Kincaid v. Sangamon County, Illinois et al

Filing 82

OPINION entered by Judge Sue E. Myerscough on 6/5/2012. (MAS, ilcd)

E-FILED

Tuesday, 05 June, 2012 05:03:25 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PAUL E. KINCAID,

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Plaintiff,
v.
SANGAMON COUNTY, et al.,
Defendants.

09-CV-3053

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff pursues claims for deliberate indifference to his serious
medical needs during his detention in the Sangamon County Jail. The
case is set for a status conference on June 11, 2012. Before the Court are
the pending motions which can be addressed in order to streamline the
conference.
IT IS THEREFORE ORDERED:
1) The motion to substitute the United States for the federal
Defendants (Cowdrey and the U.S. Marshals Service) is denied (d/e 48).

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The United States does not address the possibility that Plaintiff is
pursuing a Bivens claim against Defendant Cowdrey individually, which
appears to be what Plaintiff intends to do. (See d/e 2, “This statement is
to become part of my complaint . . . against those entities, employees
and/or persons named in my 1983/Bivens action submitted to this court .
. . .”). See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Plaintiff does not mention the Federal Tort Claims Act in any of his
pleadings, and pursuing an FTCA claim may have consequences. The
Seventh Circuit explained in Manning v. U.S., 546 F.3d 430 (7th Cir.
2008):
If a federal law enforcement officer commits a tort, the victim
has two distinct avenues of relief: he may pursue a
constitutional tort claim against the individual officer under
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, . . ., or he may pursue a common law tort claim
against the United States pursuant to the Federal Tort Claims
Act (“FTCA”), . . . The latter avenue is subject to an
important caveat. Under 28 U.S.C. § 2676, a judgment in an
FTCA action acts as a complete bar to any action by the
claimant, by reason of the same subject matter, against the
employee of the government whose act or omission gave rise
to the claim.
The Seventh Circuit in Manning held that a judgment against a plaintiff
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on his FTCA claim barred his earlier successful jury verdict in a Bivens
action arising from same facts, even though the claims were brought in
the same case.
The Court construes the claim against the federal defendants as a
Bivens action, which is how Plaintiff describes his claim. If the Court is
mistaken and Plaintiff does intend to pursue an FTCA action, he must
inform the Court in writing by June 9, 2012.
2) The “U.S. Marshals Service” is not subject to a Bivens suit for
damages. FDIC v. Meyer, 510 U.S. 471, 486 (1994)(federal agencies are
not subject to suit for damages under Bivens). “Bivens claims are
brought against the relevant officials in their individual capacity, . . . .”
Bunn v. Conley, 309 F.3d 1002, 1009 (7th Cir. 2002). Accordingly, the
U.S. Marshals Service and Defendant Cowdrey in his official capacity are
dismissed (to the extent Plaintiff intends to sue Cowdrey in his official
capacity).
3) The motion to dismiss Plaintiff’s FTCA claim is denied (d/e 67)
because the Court construes Plaintiff’s claim as a Bivens action. The

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United States asserts that Judge Baker’s merit review order identified an
FTCA claim, but the exhaustion referred to in that order is the
exhaustion required under the Prisoner Litigation Reform Act for all
prisoners filing civil actions, not the exhaustion requirement under the
FTCA.
4) The motion for a protective order by Defendants Beckner, et al.,
is granted (d/e 49). The clerk is directed to affix the Court’s electronic
signature to the proposed order and to docket the order. Plaintiff seeks
an extension to respond this motion, but Plaintiff has had over seven
weeks to respond. Plaintiff has put his own medical condition at issue,
and the proposed order contains the standard provisions typically found
in such a protective order and required by the Health Insurance
Portability and Accountability Act. Such orders are routinely entered in
cases like this. Plaintiff identifies no reason why the order should not
enter, nor can the Court discern one.
5) Defendant Maurer’s motion for a protective order is denied as
moot (d/e 80).

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6) The motion to dismiss the unidentified defendants filed by
Defendant Williamson is denied as premature (d/e 62). Plaintiff should
be permitted an opportunity in discovery to identify these individuals
and their involvement in the alleged violations. Whether the statute of
limitations bars amendment of these individuals is an issue to be
addressed if and when Plaintiff seeks to add newly identified defendants.
7) Defendant Sangamon County Jail’s motion to dismiss is granted
(d/e 64). The Jail is not an entity that can be sued under 42 U.S.C. §
1983. See Smith v. Knox County Jail, 666 F.3d 1037, 1040 (7th Cir.
2012)(Knox County Jail a “non-suable entity”); Powell v. Cook County
Jail, 814 F.Supp. 757, 578 (N.D.Ill.1993)(Cook County Jail is not an
entity nor a “person” subject to suit under § 1983). Plaintiff seeks more
time to respond to this motion, but granting an extension would be
futile, as the law is clear on this point.
8) The motion to withdraw as co-counsel filed by Defendant Hoff
is granted (d/e 72).
9) The motion for leave to file an Answer by the United States is

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denied (d/e 73) because the United States is not being substituted for the
federal defendants. By June 22, 2012, Defendant Cowdrey is directed to
file an Answer.
10) Plaintiff’s motions for additional extensions to respond to the
pending motions are denied (d/e’s 78, 81). A response is not necessary
for the motions the Court has denied, and the motions the Court granted
must clearly be granted as a matter of law.
11) Plaintiff’s motion for the appointment of counsel is denied (d/e
77) with leave to renew upon a showing that he has made reasonable
efforts to obtain an attorney on his own. Plaintiff asserts that he has
made such attempts, but the Court typically requires a plaintiff to attach
the responses of the lawyers to his motion for counsel. Additionally, if
Plaintiff renews his motion for counsel he should set forth the
educational degrees he has received (i.e., highschool, college, etc.) and
any classes he has taken or is taking in prison. Additionally, he should
attach his medical records to corroborate his alleged current medical
condition.

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12) A waiver of service sent to Defendant Rosenbeck’s forwarding
address has not been returned. Rosenbeck is a former employee of the
Sangamon County Sheriff’s Department and, according to information
provided by counsel for the Jail Defendants, has not contacted the
Sheriff’s Department regarding this case.
Accordingly, the U.S. Marshals are directed to personally serve a
summons and a copy of the Complaint upon Defendant Rosenbeck at his
forwarding address. The Clerk is directed to prepare and forward the
necessary documents to the Marshals. Rosenbeck’s forwarding address
shall not be disclosed by the Marshals or the Clerk and shall not be made
a part of the record. Costs of service shall be assessed against Defendant
Rosenbeck pursuant to Fed. R. Civ. P. 4(d)(2).
13) Remaining for discussion at the status conference on June 11,
2012 is the status of service on Nurse “C. Taylor,” and the setting of
scheduling deadlines. The Court proposes the following deadlines: initial
disclosures due July 31, 2012; amended complaint (if any) and
identification of unknown parties by September 4, 2012; Plaintiff’s

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expert disclosures due October 1, 2012; Defendants’ expert disclosures
due November 1, 2012; discovery closes February 4, 2013; dispositive
motions due March 4, 2013; final pretrial conference October 7, 2013, at
1:30 p.m.; and, jury trial set on the Court’s trailing trail calendar for
November 5, 2013. These proposed deadlines will be discussed at the
conference as well as any other pending issues that may arise.
ENTERED:

June 5, 2012

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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