Lipscomb v. Hanies, et al

Filing 8

OPINION/CASE SCHEDULING ORDER - Terminating Western CC and setting a Rule 16 Scheduling Conference for 5/28/2013 01:30 PM in Courtroom 1 in Springfield before Judge Sue E. Myerscough. Entered by Judge Sue E. Myerscough on 3/14/2013. (CT, ilcd)

E-FILED

Thursday, 14 March, 2013 09:15:49 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
WILBERT LIPSCOMB,

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Plaintiff,
v.
BRIAN HANIES, WESTERN
ILLINOIS CORRECTIONAL
CENTER, JOHN DOES,
Defendants.

13-CV-3021

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and incarcerated in Pinckneyville
Correctional Center, seeks leave to proceed in forma pauperis. The
case is before the Court for a merit review pursuant to 28 U.S.C. §
1915A. A merit review hearing was held on February 27, 2013, to
assist the Court in this review.
Plaintiff lost his right index and middle finger and part of his right
thumb while cleaning a meat mixer, during Plaintiff's incarceration
in Western Illinois Correctional Center in 2002. Defendant Brian
Hines allegedly told Plaintiff to clean the meat mixer. Plaintiff
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asserts that he had no training on the meat mixer and turned the
mixer off before beginning to clean the inside of the mixer.
However, the mixer allegedly turned on by itself.
Plaintiff successfully pursued a claim in the Illinois Court of
Claims, recovering $11,000. Plaintiff argues that $11,000 does not
begin to fully compensate him for the loss of his fingers.
In order to pursue a claim in federal Court, Plaintiff must allege a
violation of federal law. If Plaintiff's injury were caused by
deliberate indifference to a substantial risk of serious harm, then
Plaintiff would state a federal claim for the violation of his Eighth
Amendment right under the Constitution to be free from cruel and
unusual punishment. Negligence, even gross negligence, is not
enough to state an Eighth Amendment violation.
At this point the Court cannot rule out an Eighth Amendment
claim. This case will therefore proceed, though Plaintiff's claim may
be barred by the two year statute of limitations, as the Court
informed Plaintiff at the merit review hearing. The prison will be
dismissed because the prison is a not a "person" subject to suit
under 42 U.S.C. § 1983.
IT IS THEREFORE ORDERED:
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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 a substantial
risk of serious harm. 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. Defendant Western Illinois Correctional Center is dismissed.
3. 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. 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).
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,
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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. Defendants shall file an answer within the time prescribed by
Local Rule. 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.
6. Plaintiff shall serve upon any Defendant who has been served
but who is not represented by counsel a copy of every filing
submitted by Plaintiff for consideration by the Court and shall
also file a certificate of service stating the date on which the
copy was mailed. Any paper received by a District Judge or
Magistrate Judge that has not been filed with the Clerk or that
fails to include a required certificate of service shall be
stricken by the Court.
7. Once counsel has appeared for a Defendant, Plaintiff need not
send copies of his filings to that Defendant or to that
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Defendant's counsel. Instead, the Clerk will file Plaintiff's
document electronically and send a notice of electronic filing
to defense counsel. The notice of electronic filing shall
constitute service on Defendants pursuant to Local Rule 5.3.
If electronic service on Defendants is not available, Plaintiff
will be notified and instructed accordingly.
8. This cause is set for further scheduling procedures under Fed.
R. Civ. P. 16 on May 28, 2013 at 1:30 p.m., or as soon as the
Court can reach the case, before U. S. District Judge Sue E.
Myerscough by telephone conference. The conference will be
cancelled if service has been accomplished and no pending
issues need discussion. Accordingly, no writ shall issue for
Plaintiff’s presence unless directed by the Court.
9. 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.
10. 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

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address or phone number will result in dismissal of this
lawsuit, with prejudice.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED
TO send to each named Defendant pursuant to this District's
internal procedures: 1) a Notice of Lawsuit and Request for
Waiver of Service; 2) a Waiver of Service; 3) a copy of the
Complaint; and 4) this order.
ENTERED:

March 14, 2013

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

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