Murray v. Livingston et al

Filing 7

MERIT REVIEW AND CASE MANAGEMENT ORDER entered by Chief Judge James E. Shadid on 5/22/2017. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Deny Plaintiff's motion for appointment of counsel with leave to renew, 5 ; 2) Deny Plaintiff� 39;s motion for a status update as moot, 6 ; 3) Attempt service on Defendants pursuant to the standard procedures; 4) 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 5) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. See full written Order. (VH, ilcd)

E-FILED

Monday, 22 May, 2017 09:49:52 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
KENWAUN MURRAY,

OFFICER LIVINGSTON, et al.,
Defendants

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Case No. 17-4078

MERIT REVIEW AND CASE MANAGEMENT ORDER
This cause is before the Court for merit review of the Plaintiff’s complaint. 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.
The Plaintiff, a pro se prisoner, says his constitutional rights were violated at the Henry
Hill Correctional Center by Officer Livingston, Officer Stevenson, Lieutenant Gibbs and Nurse
Jane Doe. Plaintiff says he broke his pinky finger on August 22, 2015. Plaintiff showed his
“disfigured” finger to Defendant Livingston, and told the officer he was in pain. (Comp., p. 9).
The officer told Plaintiff he would have to wait until the nurse made rounds. At some later point,
Nurse Jane Doe came through the unit with Defendant Stevenson. Plaintiff again showed his
finger to the Defendants and told them he was in “severe pain.” (Comp., p. 9). The Defendants
told Plaintiff there was nothing they could do for him because Officer Gibbs said it was too late
to take an inmate to the Health Care Unit.
Plaintiff says he spent the night in “excruciating pain.” (Comp., p. 9). On August 23,
2015, a nurse on the medication line allowed Plaintiff to go the Health Care Unit where a
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medical staff member wrapped Plaintiff’s finger and provided pain medication. Plaintiff did not
see a doctor until August 25, 2015. An x-ray was taken which revealed a fracture of his pinky
finger. Plaintiff says he still experiences some pain and stiffness in his finger.
To establish an Eighth Amendment violation, Plaintiff must demonstrate he suffered from
a serious medical condition and the Defendants were deliberately indifferent to that condition.
See Farmer v Brennan, 511 U.S. 825 (1994). The Seventh Circuit has acknowledged a “serious
medical need” is far from “self-defining.” Gutierrez v Peters, 11 F3d 1364, 1370 (7th Cir. 1997).
However, the Court noted it includes not only conditions that are life-threatening, but also those
in which denial or delay in medical care results in needless pain and suffering. Id. Consequently,
Plaintiff has adequately alleged Defendants Livingston, Stevenson, Gibbs and Nurse Jane Doe
were deliberately indifferent to Plaintiff’s serious medical condition on August 22, 2015, when
they delayed medical care for his broken finger. See Edwards v. Snyder, 478 F.3d 827, 830–31
(7th Cir.2007) (a plaintiff who painfully dislocated his finger and was needlessly denied
treatment for two days stated a deliberate-indifference claim, reversing the district court's
dismissal); Grieveson v. Anderson, 538 F.3d 763, 778-780 (7th Cir.2008)(guards could be liable
for day-and-a-half delay of treatment for painful broken nose). Since Plaintiff’s finger was
wrapped, and he was provided pain relievers the next day, Plaintiff has not stated a claim
concerning his care after August 23, 2015.
Plaintiff has also filed a motion for appointment of counsel. [5] Plaintiff has no
constitutional right to the appointment of counsel and the Court cannot require an attorney to
accept pro bono appointment in a civil case. The most the Court can do is ask for volunteer
counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). In considering
Plaintiff’s motion, the Court must ask two questions: “(1) has the indigent plaintiff made a

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reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2)
given the difficulty of the case, does the plaintiff appear competent to litigate it himself?” Pruitt
v. Mote, 503 F.3d 647, 654 (7th Cir. 2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.
1993). Plaintiff has not demonstrated any effort to find counsel on his own such as a list of
attorneys contacted and copies of any letters sent or received. Therefore, his motion is denied
with leave to renew. [5]
IT IS THEREFORE ORDERED that:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the Court finds
the Plaintiff alleges Officer Livingston, Officer Stevenson, Lieutenant Gibbs and Nurse
Jane Doe violated his Eighth Amendment rights when they delayed medical care for a
painful broken finger on August 22, 2015. 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 Defendants have not
filed Answers or appeared through counsel within 90 days of the entry of this order,

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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 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.

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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) Deny Plaintiff’s motion for appointment of counsel with leave to renew, [5]; 2)
Deny Plaintiff’s motion for a status update as moot, [6]; 3) Attempt service on
Defendants pursuant to the standard procedures; 4) 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 5) enter the Court's standard qualified
protective order pursuant to the Health Insurance Portability and Accountability
Act.
ENTERED this 22nd day of May, 2017.

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

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