Knee v. Wexford Healthcare et al

Filing 6

MERIT REVIEW AND CASE MANAGEMENT ORDER entered by Chief Judge James E. Shadid on 5/22/2017. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Dismiss Defendant Wexford for failure to state a claim upon which relief can be granted. 2) Deny Plain tiff's motion for appointment of counsel with leave to renew, 5 ; 3) Attempt service on Defendant pursuant to the standard procedures; 4) set an internal court deadline 60 days from the entry of this order for the court to check on the status of service and enter scheduling deadlines and 5) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. See full written Order.(VH, ilcd) Modified on 5/22/2017 correct spelling

E-FILED

Monday, 22 May, 2017 10:32:36 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
RONALD KNEE,

WEXFORD HEALTHCARE, et al.,
Defendants

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Case No. 17-3052

MERIT REVIEW AND CASE MANAGEMENT ORDER
This cause is before the Court for merit review of the Plaintiff’s complaint and
consideration of his motion for appointment of counsel. [5].
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.
The Plaintiff, a pro se prisoner, says his constitutional rights were violated at
Jacksonville Correctional Center by Wexford Healthcare and Dr. Goodman. Plaintiff
was injured while working at the facility on January 7, 2015. As a result, Plaintiff has
suffered with “extreme pain throughout his back and down his legs.” (Comp., p. 4).
Nonetheless, Dr. Goodman failed to take x-rays or even fully examine Plaintiff.
Plaintiff says he has made several requests for medical care and admits he has received
some pain relievers, but he claims Dr. Goodman has refused to provide any other

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treatment. Consequently, Plaintiff’s condition has deteriorated” over the last two years.
(Comp., p. 5).
To establish an Eighth Amendment violation, Plaintiff must demonstrate he
suffered from a serious medical condition and the Defendant was deliberately
indifferent to that condition. See Farmer v Brennan, 511 U.S. 825 (1994). An inmate may
demonstrate a medical professional was deliberately indifferent if he presents “evidence
that the patient repeatedly complained of enduring pain with no modifications in care.”
Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016). Plaintiff has alleged Dr. Goodman
violated his Eighth Amendment rights. However, Plaintiff has not articulated an
official capacity claim against Dr. Goodman’s employer, Wexford Healthcare.
Therefore, the Court will dismiss Defendant Wexford.
The Court notes Plaintiff’s injury occurred outside the two year statute of
limitations period, but Plaintiff has alleged he suffered from a continuing violation of
his constitutional rights. See Jervis v. Mitcheff, 258 Fed.Appx. 3, 5–6 (7th Cir. 2007)
(“Deliberate indifference to a serious medical need is a continuing violation that accrues
when the defendant has notice of the untreated condition and ends only when
treatment is provided or the inmate is released.”). However, Plaintiff‘s complaint
indicates his current address is Taylorville Correctional Center.(Comp., p. 1). Therefore,
his claim before this Court is limited to his medical care from his injury to his transfer to
another facility.
In addition, it is unclear from Plaintiff’s complaint whether Plaintiff exhausted
his administrative remedies for his claim before filing his lawsuit. Plaintiff has checked
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the box on his complaint form indicating he completed the grievance procedure.
(Comp., p. 3). Nonetheless, Plaintiff attached only partial grievances to his complaint.
Defendants may choose to address this issue in a motion for summary judgment.
Finally, Plaintiff has filed a motion for appointment of counsel.[5] Plaintiff has
no constitutional right to the appointment of counsel and the Court cannot require an
attorney to accept pro bono appointment in a civil case. The most the Court can do is
ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.
1992). Nonetheless, in considering Plaintiff’s motion, the Court must ask two questions:
“(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the difficulty of the case, does
the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th
Cir. 2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). Plaintiff states he has
written letters to attorneys, but he has not provided evidence of a reasonable attempt to
find counsel on his own such as a copy of any letters sent or received or a list of
attorneys contacted. Therefore, his motion is denied with leave to renew.[5]
IT IS THEREFORE ORDERED that:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges Dr. Goodman was deliberately indifferent to his
back and leg pain in violation of Plaintiff’s Eighth Amendment rights. The claim
is stated against the Defendant in this individual capacity only. Any additional
claims shall not be included in the case, except at the Court’s discretion on

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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 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 service 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 Order. 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) Once counsel has appeared for a Defendant, Plaintiff need not send copies of
his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will
file Plaintiff's document electronically and send a notice of electronic filing to
defense counsel.

The notice of electronic filing shall constitute service on

Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not
available, Plaintiff will be notified and instructed accordingly.
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) 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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IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendant Wexford for failure to state a claim upon which relief
can be granted. 2) Deny Plaintiff’s motion for appointment of counsel with
leave to renew, [5]; 3) Attempt service on Defendant pursuant to the standard
procedures; 4) set an internal court deadline 60 days from the entry of this
order for the court to check on the status of service and enter scheduling
deadlines and 5) enter the Court's standard qualified protective order pursuant
to the Health Insurance Portability and Accountability Act.
ENTERED this 22nd day of May, 2017.

s/ James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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