Winston v. Jakubowsk et al

Filing 12

MERIT REVIEW OPINION: Case Proceeds. Motion for Leave to Proceed in forma pauperis 3 is granted. Plaintiff's motion for status 7 , 9 are moot. Clerk to enter standard qualified protective order pursuant to HIPAA. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. Rule 16 Deadline set for 6/12/2018. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 04/13/2018. (SKN, ilcd)

E-FILED

Friday, 13 April, 2018 09:14:49 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ANDRE WINSTON,
Plaintiff,
v.
DR. JAKUBOWSK,
NURSE LISA LOGDON,
MS. BLEASING, and
UNKNOWN MEDICAL
PERSONNEL,
Defendants.

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18-CV-4041

MERIT REVIEW OPINION
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).
Additionally, a court must dismiss cases proceeding in forma
pauperis "at any time" if the action is frivolous, malicious, or fails to
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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).
Plaintiff alleges that his various medical conditions, including
lupus, bowel problems, arthritis, and light-headedness require him
to have a low bunk. Defendants have allegedly denied Plaintiff a
low bunk, causing Plaintiff pain and suffering. At times Plaintiff
defecates on himself because he cannot get down from the bunk in
time to reach the toilet.
Plaintiff’s allegations state a constitutional claim for deliberate
indifference to Plaintiff’s need for a low bunk permit. The case will
proceed for service pursuant to the standard procedures.
IT IS ORDERED:
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1.

Plaintiff's petition to proceed in forma pauperis is granted

(d/e 3). Pursuant to a review of the Complaint, the Court finds that
Plaintiff states a constitutional claim for deliberate indifference to
Plaintiff’s need for a low bunk permit. This case proceeds solely on
the claim 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.
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 sending

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver of service 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
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requesting the status of service. After counsel has appeared for
Defendants, the Court will enter a scheduling order setting
deadlines for discovery and dispositive motions.
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 day

the waiver of service 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.
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
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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 Plaintiff's place of confinement. Counsel for Defendants
shall arrange the time for the deposition.
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.

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.
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).
10. Plaintiff’s motions for status are moot. (d/e 7, 9.)

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11. The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
12. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
ENTERED: 4/13/18
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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