Westmoreland v. Parish et al
MERIT REVIEW OPINION: Case to proceed. Plaintiff's malpractice claim is dismissed without prejudice. The Clerk is directed to terminate Defendant "Health Care Administrator." The Clerk is directed to attempt service on Defendants pur suant to the standard procedures. Counsel for Defendants is hereby granted leave to depose Plaintiff at his place of confinement. Plaintiff's motion for the Court to appoint counsel is denied 6 . The Clerk is directed to enter the standard ord er granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done. The Clerk is directed to enter the standard qualified protective order pursuant to HIPAA. (Rule 16 Deadline 3/13/2018.) SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 01/12/2018. (SKN, ilcd)
Friday, 12 January, 2018 08:59:18 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
NURSE LAYOLA PARISH,
DR. BAUTISTA, WEXFORD
HEALTH SOURCES, INC., AND
HEALTH CARE UNIT
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the Danville
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally
construing them in Plaintiff's favor and taking Plaintiff’s pro se
A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
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status into account. 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).
Plaintiff alleges injurious medical care during his incarceration
in the Hill Correctional Center. Plaintiff had back pain caused by
pre-existing problems such as “degenerative disc disease, scoliosis,
[chronic wedge compression], and compressed discs.” (Compl. p. 5.)
On June 22, 2017, Dr. Bautista prescribed physical therapy,
allegedly knowing that Plaintiff would need to be scheduled to see
an outside physical therapist to learn the exercises properly. On
June 26, 2017, Plaintiff arrived at the health care unit for his
physical therapy. Defendant Nurse Parrish asked Plaintiff if he had
been sent out to receive instructions from the physical therapist.
Plaintiff replied no and further stated that he had not been
instructed on how to perform the physical therapy. Instead of
sending Plaintiff to the physical therapist, Dr. Bautista wrote a list
of exercises for the Plaintiff. Nurse Parrish instructed Plaintiff on
how to perform the exercises using an exercise band, but Plaintiff
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felt worse. During the second physical therapy appointment,
Plaintiff “felt a severe pain and shock run through my body, back,
and legs, causing me to hit the floor, shaking uncontrollably . . . .”
(Compl. p. 7.) Dr. Bautista came in and allegedly admitted that
Plaintiff should never have been using the exercise band. Plaintiff
allegedly still suffers lingering effects from the incident.
Plaintiff states an arguable Eighth Amendment claim for
deliberate indifference to Plaintiff’s serious medical needs against
Defendants Dr. Bautista and Nurse Parrish. Negligence or a
mistake is not deliberate indifference, but at some point alleged
incompetence can rise to such a substantial departure from
accepted practice that deliberate indifference can be inferred.
Wexford Health Sources, Inc., cannot be liable solely as an
employer. Wexford is liable only if an unconstitutional policy or
practice caused the deliberate indifference by Dr. Bautista and
Nurse Parrish. However, Wexford will stay in the case until the
record is developed as to why Dr. Bautista and Nurse Parrish did
not send Plaintiff to a physical therapist.
Plaintiff also sues an unnamed health care administrator, but
he does not say how this individual was personally involved.
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Additionally, Plaintiff must identify the name of this person before
he or she can be served. At this point, the unnamed health care
administrator will be dismissed, without prejudice to filing an
amended complaint, which should include an explanation of how
the health care administrator was personally involved and that
person’s name, if known. If Plaintiff files an amended complaint,
the proposed amended complaint must include all claims against all
Plaintiff also pursues a state law medical malpractice claim,
but to do so he must attach the affidavit and report required by 735
IT IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth
Amendment claim against Defendants Bautista, Parrish, and
Wexford Health Sources, Inc.
This case proceeds solely on the
claims identified in this paragraph. 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.
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Plaintiff’s malpractice claim is dismissed without
prejudice to refiling with the affidavit and report required by 735
Defendant “Health Care Administrator” is dismissed,
without prejudice, for failure to state a claim.
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.
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, 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.
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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.
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 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.
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
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filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that 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. 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 Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
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
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If a Defendants 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.
Marshal's 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).
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.
Plaintiff’s motion for the Court to appoint counsel is
denied (6), with leave to renew after Plaintiff demonstrates that he
has made reasonable efforts to find counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This typically requires
writing to several lawyers and attaching the responses. If Plaintiff
renews his motion, he should set forth how far he has gone in
school, any jobs he has held inside and outside of prison, any
classes he has taken in prison, and any prior litigation experience
The clerk is directed to terminate Defendant “Health
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The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: January 12, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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