Latko v. Lochard et al

Filing 9

MERIT REVEW ORDER entered by Judge Joe Billy McDade on 6/19/2017. IT IS THEREFORE ORDERED:1. Plaintiff's petition to proceed in forma pauperis 3 is DENIED, with leave to reassert if he files an amended complaint. The Culbertson Hospital, St. J ohn's Hospital, PrairieCardiovascular Consultant, DHS, Schuyler County EMT, and Emergency Helicopter ServiceDefendants are DISMISSED. 2. Plaintiff will have 30 days in which to file an amended complaint against the remaining defendants. The Comp laint is to be captioned Amended Complaint and to contain all of his claims against the remaining defendants without reference to a prior pleading. He is to identify his particulars claims against the Doe Defendants to aid in their identification. 3. Plaintiff's motions for status 6 and 8 are MOOT. Plaintiff's motion for recruitment of pro bono counsel 5 is DENIED with leave to reassert. SEE FULL WRITTEN ORDER.(SL, ilcd)

E-FILED

Monday, 19 June, 2017 11:13:47 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
EDWARD LATKO,

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Plaintiff,
v.
DR. HUGHES LOCHARD, et al.,
Defendants.

No.: 16-cv-4277-JBM

MERIT REVIEW ORDER
Plaintiff, proceeding pro se and detained in the Rushville Treatment and Detention
Center, seeks leave to proceed in forma pauperis. The "privilege to proceed without posting
security for costs and fees is reserved to the many truly impoverished litigants who, within the
District Court's sound discretion, would remain without legal remedy if such privilege were not
afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). A
court must dismiss cases proceeding in forma pauperis "at any time" if the action is frivolous,
malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. §
1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the
complaint states a federal claim.
In reviewing the complaint, the Court accepts the factual allegations as true, liberally
construing them in 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)(quoted cite omitted).

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ANALYSIS
Plaintiff is civilly detained in the Rushville Treatment and Detention Center
(“Rushville”) pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS
207/1, et seq. He files a 30-page complaint naming 48 defendants. These include staff and
employees of Rushville, Culbertson Memorial Hospital, St. John’s Hospital, Prairie
Cardiovascular Consultants, Schuyler County Emergency Services, an Emergency Helicopter
Service, not otherwise identified and the Department of Human Services (“DHS”).
Plaintiff complained of pain in October and November 2015, and was diagnosed with
acid reflux. He was treated for this at the Culbertson Hospital Emergency Room on at least one
occasion. On a subsequent date, he complained of excruciating pain and was taken back to
Culbertson Hospital where he received pain medication. It appears that he was initially thought
to have acid reflux but subsequently found to be having a heart attack. Plaintiff was transported
to St. John’s Hospital by ambulance and medical helicopter. He underwent a triple heart bypass
surgery at St. John’s several days later. He alleges that the bypass surgery had to be put off for
several days due to the medication he had been given at Culbertson.
Plaintiff files a lengthy complaint asserting causes of action against all who provided him
related care and aid. He also asserts a claim against Doe DHS officials for entering into a
contract with Wexford to provide medical treatment to civil detainees at Rushville. It is well
established that deliberate indifference to a serious medical need is actionable as a violation of
the Eighth Amendment. Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008). A deliberate
indifference claim must establish “(1) an objectively serious medical condition; and (2) an
official's deliberate indifference to that condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th
Cir. 2011). Deliberate indifference is proven by demonstrating that a prison official knows of a

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substantial risk of harm to an inmate and “either acts or fails to act in disregard of that risk.” Id.
at 751.
Plaintiff’s complaint impermissibly attempts to allege § 1983 actions against two private
hospitals and a physician’s office. “In order to state a cause of action under 42 U.S.C. § 1983,
the plaintiff must allege that some person has deprived her of a federal right [and] ... he must
allege that the person who has deprived her of the right acted under color of state law.”
Brandenberger v. Norfolk S. R. Co., No. 10-117, 2010 WL 2346339, at *1 (N.D. Ind. June 7,
2010) (internal citation omitted). Acting “under color of state law” is defined as “[m]isuse of
power, possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” Monroe v. Pape, 365 U.S. 167, 184 (1961). If the alleged
infringement is not “fairly attributable to the State” there is no action under §1983. Rendell–
Baker v. Kohn, 457 U.S. 830, 838 (1982).
A § 1983 claim may be asserted against private individuals who exercise government
power only if the actions of that party are effectively directed or controlled by the state, or if the
state delegates a public function to the party. A private party's conduct can be considered state
action only if there is a sufficiently close nexus between the state and the private conduct so that
the action “may be fairly treated as that of the State itself.” Wade v. Byles, 83 F.3d 902, 904-05
(7th Cir. 1996) (internal citations omitted). Here, Plaintiff fails to allege such a nexus and the
Culbertson Hospital, St. John’s Hospital and Prairie Cardiovascular Consultant Defendants are
DISMISSED.
Plaintiff’s claim against the three DHS Doe Defendants also fails to state a claim as his
claim that they should not have contracted with Wexford does not allege the DHS Defendants’
personal participation in the alleged infringement. See Pepper v. Village of Oak Park, 430

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F.3d 809, 810 (7th Cir. 2005) (“to be liable under § 1983, the individual defendant must have
‘caused or participated in a constitutional deprivation.”’) Defendants in a § 1983 action can
only be held liable for their individual wrongdoing. Duckworth v. Franzen, 780 F.2d 645,
650 (7th Cir. 1985). “To recover for damages under 42 U.S.C. § 1983, a plaintiff must
establish defendant's personal responsibility for the claimed deprivation of a constitutional
right. However, a defendant's direct participation in the deprivation is not required. An official
satisfies the personal responsibility requirement of section 1983 if she acts or fails to act with a
deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the
constitutional deprivation occurs at her direction or with her knowledge and consent.” Smith
v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985), citing Crowder v. Lash, 687 F.2d 996, 1005 (7th
Cir. 1982). Here, Plaintiff fails to plead an Eighth Amendment violation against the DHS
Defendants and they are DISMISSED.
In his claims against the Schuyler County EMTs and the unidentified Emergency
Helicopter Service, Plaintiff attempts to join unrelated claims. While he states a potentially
colorable claim against the Rushville Defendants, this is not related to the EMTs and Helicopter
personnel who were allegedly deliberately indifferent in transporting Plaintiff. George v. Smith,
507 F.3d 605, 607 (7th Cir. 2007) (“[u]nrelated claims against different defendants belong in
different suits[.]”). The claims against the Schuyler County EMTs and the Emergency
Helicopter Service are DISMISSED for misjoinder.
Plaintiff’s complaint is lengthy and names dozens of defendants not amendable to suit
under § 1983. Furthermore, he names multiple Doe Defendants without pleading specific
complaints against them. As a result, it is not practical to sever the Complaint and it is,
therefore, DISMISSED with leave to replead within 30 days, consistent with this Order.

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IT IS THEREFORE ORDERED:
1.

Plaintiff's petition to proceed in forma pauperis [3] is DENIED, with leave to

reassert if he files an amended complaint. The Culbertson Hospital, St. John’s Hospital, Prairie
Cardiovascular Consultant, DHS, Schuyler County EMT, and Emergency Helicopter Service
Defendants are DISMISSED.
2.

Plaintiff will have 30 days in which to file an amended complaint against the

remaining defendants. The Complaint is to be captioned Amended Complaint and to contain all
of his claims against the remaining defendants without reference to a prior pleading. He is to
identify his particulars claims against the Doe Defendants to aid in their identification.
3.

Plaintiff’s motions for status [6] and [8] are MOOT. Plaintiff’s motion for

recruitment of pro bono counsel [5] is DENIED with leave to reassert.

ENTERED: 6/19/2017
________s/Joe Billy McDade_________
JOE BILLY McDADE
UNITED STATES DISTRICT JUDGE

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