Johnson v. Durr et al
Filing
9
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 7/22/2015. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that the Plaintiff states a claim for deliberate indifference to his serious medical nee ds. This case is now in the process of service. Defendant Dr Leonard Rybak is dismissed, without prejudice. Sangamon County Medical Staff is dismissed as a Defendant. The Plaintiff's motions to compel, d/e's 5 , 6 and 8 are denied with leave to renew. Entered by Judge Sue E. Myerscough on 7/22/2015. (MAS, ilcd)
E-FILED
Wednesday, 22 July, 2015 01:14:08 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MARCUS I. JOHNSON,
Plaintiff,
v.
TERRY DURR, et al.,
Defendants.
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15-CV-3109
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se and incarcerated in the Sangamon
County Jail, seeks leave to proceed in forma pauperis on claims of
deliberate indifference to his serious medical needs regarding a
painful and chronic ear condition. The Court explained to Plaintiff
that he needs to name as defendants the medical professionals who
are treating him, but Plaintiff has been unable to do so. See
Plaintiff’s motions to compel, d/e’s 5, 6, 8.
At this point, the most expedient way to discover the names of
the medical providers is to serve the Complaint on Defendant Durr,
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even though Durr cannot be liable if he reasonably relied on the
professional judgment of the medical providers. See Donald v. Cook
County Sheriff’s Dept., 95 F.3d 548, 556 (7th Cir. 1996)(to assist a
pro se plaintiff in identifying defendants, court may “allow[] the case
to proceed to discovery against high-level administrators with the
expectation that they will identify the officials personally
responsible.”). After counsel has appeared on Defendant Durr’s
behalf, then Plaintiff should send discovery requests to defense
counsel to discover the names of the proper defendants.
IT IS THEREFORE ORDERED:
1)
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states a 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 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
filing any motions, in order to give Defendants notice and an
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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 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.
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
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)
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 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.
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 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
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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 Defendants is hereby granted leave to depose
Plaintiff at his 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.
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 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).
10) Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
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11) Dr. Leonard Rybak, a private ear, nose, and throat
specialist, is dismissed, without prejudice because no plausible
inference arises that Dr. Rybak is a state actor. If Plaintiff
seeks to pursue a malpractice claim against Dr. Rybak, then
Plaintiff must attach the affidavit and report required by 735
ILCS 5/2-622(a).
12) Defendant “Sangamon County Medical Staff” is
dismissed as a Defendant because the “staff” is not an
identifiable entity that can be sued under 42 U.S.C. Section
1983.
13) The clerk is directed to terminate Dr. Rybak and the
Sangamon County Medical Staff.
14) The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendant Durr pursuant to the standard
procedures.
15)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
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16)
Plaintiff’s motions to compel are denied with leave
to renew after he tries to obtain the information from defense
counsel (d/e’s 5, 6, 8).
ENTERED:
July 22, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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