Lemberger v. Scott et al
Filing
9
MERIT REVIEW OPINION: The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. Defendant Walker is dismissed for failure to state a claim against her. The clerk is directed to enter the standard HIPAA order. Plaintiff's motions for status are denied as moot (d/e's 6 , 8 ). SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 5/1/2014. (MJ, ilcd)
E-FILED
Thursday, 01 May, 2014 03:43:06 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL LEMBERGER,
Plaintiff,
v.
GREGG SCOTT,
DANIELLE WALKER, and
THOMAS REINHARDT,
Defendants.
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13-CV-3417
MERIT REVIEW OPINION
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
state a claim, even if part of the filing fee has been paid. 28 U.S.C.
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§ 1915(d)(2). Accordingly, this Court grants leave to proceed in
forma pauperis only if the complaint states a federal claim.
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).
Plaintiff alleges that the Detention Center has an unsafe policy
regarding the storage of shaving razors which, liberally construed,
puts Plaintiff at a serious risk of contracting a blood-borne disease
from another detainee. Plaintiff also alleges that staff sometimes
intentionally give the wrong razor to a detainee, in retaliation for
that detainee's complaints. Defendant Reinhardt gave Plaintiff
someone else's razor on September 13, 2013, but Plaintiff did not
realize this until after Plaintiff had shaved. Now Plaintiff lives in
fear of having contracted a blood-borne disease.
Negligence does not violate the Constitution. To state a
constitutional claim, Plaintiff must allege facts which suggest that:
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1) the storage of the razors presents a serious risk of substantial
harm to Plaintiff; and, 2) Defendants have consciously disregarded
this risk by failing to take reasonable measures to reduce the risk.
These inferences are a stretch based on the present allegations, but
a claim cannot be ruled out against Defendants Reinhardt or Scott.
However, no claim is stated against Nurse Walker. No facts are
alleged to suggest the Walker has anything to do with how the
shaving razors are stored.
IT IS ORDERED:
1.
Plaintiff's petition to proceed in forma pauperis is granted
(2). Pursuant to a review of the Complaint, the Court finds that
Plaintiff states a claim arising from the intentional or reckless
storage of residents' razors in a manner which amounts to
deliberate indifferent to a serious risk of substantial harm to
Plaintiff. 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.
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
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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.
3.
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.
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, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
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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 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.
6.
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.
7.
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.
8.
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
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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.
9.
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).
IT IS FURTHER ORDERED:
10. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
11. Defendant Walker is dismissed for failure to state a
claim against her.
12. The clerk is directed to enter the standard HIPAA order.
13. Plaintiff's motions for status are denied as moot (d/e's 6,
8).
ENTERED: May 1, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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