Blakes v. Baker et al
Filing
6
MERIT REVIEW OPINION: 1) The clerk is directed to attempt service on Defendants pursuant to the standard procedures; 2) Plaintiff's motion for appointed counsel is denied (d/e 4 ). Entered by Judge Sue E. Myerscough on 10/28/2013. (ME, ilcd)
E-FILED
Monday, 28 October, 2013 10:30:50 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL BLAKES,
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Plaintiff,
v.
DR. BAKER, et al.,
Defendants.
13-CV-3307
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, incarcerated and proceeding pro se, seeks leave to
proceed in forma pauperis on claims arising from an alleged failure
to treat his fractured wrists and failure to prescribe him a low bunk
permit.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the
factual allegations as true, liberally construing them in Plaintiff's
favor. Turley v. Rednour, --- F.3d ---, 2013 WL 3336713 * 2 (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)(quoted cite omitted).
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Plaintiff alleges that he fractured his wrists in Menard
Correctional Center in 2010 and did not receive adequate
treatment. In June 2011, Plaintiff was transferred to Western
Correctional Center where Defendants have continued to refuse to
treat Plaintiff’s allegedly fractured wrists. Additionally, Dr. Baker
has allegedly refused to issue Plaintiff a low bunk permit, which
Plaintiff needs because of Plaintiff’s severe back pain and fractured
wrists. Plaintiff has fallen while attempting to climb to the top
bunk, due to Dr. Baker's refusal to prescribe a low bunk permit.
Plaintiff states an arguable Eighth Amendment claim for
deliberate indifference to his serious medical needs. Generally,
nurses are required to defer to the doctor’s diagnosis and treatment
decisions. However, at this point the Court cannot rule out an
inference of deliberate indifference against the nurses.
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
need for treatment for his wrists and for a low bunk permit. This
case proceeds solely on the claims identified in this paragraph.
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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)
Plaintiff's motion for the Court to request counsel to
voluntarily represent him is denied (d/e 3), with leave to renew
upon demonstrating that Plaintiff has made reasonable attempts to
find counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th
Cir. 2007). Plaintiff should write to several law firms or lawyers and
attach the responses he receives to a renewed motion for counsel.
If Plaintiff renews his motion for counsel, Plaintiff should set forth
his educational level, any classes he has taken in prison, jobs he
had inside and outside prison, and litigation experience he has had
in federal court or state court.
3)
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
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.
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4)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
service 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.
5)
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.
6)
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
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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.
7)
Once counsel has appeared for a Defendant, Plaintiff
need not send copies of his filings to that Defendant or to that
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)
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.
9)
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.
10)
If a Defendant fails to sign and return a waiver of
service to the Clerk within 30 days after the waiver is sent, the
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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).
IT IS FURTHER ORDERED: 1) The clerk is directed to attempt
service on Defendants pursuant to the standard procedures; 2)
Plaintiff's motion for appointed counsel is denied (d/e 4).
ENTERED: 10/28/2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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