Mulder v. Lochard et al

Filing 5

MERIT REVIEW OPINION (See Written Opinion): 1) Plaintiff's petition to proceed in forma pauperis is granted; 2) the Clerk is directed to attempt service on Defendants pursuant to the standard procedures and to assess a partial filing fee. Entered by Judge Sue E. Myerscough on 11/07/2013. (VM, ilcd)

E-FILED

Thursday, 07 November, 2013 09:28:35 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL G. MULDER,
Plaintiff,
v.
DR. HUGHES LOCHARD,
et al.,
Defendants.

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13-CV-3324

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis.
The “privilege to proceed without posting security for costs
and fees is reserved to the many truly impoverished litigants who,
within the District Court's sound discretion, would remain without
legal remedy if such privilege were not afforded to them.” Brewster
v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
Additionally, a court must dismiss cases proceeding in forma
pauperis “at any time” if the action is frivolous, malicious, or fails to
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state a claim, even if part of the filing fee has been paid. 28 U.S.C.
§ 1915(d)(2). Accordingly, this Court grants leave to proceed in
forma pauperis only if the complaint states a federal claim. A
hearing was scheduled to assist in this review, but the hearing will
be cancelled as unnecessary.
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., 2013 WL 3215667 *2 (7th
Cir. 2013)(quoted cite omitted).
On August 8, 2013, Plaintiff suffered an injury to his face
while playing basketball. He suspected that his tooth had cracked
or that a nerve in his mouth was exposed, due to the excruciating
and throbbing pain he was experiencing. Plaintiff allegedly tried
over the next week to obtain adequate medical attention to no avail.
He was provided pain medicine, but no one would actually examine
Plaintiff to determine the cause of his pain. Plaintiff collapsed on
the floor several times due to the excruciating pain and dizziness he
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was suffering. On August 15, 2013, Plaintiff was seen by the
dentist who diagnosed Plaintiff with an abscess on his gums and
nerve damage around his tooth.
ANALYSIS
Plaintiff's claim is governed by the Fourteenth Amendment,
not the Eighth Amendment, but there is no practical difference
between the legal standards on a claim for lack of medical care.
Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 301 n.2 (7th
Cir. 2010); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).
Plaintiff must show "(1) an objectively serious injury or medical
need was deprived; and (2) the official knew that the risk of injury
was substantial but nevertheless failed to take reasonable measures
to prevent it." Chapman, 241 F.3d at 845.
An objectively serious injury or medical need is "'one that has
been diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.'" Chapman, 241 F.3d at 845
(quoted citations omitted). A condition can be considered serious if,
without treatment, the plaintiff suffered “‘further significant injury

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or unnecessary and wanton infliction of pain.’” Arnett v. Webster,
658 F.3d 742, 751 (7th Cir.2011)(quoted cite omitted).
The subjective component, deliberate indifference, is not
negligence (malpractice) or even gross negligence. Chapman, 241
F.3d at 845 (citation omitted). Deliberate indifference is the
conscious disregard of a known risk of substantial harm. Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011). Deliberate indifference
to "prolonged, unnecessary pain" can amount to a constitutional
violation. Smith v. Knox County Jail, 666 F.3d 1037, 1040 (7th Cir.
2012)(internal and quoted cites omitted); Williams v. Liefer, 491
F.3d 710 (7th Cir. 2007)(affirming denial of summary judgment for
six hour delay in providing nitroglycerine, which immediately
relieved inmate's pain: "a jury could find that the defendants' delay
caused Williams six extra hours of pain and dangerously elevated
blood pressure for no good reason."); Gil v. Reed, 381 F.3d 649 (7th
Cir. 2004)(summary judgment reversed where jury could find delay
caused "many more hours of needless suffering for no reason").
Plaintiff's own description of his symptoms allows an inference
that he had a serious medical need. His alleged repeated attempts
to obtain help allow an inference of deliberate indifference.
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Typically the non-medical Defendants are dismissed at this stage
because they are entitled to rely on the medical professionals'
judgment. Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005)(“‘If a
prisoner is under the care of medical experts... a nonmedical prison
official will generally be justified in believing that the prisoner is in
capable hands.’”)(quoted cite omitted). However, at this point the
Court cannot determine whether Plaintiff's medical needs were so
obvious that even a layperson would have known that Plaintiff was
being denied adequate care. King v. Kramer, 680 F.3d 1013, 1018
(7th Cir. 2012)( nonmedical defendants may be liable if “‘they have
a reason to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner.’”)(quoted cites
omitted). This case will therefore proceed against all Defendants.
IT IS ORDERED:
1.

Pursuant to a review of the Complaint, the Court finds

that Plaintiff states a federal constitutional claim for deliberate
indifference to his serious medical needs. 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

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motion by a party for good cause shown or pursuant to Federal
Rule of Civil Procedure 15.
2.

An order will enter assessing a partial filing fee. Plaintiff's

petition to proceed in forma pauperis will be revoked and this case
will be dismissed if Plaintiff does not pay the partial filing fee.
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.
4.

The Court will attempt service on Defendants by sending

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver of service 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 counsel has appeared for
Defendants, the Court will enter a scheduling order setting
deadlines for discovery and dispositive motions.
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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 day

the waiver of service 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.
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

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Defendants is not available, Plaintiff will be notified and instructed
accordingly.
8.

Counsel for Defendants is hereby granted leave to depose

Plaintiff at Plaintiff's 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 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).
IT IS FURTHER ORDERED: 1) Plaintiff's petition to
proceed in forma pauperis is granted; 2) the Clerk is directed to
attempt service on Defendants pursuant to the standard
procedures and to assess a partial filing fee.
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ENTERED: November 7, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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