Perry v. Baldwin et al

Filing 11

MERIT REVIEW OPINION Entered by Judge Sue E. Myerscough on 10/23/2017. See written Order. The following Defendants are dismissed without prejudice: John Baldwin, Kess Roberson, Nurse Hawkins, Nurse Wilson, Nurse Rose, Nurse Jennings, Nurse Holly, Nurse Rhonda Karr, Nurse Lacy, Nurse Brooke Hopps, Nurse Mary Chris Dawson, Nurse Alexander, Counselor Lile, Grievance Officer Tiffanie Clark, CAO Doe, and Nurse Does #21, 22, 24, and 25. The clerk is directed to attempt service on Defendants Dr. El azegui, Dr. Kotteman, Nurse Tina Batterton, Health Care Unit Administrator Lisa Hopp, and Wexford Health Sources, Inc., pursuant to the standard procedures. The clerk is unable to serve Defendant #23 without at least a last name. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (ED, ilcd)

E-FILED

Monday, 23 October, 2017 02:35:56 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DARRYL PERRY,
Plaintiff,
v.
JOHN BALDWIN, et al.,
Defendants.

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17-CV-3185

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff filed this case pro se from his incarceration in the
Lincoln Correctional Center. He has since been released, but the
Court is still required to review the Complaint pursuant to 28
U.S.C. § 1915A. This section requires the Court to identify
cognizable claims stated by the Complaint or dismiss claims that
are not cognizable.1 In reviewing the complaint, the Court accepts
the factual allegations as true, liberally construing them in
Plaintiff's favor and taking Plaintiff’s pro se status into account.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
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A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).

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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)(quoted
cite omitted).
Plaintiff alleges that he was denied and delayed his
prescription for Gabapentin, which had been prescribed to Plaintiff
outside the IDOC to treat Plaintiff’s severe pain from degenerative
disc disease and arthritis. Without the prescription, Plaintiff
suffered “severe needle-like stabbing pain” and “severe pain from
his neck down to his leg on the right side of the body.” (Compl. pp.
7-8.)
These allegations state a plausible Eighth Amendment claim
for deliberate indifference to Plaintiff’s serious medical needs.
However, only the medical professionals with the authority to
prescribe or approve that medicine could bear personally
responsibility for the delay or denial. The fact that Plaintiff told all
25 Defendants about the problem does not allow an inference that
all 25 Defendants were personally responsible for the delay or
denial. The non-medical Defendants are entitled to rely on the
professional judgment of the treating doctors and nurses, and
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denying a grievance is not enough to confer liability. Greeno v.
Daley, 414 F.3d 645, 656 (7th Cir. 2005)(“‘If a prisoner is under the
care of medical experts... a nonmedical prison official will generally
be justified in believing that the prisoner is in capable
hands.’”)(quoted cite omitted); George v. Smith, 507 F.3d 605, 60910 (7th Cir. 2007) (“Only persons who cause or participate in the
violations are responsible. Ruling against a prisoner on an
administrative complaint does not cause or contribute to the
violation.”); Soderbeck v. Burnett County, 752 F.2d 285, 293 (7th
Cir. 1985)(“Failure to take corrective action cannot in and of itself
violate section 1983. Otherwise the action of an inferior officer
would automatically be attributed up the line to his highest
superior . . . .”). Similarly, Plaintiff’s allegations that he told nurses
about the problem during medicine line does not allow a plausible
inference that those nurses had the ability to override the doctor’s
decision or speed up the approval process.
On Plaintiff’s current allegations, Plaintiff states a plausible
Eighth Amendment claim against Plaintiff’s treating doctors (Dr.
Elazegui and Dr. Kotteman), the sick call nurses (Jane Doe #23 and
Nurse Batterton), the health care administrator (Lisa Hopp), and
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Wexford Health Sources, Inc. The other Defendants will be
dismissed without prejudice to amendment.
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 an Eighth
Amendment claim for deliberate indifference to his serious medical
needs against the following Defendants: Dr. Elazegui, Dr.
Kotteman, Jane Doe #23, Nurse Batterton, Lisa Hopp, and Wexford
Health Sources, Inc. 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
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.
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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.
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
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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
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, if Plaintiff is confined at the
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time of his deposition. 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.
11)

The following Defendants are dismissed without

prejudice: John Baldwin, Kess Roberson, Nurse Hawkins, Nurse
Wilson, Nurse Rose, Nurse Jennings, Nurse Holly, Nurse Rhonda
Karr, Nurse Lacy, Nurse Brooke Hopps, Nurse Mary Chris
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Dawson, Nurse Alexander, Counselor Lile, Grievance Officer
Tiffanie Clark, CAO Doe, and Nurse Does #21, 22, 24, and 25.
12)

The clerk is directed to terminate the Defendants

listed in paragraph 11.
13)

The clerk is directed to attempt service on

Defendants Dr. Elazegui, Dr. Kotteman, Nurse Tina Batterton,
Health Care Unit Administrator Lisa Hopp, and Wexford Health
Sources, Inc., pursuant to the standard procedures. The clerk
is unable to serve Defendant #23 without at least a last name.
14)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: 10/23/2017
FOR THE COURT: United States District Court for the CD/IL.
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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