Blakes v. Smith
MERIT REVIEW OPINION( Rule 16 Deadline 1/8/2018.): This case is now in the process of service. The Court will attempt service on Defendants by mailingeach Defendant a waiver of service. Plaintiff's motion for the Court to appoint counsel is deni ed 4 on this record. The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 11/9/2017. (ME, ilcd)
Thursday, 09 November, 2017 03:42:11 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KEENAN M. SMITH
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Western
Illinois Correctional Center. His Complaint is before the Court for a
merit review 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.
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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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)(quoted cite omitted).
Plaintiff alleges that on October 13, 2015, Defendant Smith
refused to allow Plaintiff to go see the dentist to have a tooth
removed which was causing Plaintiff extreme pain and preventing
Plaintiff from eating anything but soft food. That day, Plaintiff
possessed a mandatory call pass to see the dentist, which
Defendant Smith allegedly knew, but Defendant Smith refused to
allow Plaintiff to go to the appointment, for the stated reason that
Plaintiff had slammed the foyer door. Plaintiff had to reschedule
the appointment, causing Plaintiff to suffer unnecessarily for five
more days with dizziness, severe pain, and lack of sleep.
These allegations state a plausible Eighth Amendment claim
against Defendant Smith for deliberate indifference to Plaintiff’s
serious need for dental treatment. The case will proceed for service.
IT IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth
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Amendment claim against Defendant Smith for deliberate
indifference to Plaintiff’s serious need for dental treatment. 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.
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.
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.
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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.
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 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.
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
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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.
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.
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
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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).
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.
Plaintiff’s motion for the Court to appoint counsel is
denied (4) on this record. The Court does not have the authority to
order an attorney to accept pro bono appointment on a civil case
such as this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). In
determining whether the Court should attempt to find an attorney
to voluntarily take the case without pay, the question is “given the
difficulty of the case, does the plaintiff appear competent to litigate
it himself?" Pruitt, 503 F.3d at 654-55 (7th Cir. 2007). On this
record, Plaintiff appears competent to proceed pro se. His pleadings
adequately convey the factual basis for his claims, and he already
has personal knowledge of the relevant facts of this relatively simple
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claim. Additionally, Plaintiff has some experience litigating in
federal court. Plaintiff may renew his motion on a more developed
factual record, setting forth his educational level, any jobs he has
had inside or outside of prison, any classes he has taken in prison,
and his litigation experience in state and federal court.
The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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