Tisdale v. Wexford Health Sources, Inc et al

Filing 13

MERIT REVIEW OPINION Entered by Judge Harold A. Baker on 3/13/2017. See written Order. 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 the defendants pursuant to the standard procedures.Plaintiffs motion for preliminary injunction (#6) is denied.(ED, ilcd)

E-FILED

Monday, 13 March, 2017 04:05:59 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ERNIE TISDALE,
Plaintiff,
v.
WEXFORD HEALTH SOURCES,
INC., et al.,
Defendants.

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17-CV-3005

MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, and currently incarcerated at 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 he
suffers from a hernia and that prison officials have refused to send him to an outside
specialist despite his complaints that his condition is getting worse.
Plaintiff states a claim for deliberate indifference to a serious medical need. See
Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (refusal to engage specialist and
persistence in a course of treatment known to be ineffective can support an inference of
deliberate indifference).
Plaintiff filed a motion for injunctive relief. A preliminary injunction is “an
extraordinary and drastic remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968,
972 (1997); accord Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A
preliminary injunction is an extraordinary remedy never awarded as of right”). To

prevail, “the moving party must demonstrate: (1) a likelihood of success on the merits;
(2) a lack of an adequate remedy at law; and (3) an irreparable harm will result if the
injunction is not granted.” Foodcomm Int’l v Barry, 328 F.3d 300, 303 (7th Cir. 2003)
(citations omitted). If the moving party meets the first three requirements, then the
district court balances the relative harms that could be caused to either party. Incredible
Tech., Inc. v. Virtual Tech., Inc., 400 F.3d 1007, 1011 (7th Cir. 2005).
The defendants in this case have not yet been served. The Court cannot enter a
preliminary injunction at this time because Rule 65(a) of the Federal Rules of Civil
Procedure states that a court “may issue a preliminary injunction on only on notice to
the adverse party.” Fed. R. Civ. P. 65(a). The Court may issue a temporary restraining
order without notice to an adverse party, but only upon a showing that “immediate and
irreparable injury, loss, or damage will result before the adverse party can be heard in
opposition,” and presentation of a written certification as to the efforts that have been
made to notify the adverse party and the reasons why notice should not be required.
Fed. R. Civ. P. 65(b). Plaintiff has presented neither.
Plaintiff has also not shown that he will suffer irreparable harm if an injunction
does not issue. Therefore, plaintiff=s request for injunctive relief is denied at this time
but may be consolidated with the other matters for a trial on the merits pursuant to
Fed.R.Civ.P. 65(a)(2).
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’s motion for preliminary injunction (#6) is denied.
Entered this 13th day of March, 2017

/s./Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE