Considine v. Rankin et al
MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 9/19/2016. (Rule 16 Deadline 11/18/2016.) The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The clerk is directed to attempt service on the two Defendants pursuant to the standard procedures. The plaintiffs motion for leave to file amended complaint 15 is granted. (LN, ilcd)
Monday, 19 September, 2016 01:54:26 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
THOMAS MICHAEL CONSIDINE,
DR. WILLIAM RANKIN and
MERIT REVIEW ORDER
The Plaintiff, proceeding pro se, and currently incarcerated in the East
Moline Correctional Center, was granted leave to proceed in forma pauperis. This
case is before the Court for a merit review of the Plaintiff's claims. The Plaintiff
has recently filed a motion for leave to amend his complaint which is granted
pursuant to Federal Rule of Civil Procedure 15.
The Court is 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 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 amended 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. While the Court will consider the claims in the
body of Plaintiff’s amended complaint, the Court will review the
not consider the nearly 80 pages of attached exhibits for claims. Since Federal
Rule of Civil Procedure 8 requires a short and plan statement of any intended
claim, the Court will only consider the allegations stated in the amended
The Plaintiff says he suffers from a serious medical condition called
Piriformis Syndrome which makes it very difficult for him to walk without
falling. The Plaintiff also says his injury is a disability pursuant to the Americans
with Disabilities Act(ADA). Nonetheless, the Defendants failed to provide
needed medical care and failed to accomodate his disability when they refused to
move him to a medical setting where he would not need to walk as far for dietary
and medical. As a result, Plaintiff says he fell and injured himself on April 25,
For the purposes of notice pleading, Plaintiff may proceed with his claims
pursuant to the Eighth Amendment and ADA. However, Plaintiff will need to
clarify the specific involvement of each Defendant during the discovery process.
Finally, the Court notes Plaintiff makes vague reference to medical
negligence in his amended complaint. (Amd. Comp., p. 10). While far from clear,
if the Plaintiff was attempting to state a medical malpractice claim, his complaint
is insufficient. Illinois law requires any Plaintiff who is seeking damages for
medical malpractice must also file an affidavit with the complaint providing
required information. See 735 Ill. Comp. Stat. § 5/2-622(a). Failure to file the
required affidavit is grounds for dismissal of the claim. 735 Ill. Comp. Stat. § 5/2622(g).
IT IS THEREFORE ORDERED that:
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 indifferent to a serious medical need and an ADA claim
against defendant Dr. William Rankin and Tina Jepsen. 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).
The clerk is directed to enter the standard qualified protective
order pursuant to the Health Insurance Portability and Accountability Act.
The clerk is directed to attempt service on the two Defendants
pursuant to the standard procedures.
The plaintiff’s motion for leave to file amended complaint
(#15) is granted.
Entered this 19th day of September, 2016.
/s/ Harold A. Baker
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?