Walker v. Harding et al

Filing 9

MERIT REVIEW OPINION Entered by Judge Harold A. Baker on 4/9/2018. See written Order. Pursuant to its merit review of the Complaint under 28U.S.C. § 1915A, the court finds that the plaintiff states an EighthAmendment claim for deliberate indi fference to serious medical anddental health needs against Defendants Harding, Miller, and John Doe Health Care Staff. This case is now in the process of service. The clerk is directed to enter the standard qualified protective order pursuant to th e Health Insurance Portability and Accountability Act. The clerk is directed to terminate Ostenburge, Barrett, Public Safety Building, Owner of Public Safety Building and Vermilion County Sheriff's Dept as defendants. The clerk is directed to attempt service on the remainingdefendants pursuant to the standard procedures. Plaintiffs oral motion for counsel made at the hearing is denied, with leave to renew upon demonstrating that he made attempts to hire his own counsel. (ED, ilcd)

E-FILED

Monday, 09 April, 2018 04:29:04 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
COREY LAMAR WALKER,
Plaintiff,
v.
SHELLY HARDING, et al.,
Defendants.

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18-CV-2051

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, a pretrial detainee at the
Vermilion County Public Safety Building (“VCPSB”), was granted
leave to proceed in forma pauperis. The case is now before the
court for a merit review of plaintiff’s claims. The court is required
by 28 U.S.C. § 1915A to “screen” the plaintiff’s complaint, and
through such process to identify and dismiss any legally insufficient
claim, or the entire action if warranted. A claim is legally
insufficient if it “(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary relief from
a defendant who is immune from such relief.” 28 U.S.C. § 1915A.
In reviewing the complaint, the court accepts the factual
allegations as true, liberally construing them in the plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 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)(citation
omitted). The court has reviewed the complaint and has also held a
merit review hearing in order to give the plaintiff a chance to
personally explain his claims to the court.
Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983
alleging that he has a “temporary” rod in his leg that has become
infected and that he requires physical therapy twice a week, which
he is not getting at the jail. Plaintiff also alleges that he suffers
from anal bleeding and a broken tooth for which the ibuprofen and
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antibiotics he has been provided do not work. Plaintiff alleges that
he had to wait 4 months to see a dentist, and then the dentist
would not treat Plaintiff because Plaintiff’s insurance had expired.
Plaintiff states a claim for deliberate indifference to serious
medical and dental needs against Defendants Shelly Harding and
Marcie Miller. Petties v. Carter, 836 F.3d 722, 729-30 (7th Cir.
2016) (en banc). Plaintiff makes no allegations against Lt.
Ostenburge, Captain Barrett, and the John Doe Owner of the Public
Safety Building, and therefore these defendants will be dismissed.
Defendants Public Safety Building and the Vermilion County
Sheriff’s Dept. will also be dismissed. See Powell v. Cook County
Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (holding the Cook
County Jail was not a person under Section 1983); Monell v. Dep’t
of Social Srvcs. of City of New York, 436 U.S. 658 (1978)
(municipalities can only be held liable if a policy or practice caused
the deprivation). The Court will leave the “John Doe” Health Care
Staff as a defendant until a more developed record can determine
whether additional healthcare staff were involved in the alleged
deprivation.
IT IS THEREFORE ORDERED:
1.
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the court finds that the plaintiff states an Eighth
Amendment claim for deliberate indifference to serious medical and
dental health needs against Defendants Harding, Miller, and John
Doe Health Care Staff. 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. The plaintiff is
advised to wait until counsel has appeared for the defendants
before filing any motions, in order to give the defendants notice and
an opportunity to respond to those motions. Motions filed before
defendants' counsel has filed an appearance will generally be denied
as premature. The plaintiff need not submit any evidence to the
court at this time, unless otherwise directed by the court.

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3.
The court will attempt service on the defendants by
mailing each defendant a waiver of service. The defendants have 60
days from the date the waiver is sent to file an answer. If the
defendants have not filed answers or appeared through counsel
within 90 days of the entry of this order, the plaintiff may file a
motion requesting the status of service. After the 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 the 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.
5.
The 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 the defendants' positions. The court does not rule
on the merits of those positions unless and until a motion is filed by
the 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 the plaintiff with the clerk. The plaintiff does not need to
mail to defense counsel copies of motions and other papers that the
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. The 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 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.
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7.
Counsel for the defendants is hereby granted leave to
depose the plaintiff at his place of confinement. Counsel for the
defendants shall arrange the time for the deposition.
8.
The plaintiff shall immediately notify the court, in
writing, of any change in his mailing address and telephone
number. The 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 defendant 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.
Marshals 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. The clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability and
Accountability Act.
11. The clerk is directed to terminate Ostenburge, Barrett,
Public Safety Building, Owner of Public Safety Building and
Vermilion County Sheriff's Dept as defendants.
12. The clerk is directed to attempt service on the remaining
defendants pursuant to the standard procedures.
13. Plaintiff’s oral motion for counsel made at the hearing is
denied, with leave to renew upon demonstrating that he made
attempts to hire his own counsel. Pruitt v. Mote, 503 F.3d 647, 65455 (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.
Entered this 9th day of April, 2018
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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