Gibson v. Howard et al

Filing 12

MERIT REVIEW ORDER entered by Chief Judge James E. Shadid on 7/9/2018. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Grant Plaintiff's motion for leave to amend his complaint pursuant to Federal Rule of Civil Procedure 15. 11 ; 2) At tempt service on Defendants pursuant to the standard procedures; 3) 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 4) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE FULL WRITTEN ORDER.(SAG, ilcd)

E-FILED

Monday, 09 July, 2018 02:20:44 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
CRAIG GIBSON,
Plaintiff,
vs.
S. HOWARD and Dr. KAYIRA,
Defendants

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No. 18-3006

MERIT REVIEW ORDER
This cause is before the Court for consideration of Plaintiff’s motion for leave to
file an amended complaint. [11].
Plaintiff’s original complaint alleged Dr. Kayira and Health Care Administrator
Howard were deliberately indifferent to his serious medical condition at Graham
Correctional Center. [1]. However, Plaintiff’s complaint detailed medical care he
received from June 23, 2017 through August 28, 2017 for a bad cough due to bronchitis
including two rounds of antibiotics and chest x-rays.
During Plaintiff’s visit with Dr. Kayira in August of 2017, Plaintiff reported no
improvement with his cough. However, Plaintiff was breathing normally and his chest
x-ray was normal. Specifically, a July 12, 2017 x-ray showed Plaintiffs lungs were clear,
and his heart and circulatory system were within normal limits. (Comp., [1], p. 22). The
doctor noted a possible underlying mental health problem and referred Plaintiff for an
evaluation. (Comp., p. 19). Plaintiff claims Dr. Kayira also stated he would not see
Plaintiff again for his complaints of a persistent cough.

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Plaintiff filed a grievance and Health Care Administrator Howard responded
again noting his x-ray was normal, but “you may submit a request slip to see
healthcare.” (Comp., [1],p. 24, 25).
In its original merit review order, the Court noted it was not clear whether
Plaintiff was suffering from a serious medical condition in terms of the Eighth
Amendment, but “for the purposes of notice pleading, the Court will assume his
persistent cough which lasted over several months does meet this standard.” April 2,
2018 Merit Review Order, p. 3. Nonetheless, Plaintiff’s complaint demonstrated he did
receive medical care until August 28, 2017, and Plaintiff did not allege he had requested
any subsequent medical care for his cough.
The Court noted if Plaintiff was simply alleging he should have been sent to an
outside specialist, then he had failed to articulate a constitutional violation. However,
Plaintiff was given additional time to file an amended complaint if Plaintiff believed he
could articulate a constitutional violation based on the events after August 28, 2017. See
April 2, 2018 Merit Review Order. “Plaintiff musts explain whether he made any
requests for medical care after the August 2017 visit, and if so, what happened.” April 2,
2018 Merit Review Order, p. 4.
Plaintiff has now responded with his motion for leave to amend which is granted
pursuant to Federal Rule of Civil Procedure 15. [11]. The Court is still required by 28
U.S.C. §1915A to “screen” the Plaintiff’s amended 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
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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.
Plaintiff’s amended complaint outlines some of Plaintiff’s actions after his last
visit with Dr. Kayira which either do not state a constitutional violation, or clearly are
not the proper way to request medical care within the correctional center. For instance,
Plaintiff says he wrote to the warden, and he wrote to Defendant Howard asking to be
seen by a specialist.
Nonetheless, Plaintiff also alleges he put in a sick call request slip on September
3, 2017 for his persistent cough and he was not allowed any additional medical care for
this ongoing condition. At the screening stage, the Court must “accept as true all facts
alleged in the complaint and draw all reasonable inferences from them in the plaintiff’s
favor.” Kimmons v. Waupun Property Staff, 1 Fed.Appx. 496, 498 (7th Cir. 2001).
Therefore, for the purposes of notice pleading, Plaintiff has alleged Defendants Dr.
Kayira and Howard were deliberately indifferent to his serious medical condition when
they refused any additional medical care for his persistent cough after August 28, 2017.
Plaintiff is reminded his disagreement with the doctor’s assessment of his
condition is not sufficient to demonstrate a constitutional violation. See Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014). In order to succeed on his claim, Plaintiff must be able
to demonstrate he suffers from a serious medical condition related to his cough.
The Court will attempt to serve the Defendants and once they are in the case, this
matter will be set for a telephone status conference. At the hearing, the Court will
clarify Plaintiff’s claims. For instance, did he put in additional requests for sick call,
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was he seen by medical staff, and has anyone ever diagnosed him with a serious
medical condition?
If instead, Plaintiff would prefer to dismiss his lawsuit, he may file a motion to
voluntarily dismiss within 14 days and the Court will waive the remainder of his filing
fee.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the amended complaint under 28 U.S.C. §
1915A, the Court finds the Plaintiff alleges Defendants Dr. Kayira and Howard
were deliberately indifferent to his serious medical condition when they refused
any additional medical care for his persistent cough after August 28, 2017.
The claim is stated against the Defendants in their individual capacities only.
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.
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
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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 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
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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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Grant Plaintiff’s motion for leave to amend his complaint pursuant to
Federal Rule of Civil Procedure 15. [11]; 2) Attempt service on Defendants
pursuant to the standard procedures; 3) 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 4) enter the Court's standard qualified
protective order pursuant to the Health Insurance Portability and
Accountability Act.
ENTERED this 9th day of July, 2018.

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

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