Evans v. Griffin et al
Filing
8
MERIT REVIEW & CASE MANAGEMENT ORDER entered by Judge Harold A. Baker on 5/25/2016. Rule 16 Deadline 7/25/2016. See written Order.(DS, ilcd)
E-FILED
Wednesday, 25 May, 2016 01:28:14 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JOHN EVANS,
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Plaintiff,
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v.
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16‐3093
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SUSAN GRIFFIN, et al.,
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Defendant.
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MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, and currently incarcerated in the Graham
Correctional Center, was granted leave to proceed in forma pauperis. The case is now
before the court for a merit review of the plaintiff’s claims. The court is required by 28
U.S.C. § 1915A to “screen” the plaintiff’s complaint, and through such process to identify
and dismiss any legally insufficient claim, or the entire action if warranted. A claim is
legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or (2) seeks monetary relief from a defendant who is immune from such
relief.” 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).
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)(citation omitted). The court has reviewed the complaint and has also held a
video 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 claiming that he has nasal
polyps and for approximately seven (7) months has suffered severe pain and discomfort
from a runny nose, persistent stuffiness, postnasal drip, decreased sense of taste, facial pain
and headaches, itchy eyes and pressure over his forehead and face. The plaintiff alleges
that Medical Director Griffin and Dr. Kayira have refused to send him to an outside
otolaryngologist for diagnosis despite his repeated requests, and that the medications
prescribed by Dr. Kayira are not relieving his symptoms.
“Delay in treating a condition that is painful even if not life threatening may well
constitute deliberate indifference…” Gonzalez v. Feinerman, 663 F.3d 311, 315 (2011); see
Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005)(persistence in administering treatment
known to be ineffective could support a claim of deliberate indifference). Plaintiff’s
allegations that he has been suffering from nose polyps for seven months and that the
treatment he is receiving has not helped support a claim of deliberate indifference to a
serious medical condition to survive merit review, and the case will proceed accordingly.
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 an Eighth Amendment claim for deliberate indifference
to a serious medical condition against defendants Susan Griffin and Dr. Kayira. 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.
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 clerk is directed to attempt service on the defendants pursuant to the
standard procedures.
12. Plaintiff’s motion for counsel is denied [5], with leave to renew upon
demonstrating that he made attempts to hire his own counsel. Pruitt v. Mote, 503 F.3d 647,
654‐55 (7th Cir. 2007). This typically requires writing to several lawyers and attaching the
responses. If Plaintiff renews his motion, he should set forth how far he has gone in school,
any jobs he has held inside and outside of prison, any classes he has taken in prison, and
any prior litigation experience he has.
Entered this 25th day of May, 2016.
/s/ Harold A. Baker
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HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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