Jackson v. Wexford Health Sources, Inc. et al

Filing 9

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 12/19/2016. (Rule 16 Deadline 2/17/2017.) The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The cler k is directed to attempt service on the defendants pursuant to the standard procedures. Plaintiff was granted leave to proceed in forma pauperis on October 7, 2016. Plaintiff's second motion for leave to proceed in forma pauperis 6 is, therefore, MOOT.(LN, ilcd)

E-FILED

Monday, 19 December, 2016 12:40:35 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
TERRY JACKSON,

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Plaintiff,
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v.
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WEXFORD HEALTH SOURCES, INC., )
et al.,
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Defendants.
)

16-CV-3270

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, and currently incarcerated in the Western Illinois
Correctional Center, was granted leave to proceed in forma pauperis. The case is now
before the court for a merit review of 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 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 alleging that the
prison dentist (name unknown) failed to remove the plaintiff’s entire tooth, instead
leaving pieces of broken tooth in his gums. The plaintiff alleges that his gums became
infected, that he was prescribed antibiotics, and that the dentist has not yet removed the
remaining pieces of his tooth despite the dentist’s acknowledgement that they should
be removed. The plaintiff alleges he has filed grievances to the warden and a complaint
with the healthcare administrator. The plaintiff also alleges his treatment was the result
of an unconstitutional policy promulgated by Wexford Health Sources.
The plaintiff states a colorable claim for deliberate indifference to a serious
medical need for the alleged delay in treating the after effects of his tooth removal. See
Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010) (“A significant delay in effective
medical treatment also may support a claim of deliberate indifference, especially where

the result is prolonged and unnecessary pain.” (citation omitted)). Defendants Korte
(the warden) and Ashcraft (healthcare administrator), as non-medical prison personnel,
are permitted to defer to the medical judgment of those providing treatment to Plaintiff.
Id. at 440. The Court cannot presently determine whether they did so, but, at this stage,
the plaintiff’s allegations are sufficient. See Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir.
2015) (“An inmate’s correspondence to a prison administrator may thus establish a
basis for personal liability under § 1983 where that correspondence provides sufficient
knowledge of a constitutional deprivation.”).
In addition, the proximity in time of the alleged constitutional violation (August
2016) and the filing of Plaintiff’s complaint (October 2016) suggests that Plaintiff may
not have exhausted his administrative remedies as required by the Prisoner Litigation
Reform Act, 42 U.S.C. § 1997e(a). Plaintiff, however, “need not anticipate and overcome
affirmative defenses” at the pleadings stage and this determination, if asserted by the
defendants, should be made upon a more developed record. Sidney Hillman Health Ctr.
of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015) (citations omitted).
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 need against the named defendants. 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 was granted leave to proceed in forma pauperis on October 7, 2016.
Plaintiff’s second motion for leave to proceed in forma pauperis (#6) is, therefore, MOOT.
Entered this 19th day of December, 2016.
/s/ Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE