Diggs v. Wexford Health Source et al

Filing 8

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 12/19/2016. Rule 16 Deadline 2/17/2017. The clerk is directed to attempt service on the remaining defendants pursuant to the standard procedures. The clerk is directed to terminate Dr. A. Cordoba as a defendant. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act.(LN, ilcd)

E-FILED

Monday, 19 December, 2016 01:18:47 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROBERT DIGGS,

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)
Plaintiff,
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vs.
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WEXFORD HEALTH SOURCES, INC., )
et al.,
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)
Defendants.
)

16-4214

MERIT REVIEW ORDER
This case is before the court for a merit review of the plaintiff's claims. The court
is required by 28 U.S.C. '1915A to Ascreen@ 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 A(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 Astate 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.
The plaintiff, proceeding pro se, and currently incarcerated in the Hill
Correctional Center was granted leave to proceed in forma pauperis. The plaintiff filed
this lawsuit pursuant to 42 U.S.C. '1983 alleging that he slipped and injured his foot
while attempting to climb to the top bunk in his cell. Plaintiff alleges that he received
pain medication, an ACE bandage, and slow walk, low bunk, and low gallery permits.
Plaintiff alleges that x-rays showed no fracture, but did not otherwise disclose the cause
of his pain. Plaintiff alleges his requests for an MRI, CAT scan, surgery, and medical
specialist were denied. Plaintiff also alleges that his low-bunk permit was not always
honored because his cellmate also had a low-bunk permit. Plaintiff alleges that he sent
letters to the warden, IDOC medical director, and IDOC director. Documents attached
to Plaintiff’s complaint show that these individuals inquired with medical staff at the
prison regarding Plaintiff’s treatment.

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Liberally construed, Plaintiff states a constitutional claim for deliberate
indifference to a serious medical need against defendants Sood, Ritz, Wexford, Shicker,
Baldwin, and Dorethy. See Pyles v. Fahim, 771 F.3d 403, 412 (7th Cir. 2014) (refusal to
refer inmate to medical specialist may support an inference of deliberate indifference);
Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015) (“An inmate’s correspondence to a
prison administrator may thus establish a basis for personal liability under § 1983 where
that correspondence provides sufficient knowledge of a constitutional deprivation.”).
Plaintiff, however, does not state a claim against defendant Cordoba. No
inference exists that this defendant was responsible for Plaintiff’s treatment, and
Plaintiff’s only allegation is that this defendant misread the x-rays of his foot. Even if
defendant Cordoba did so, this is not enough to support a finding of deliberate
indifference. McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (“Even gross negligence is
insufficient to impose constitutional liability.”).
IT IS THEREFORE ORDERED that:
1.
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 defendants Sood, Ritz, Wexford, Shicker,
Baldwin, and Dorethy. 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. 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.
3.
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.
4.
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
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shall not be maintained in the public docket nor disclosed by the clerk.
5.
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.
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 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.
7.
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.
8.
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.
9.
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 Accountability Act.
11.

The clerk is directed to terminate Dr. A. Cordoba as a defendant.

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12.
The clerk is directed to attempt service on the remaining defendants
pursuant to the standard procedures.
Entered this 19th day of December, 2016.
/s/ Harold A. Baker
_________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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