Scott v. Ore et al

Filing 9

MERIT REVIEW OPINION: Plaintiff's petition to proceed in forma pauperis is granted 2 . The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. The Plaintiffs motion for appointment of counsel is denied with leave to renew. 3 (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 1/14/2015. (GL, ilcd)

E-FILED

Wednesday, 14 January, 2015 12:01:34 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DENNIS SCOTT,

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Plaintiff,
v.
ALICE ORE, et. al.,
Defendants.

14-CV-3271

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the court for review of the Plaintiff’s
Amended Complaint.
BACKGROUND
Plaintiff is civilly detained in the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons
Commitment Act, 725 ILCS 207/1, et seq. In his initial complaint,
the Plaintiff alleged various problems receiving dialysis for his
diabetic condition. However, his complaint was repetitive,
confusing, and difficult to decipher. In addition, the Plaintiff
included claims which were the basis of another lawsuit in the

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Central District of Illinois alleging the Plaintiff was denied dialysis
treatment for five continuous days in March of 2013. See Scott v
Smith, Case No. 13-3157, July 11, 2013 Merit Review Opinion.
Therefore, the court dismissed the Plaintiff’s complaint, but
allowed him additional time to file an amended complaint clarifying
his claims. See October 20, 2014 Merit Review Opinion. The
Plaintiff has now filed his amended complaint.
ALLEGATIONS
The Plaintiff has identified five Defendants including Dialysis
Nurse Alice Ore and Security Therapist Aides James Morton, Rose
Taylor, Amy Wessel and Wanda Pennock. The Plaintiff says he is
suing each Defendant in their individual and official capacities.
Once again, the Plaintiff’s amended complaint is a litany of
complaints which are not in any particular order and are difficult to
follow.
For instance, the Plaintiff says on July 19, 2014, Nurse Alice
Ore sent him back to his unit wearing blood soaked clothes in
violation of facility protocols.
On August 26, 2014, Nurse Ore and Aide Taylor denied the
Plaintiff scheduled dialysis.
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On July 23, 2014, the Plaintiff’s blood sugar level dramatically
dropped, and he was rushed to the Health Care Unit where he was
given shots in his stomach. When Nurse Ore was informed of the
emergency, she stated she did not care.
On August 6, 2014, the Plaintiff complained to Nurse Ore
about her unprofessional comments. She responded by ending his
dialysis treatment. Aides Pennock and Taylor were escorting the
Plaintiff back to his unit when the Plaintiff complained that he
could not breath and asked to return to the Health Care Unit. His
request was denied.
Nurse Ore also denied the Plaintiff dialysis treatment on
August 6, 2014 and August 9, 2014. The Plaintiff reported the
denial to Aides Morton and Wessel, but they threatened to put the
Plaintiff in segregation if he did not return to his unit.
The Plaintiff also says he was denied dialysis by Nurse Ore
and Aide Taylor on September 3, 2014.
On October 8, 2014, Nurse Ore tampered with the Plaintiff’s
dialysis machine causing him to lose blood and suffer chills.

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On October 17, 2014, Aide Morton and Nurse Orr denied
dialysis treatment and Pennock and Ore denied treatment on
October 20, 2014.
The Plaintiff says the “reckless” admission of dialysis
treatment has placed strain on his muscles and led to an enlarged
heart. (Amd. Comp., p. 8). The Plaintiff finishes with an allencompassing stream of complaints including “harassing,
threatening, intimidating, retaliating, discouraging and scaring the
Plaintiff away from his lawsuit against their co-workers who’s
adverse action was directly related to Plaintiff’s protected conduct
violations of his 1st Amendment right to redress the government for
grievance and his 14h amendment right to due process of law….”
(Amd. Comp., p. 6).
ANALYSIS
It is still difficult to discern the Plaintiff’s specific claims or
whether he has adequately alleged any violations of his
constitutional rights. For instance, the fact that Nurse Ore made
unprofessional comments or did not follow a specific protocol does
not rise to the level of a constitutional violation. Nonetheless, if the
Plaintiff can demonstrate the repeated problems with receiving
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medically mandated dialysis treatment lead to the additional
medical problems claimed, he may be able to demonstrate the
Defendants were deliberately indifferent to his serious medical
condition. The Plaintiff may also be able to demonstrate a policy or
practice of denying adequate dialysis. Finally, while not artfully
pled, it is also possible the Plaintiff might be able to demonstrate
the Defendants refused to provide him regular dialysis in retaliation
for his previous lawsuit against Rushville workers which was filed
May 28, 2013 and is still pending. See Scott v Smith, Case No. 133157.
It is not entirely clear how the non-medical Defendants were
responsible for determining whether the Plaintiff received dialysis,
but this is not an issue which can be addressed during the initial
review.
Finally, the court notes the Plaintiff has filed a motion for
appointment of counsel. [3] In considering the Plaintiff’s motion,
the court asks: “(1) has the indigent Plaintiff made a reasonable
attempt to obtain counsel or been effectively precluded from doing
so; and if so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d
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647, 654-55 (7th Cir. 2007), citing Farmer v. Haas, 990 F.2d 319,
322 (7th Cir.1993). The Plaintiff has not provided any evidence that
he has attempted to find counsel on his own such as a list of
attorneys contacted or copies of letters sent or received. Therefore,
the motion is denied with leave to renew. [3]
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 the following federal constitutional claims
against Defendants Ore, Morton, Taylor, Wessel and Pennock: 1)
the Defendants were deliberately indifferent to his serious medical
condition when they repeatedly refused to provide dialysis leading
to additional health problems; and, 2) the Defendants repeatedly
refused to provide dialysis in retaliation for the Plaintiff’s previous
lawsuit. 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.

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2.

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.
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
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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 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.

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8.

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.
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).
10. The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
11. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
12. The Plaintiff’s motion for appointment of counsel is
denied with leave to renew.[3]
ENTERED: January 14, 2015

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FOR THE COURT:

                            s/ Sue E. Myerscough

       __________________________________________ 
                                                 SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE 

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