Clark v. Furlong et al
Filing
7
MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 2/5/2015 (Rule 16 Deadline 4/6/2015.) This case is now in the process of service. The plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions, in order to give the defendants notice and an opportunity to respond to those motions. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The plaintiff's M otion for Leave to Proceed in forma pauperis [#3] is granted. The plaintiff's Motion for Service at the government's expense 5 is DENIED. The clerk is directed to issue Waivers of Service to defendants Kenfield and Doe as provided in this order. No service shall be ordered on defendant Furlong at this time. (LN, ilcd)
E-FILED
Thursday, 05 February, 2015 02:15:27 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JOE CLARK,
Plaintiff,
v.
D. FURLONG, et al.,
Defendants.
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Case No. 14-CV-3397
MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, a pretrial detainee at the Rushville Treatment
and Detention Facility is requesting leave to proceed under a reduced payment
procedure for indigent plaintiffs who are institutionalized but are not prisoners as
defined in 28 U.S.C. Section 1915(h).
The case is now 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 the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649
(7th Cir. 2013). The Court has reviewed the Complaint and has also held a merit review
hearing in order to give the plaintiff a chance to personally explain his claims to the
Court.
The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 complaining that
defendant Furlong repeatedly refused to clean his teeth while plaintiff was incarcerated
at Tamms Correctional Center from 1/27/2005 to 12/28/2012. On 12/28/2012, plaintiff
was transferred to Pontiac Correctional where he underwent routine dental screenings
by dentist Melissa Kenfield who also allegedly refused to clean his teeth. Two days
prior to plaintiff’s release from Pontiac he spoke with Debbie “Doe”, a dental hygienist
who told him he was on a schedule to have his teeth cleaned. Plaintiff asked Doe to
expedite the process so it could be accomplished in the next 2 days. She did not so do.
Plaintiff alleges deliberate indifference to his serious medical needs which has resulted
in bone loss, periodontal disease and heavy tartar buildup as well as emotional distress.
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Plaintiff attempts to impermissible join unrelated defendants and unrelated
claims. See Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011). Plaintiff’s claim against
defendant Furlong occurred at Tamms Correctional Center. Tamms Correctional
Center (which is now closed) was located in Alexander County, which is in the United
States District Court for the Southern District of Illinois. If the plaintiff wishes to pursue
his claim against defendant Furlong, he must file a motion to sever that claim from this
case within 28 days. If plaintiff chooses to go forward with the severed case, the court
will open a new case for transfer to the Southern District of Illinois for a merit review
pursuant to 28 U.S.C. § 1915A. If the plaintiff does not file a motion to sever, that claim
will be dismissed without prejudice.
The only claim remaining in this action is plaintiff’s claim for deliberate
indifference against defendants Kenfield and Doe, which occurred at the Pontiac
Correctional Center.
IT IS THEREFORE ORDERED:
1.
Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the
Court finds that the plaintiff states a Fourteenth Amendment due process claim for
cruel and unusual punishment against defendants Kenfield and Doe. 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. The plaintiff is advised to wait
until counsel has appeared for the defendants before filing any motions, in order to give
the 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. The 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 the defendants by mailing each
defendant a waiver of service. The defendants have 60 days from the date the waiver is
sent to file an answer. If the defendants have not filed answers or appeared through
counsel within 90 days of the entry of this order, the plaintiff may file a motion
requesting the status of service. After the defendants have been served, the Court will
enter an order setting discovery and dispositive motion deadlines.
4.
With respect to a defendant who no longer works at the address provided
by the 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.
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5.
The 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 the defendants' positions. The Court does not rule on the merits of those
positions unless and until a motion is filed by the defendants. Therefore, no response to
the answer is necessary or will be considered.
6.
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 the plaintiff with the Clerk. The plaintiff does not
need to mail to defense counsel copies of motions and other papers that the 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. The 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.
7.
Counsel for the defendants is hereby granted leave to depose the plaintiff
at his place of confinement. Counsel for the defendants shall arrange the time for the
deposition.
8.
The plaintiff shall immediately notify the Court, in writing, of any change
in his mailing address and telephone number. The 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. Marshals 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 plaintiff’s Motion for Leave to Proceed in forma pauperis (#3) is
granted. The plaintiff’s Motion for Service at the government’s expense is DENIED.
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12.
The clerk is directed to issue Waivers of Service to defendants Kenfield
and Doe as provided in this order. No service shall be ordered on defendant Furlong at
this time.
Entered this 5th day of February, 2015.
/s/Harold A. Baker
________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT COURT
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