Merritt v. Young et al
Filing
5
MERIT REVIEW OPINION entered by Judge Colin Stirling Bruce on 1/7/2014. The Clerk is directed to attempt service. See written order. Copy to the Plaintiff by way of e-filing project. Rule 16 Deadline 3/10/2014. (JMW, ilcd)
E-FILED
Tuesday, 07 January, 2014 03:41:51 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KELVIN MERRITT,
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Plaintiff,
v.
WARDEN YOUNG, et al.,
Defendants.
13-CV-3377
MERIT REVIEW OPINION
Plaintiff, proceeding pro se and incarcerated in Menard
Correctional Center, seeks leave to proceed in forma pauperis on
his claim that Defendants failed to treat his rib fracture during his
incarceration in Western Illinois Correctional Center.
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, 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)(quoted cite omitted).
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ALLEGATIONS
During Plaintiff's incarceration in Lawrence Correctional
Center on November 11, 2011, Plaintiff injured his rib cage in a
fight. Plaintiff tried unsuccessfully to obtain treatment at Lawrence
and fared no better at Western Correctional Center, where he was
transferred later that month.
In particular, Defendant Dr. Baker saw Plaintiff on December
6, 2011, and described his rib injury, pain, and difficulty
functioning.
Dr. Baker refused to issue a low bunk permit and
would not prescribe effective pain medicine, but did order x-rays.
Dr. Baker told Plaintiff that the x-rays showed no fracture, which
Plaintiff did not believe because Plaintiff's rib was visibly sticking
out from its usual location. Dr. Baker and his colleagues told
Plaintiff that Plaintiff has only a "knot" on his side which is
cosmetic and does not require treatment. Plaintiff alleges that Dr.
Baker and his employer, Wexford Health Care Sources, Inc., have
an unspoken policy of letting broken bones heal over before
ordering x-rays and then declaring the injury cosmetic, in order to
avoid expensive treatment.
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ANALYSIS
The Eighth Amendment prohibits cruel and unusual
punishment, which in the context of this case means that
Defendants cannot be deliberately indifferent to Plaintiff's serious
medical needs. Gomez v. Randle, 680 F.3d 859, 865 (7th Cir.
2012). At this stage, the Court cannot rule out a deliberate
indifference claim against Dr. Baker and Wexford Health Sources,
Inc. Wexford cannot be liable unless it has a policy which caused
Plaintiff's alleged constitutional deprivation, but that determination
requires a more developed record. Jackson v. Ill. Medi-Car, Inc.,
300 F.3d 760, 766 n. 6 (7th Cir. 2002)(private corporations acting
under color of state law are treated as municipal entities for
purposes of 42 U.S.C. Section 1983).
However, no claim is stated against Warden Young, Grievance
Officer Goines, or Administrative Review Board member Benton.
These Defendants are all laypersons who responded to Plaintiff's
complaints. As laypersons, they were entitled to rely on the
professional assessment of Dr. Baker and his colleagues. 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
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be justified in believing that the prisoner is in capable
hands.'")(quoted cite omitted). These three Defendants will
therefore be dismissed.
IT IS 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 against Dr. Baker and Wexford Health Sources,
Inc., for deliberate indifference to Plaintiff's 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 motion by a party for good cause shown or
pursuant to Federal Rule of Civil Procedure 15.
2)
Defendants Young, Goines, and Benton are dismissed for
failure to state a claim against them.
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
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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 mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver 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 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
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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
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)
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 Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that 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. 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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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 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:
11) The clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
ENTERED: 1/7/2014
FOR THE COURT:
s/Colin Stirling Bruce
COLIN STIRLING BRUCE
UNITED STATES DISTRICT JUDGE
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