Flowers v. Kottemann et al
MERIT REVIEW OPINION Entered by Judge Harold A. Baker on 4/10/2018. See written Order. 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 in difference to a serious medical need against Defendant Kottemann and an official policy claim against Wexford. This case is now in the process of service. The clerk is directed to enter the standard qualified protective order pursuant to the Health I nsurance Portability and Accountability Act. The clerk is directed to terminate E. Moreland as a defendant.The clerk is directed to add Wexford Health Sources, Inc., as a Defendant and attempt service on Defendants Kottemann and Wexford pursuant to the standard procedures.Plaintiffs motion for counsel 5 is denied, with leave to renew upon demonstrating that he made attempts to hire his own counsel. (ED, ilcd)
Tuesday, 10 April, 2018 04:03:02 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
KOTTEMANN, et al.,
MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, 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.
Plaintiff is currently incarcerated at East Moline Correctional
Center, but his claims arise out of Lincoln Correctional Center.
Plaintiff alleges that he needs a hip replacement, but that
Defendant Kottemann, the prison doctor, refuses to provide it for
financial reasons. Plaintiff also alleges that Defendant Moreland,
his correctional counselor, “agreed” with Defendant Kottemann.
Exhibits attached to Plaintiff’s complaint indicate that Defendant
Moreland responded to Plaintiff’s grievance on the issue by
consulting with the healthcare unit.
Plaintiff states a claim for deliberate indifference to a serious
medical need against Defendant Kottemann. See Petties v. Carter,
836 F.3d 722, 729-30 (7th Cir. 2016) (en banc). Plaintiff’s
allegations also allow for a plausible inference that the alleged
constitutional deprivation was caused by a cost-cutting policy
promulgated by Wexford Health Sources, the corporation contracted
to provide medical services at Illinois prisons. Accordingly, Plaintiff
also states a Monell claim against Wexford. Monell v. Dept of Social
Serv. of City of New York, 436 U.S. 658 (1978).
Plaintiff, however, does not state a claim against Defendant
Moreland for his alleged role in the grievance process. Non-medical
prison personnel are entitled to defer to the treatment decisions
made by medical professionals providing treatment. Berry v.
Peterman, 604 F.3d 435, 440 (7th Cir. 2010).
Plaintiff made an oral motion for injunctive relief at the
hearing but did not present this as an emergency or claim that he
will suffer irreparable harm if the matter is left to be decided in the
normal course. Plaintiff=s request for injunctive relief is denied at
this time but will 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:
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 Defendant Kottemann and an official policy claim
against Wexford. 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. 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.
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.
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.
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.
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.
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.
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.
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
11. The clerk is directed to terminate E. Moreland as a
12. The clerk is directed to add Wexford Health Sources, Inc.,
as a Defendant and attempt service on Defendants Kottemann and
Wexford pursuant to the standard procedures.
13. Plaintiff’s motion for counsel  is denied, with leave to
renew upon demonstrating that he made attempts to hire his own
counsel. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This
typically requires writing to several lawyers and attaching the
responses. If Plaintiff renews his motion, he should set forth how
far he has gone in school, any jobs he has held inside and outside
of prison, any classes he has taken in prison, and any prior
litigation experience he has.
Entered this 10th day of April, 2018
/s/Harold A. Baker
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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