Chalmers v. Bautista et al

Filing 11

MERIT REVIEW OPINION (Rule 16 Deadline 9/19/2017) - Entered by Judge Harold A. Baker on 7/21/2017. See written Order. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountabil ity Act. The clerk is directed to terminate Defendants Lindorff, The Bantry Group Corporation, Ryan, Faetanini, Blackmen, Young, Haley, Stokes, Hendricks, Lamb, Mudd, Parish, Vollmer, Gans, Lemay, Dorethy, Williams, McNeely, Funk, Halloran, and Le wis. The clerk is directed to attempt service on the remaining defendants pursuant to the standard procedures. Plaintiff's motion for preliminary injunction 1 and motion for leave to supplement 10 are denied. Plaintiff's motion to re quest counsel 4 is denied with leave to renew. Plaintiff has no constitutional or statutory right to counsel in this case. In considering the Plaintiff's motion, the court asks: (1) has the indigent Plaintiff made a reasonable attempt to obta in 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, 654-55 (7th Cir. 2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). Plaintiff has not shown that he made a reasonable effort to obtain counsel on his own. A plaintiff usually does this by attaching copies of letters sent to attorneys seeking representation and copies of any responses recei ved. Because Plaintiff has not satisfied the first prong, the Court does not address the second. Plaintiff's motion to disqualify attorney general 5 is denied. Plaintiff's allegations contained in the motion are speculative at best.(LN, ilcd)

E-FILED

Friday, 21 July, 2017 02:48:26 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MARK CHALMERS,
Plaintiff,
v.
CATALINO BAUTISTA, et al.
Defendants.

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17-4150

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.
Plaintiff is incarcerated at Hill Correctional Center. Plaintiff filed a Motion for a
Preliminary Injunction/temporary restraining order (TRO) alleging that officials at Hill
refuse to treat his medical conditions for cost reasons and because his expected release
date is in August 2017. He alleges that the bridge of his nose is disfigured with
bleeding and pus, he suffers from a constant burning sensation in his eyes, abdominal
pain, rectal bleeding, and decreased urination. The exact treatment Plaintiff has
received is unclear from the allegations, but in sum, it appears Defendant Bautista, a
doctor, has refused to provide treatment or refer Plaintiff to an outside specialist.
Plaintiff has not filed a complaint in this matter, only the TRO motion. The Court
construes Plaintiff’s motion as a complaint. Plaintiff states a claim for deliberate
indifference to a serious medical need as the failure to refer Plaintiff to a specialist or
otherwise provide adequate treatment for his condition suggests Defendant Bautista

did not act with the requisite professional judgment. Sain v. Wood, 512 F.3d 886, 894-95
(7th Cir. 2008). Plaintiff’s allegations also plausibly suggest that a Wexford policy to
reduce costs caused the alleged constitutional deprivation. Therefore, these claims
should proceed against Defendants Bautista and Wexford.
The remaining defendants should be dismissed. Plaintiff appears to be receiving
some treatment and no plausible inference exists that prison officials have obstructed
his access to the medical staff or prescribed treatment in any way. Non-medical prison
officials are entitled to defer to judgment of medical professionals providing a
prisoner’s care, and nurses must defer to the orders of the treating physicians. Berry v.
Peterman, 604 F.3d 435, 443 (7th Cir. 2010). Finally, no plausible inference exists that the
remaining defendants were personally involved in Plaintiff’s treatment. Vance v. Peters,
97 F.3d 987, 991 (7th Cir. 1996).
To the extent that Plaintiff seeks injunctive relief, Rule 65 of the Federal Rules of
Civil Procedure provides that a court may issue a preliminary injunction only upon
notice to the opposing party. Fed. R. Civ. P. 65(a)(1). Defendants in this case have not
yet been served. For a temporary restraining order to issue without notice to the
opposing party, the party seeking injunctive relief must file an affidavit or verified
complaint alleging specific facts that show that immediate and irreparable harm will
result before an adverse party can be served, and also detailing the efforts made to
serve the adverse party. Fed. R. Civ. P. 65(b)(1). Plaintiff has not provided either.
Therefore, his requests for injunctive relief are denied.
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 claims for deliberate
indifference to a serious medical need against Defendants Bautista and Wexford
Health Sources, Inc. 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 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 Defendants Lindorff, The Bantry Group
Corporation, Ryan, Faetanini, Blackmen, Young, Haley, Stokes, Hendricks,
Lamb, Mudd, Parish, Vollmer, Gans, Lemay, Dorethy, Williams, McNeely, Funk,
Halloran, and Lewis.
12. The clerk is directed to attempt service on the remaining defendants pursuant to
the standard procedures.
13. Plaintiff’s motion for preliminary injunction (#1) and motion for leave to
supplement (#10) are denied.
14. Plaintiff’s motion to request counsel (#4) is denied with leave to renew. Plaintiff
has no constitutional or statutory right to counsel in this case. In considering the
Plaintiff’s motion, the court asks: (1) has the indigent Plaintiff made a 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, 654-55 (7th Cir. 2007), citing Farmer v.
Haas, 990 F.2d 319, 322 (7th Cir.1993). Plaintiff has not shown that he made a
reasonable effort to obtain counsel on his own. A plaintiff usually does this by
attaching copies of letters sent to attorneys seeking representation and copies of
any responses received. Because Plaintiff has not satisfied the first prong, the
Court does not address the second.
15. Plaintiff’s motion to disqualify attorney general (#5) is denied. Plaintiff’s
allegations contained in the motion are speculative at best.
Entered this 21st day of July, 2017.
/s/ Harold A. Baker
_________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE