraph. Any additional
claims shall not be included in the case, except at the Court’s
discretion on motion by a party for good cause shown or pursuant
to Federal Rule of Civil Procedure 15.
2)
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
Page 3 of 8
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
3)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
4)
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
Page 4 of 8
5)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
6)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
Page 5 of 8
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
7)
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
8)
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
9)
If a Defendants fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
10)
Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
Page 6 of 8
11)
Plaintiff’s motion for the Court to appoint counsel is
denied (4), with leave to renew after Plaintiff demonstrates that he
has made reasonable efforts to find counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This typically requires
writing to several lawyers and attaching the responses. If Plaintiff
renews his motion, he should set forth how far he has gone in
school, any jobs he has held inside and outside of prison, any
classes he has taken in prison, and any prior litigation experience
he has.
12)
Plaintiff’s motion for temporary restraining
order/preliminary injunction is denied with leave to renew
attaching the documentation set forth above. (d/e 5.)
13)
The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
14)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: 08/04/2017
Page 7 of 8
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 8 of 8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?