Rappe v. Harvey et al

Filing 5

WRITTEN Opinion: Plaintiff's motion for leave to proceed in forma pauperis 3 is granted. The court authorizes and orders the trust fund officer at plaintiff's place of incarceration to deduct $12.38 from plaintiff's account for payment to the Clerk of Court as an initial partial filing fee, and to continue making monthly deductions in accordance with this order. The Clerk is directed to: (1) send a copy of this order to the trust fund officer at the Federal Medical Center in Ayer, Massachusetts: (2) issue summons for service on defendant by the U.S. Marshal; and (3) send plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order. Plaintiff's motion for appointment of counsel 4 is denied. (For further detail see order) Mailed Signed by the Honorable Matthew F. Kennelly on 8/19/2010:(vmj, )

Rappe v. Harvey et al
Order Form (01/2005)

Doc. 5

United States District Court, Northern District of Illinois
Name of Assigned Judge or Magistrate Judge

MATTHEW F. KENNELLY 10 C 4636

Sitting Judge if Other than Assigned Judge

CASE NUMBER CASE TITLE
D O C K E T ENTRY TEXT:

DATE

August 19, 2010

Daniel Rappe (#22472-424) vs. Paul Harvey, M.D.

Plaintiff's motion for leave to proceed in forma pauperis [#3] is granted. The Court authorizes and orders the trust fund officer at Plaintiff's place of incarceration to deduct $12.38 from Plaintiff's account for payment to the Clerk of Court as an initial partial filing fee, and to continue making monthly deductions in accordance with this order. The Clerk is directed to: (1) send a copy of this order to the trust fund officer at the Federal Medical Center in Ayer, Massachusetts; (2) issue summons for service on Defendant by the U.S. Marshal; and (3) send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order. Plaintiff`s motion for appointment of counsel [#4] is denied, without prejudice. O
[For further details see text below.] D o c k e t in g to mail notices.

STATEMENT Plaintiff, a federal prisoner, has brought this pro se civil rights action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff claims that Defendant, a physician at the Metropolitan Correctional Center, violated Plaintiff's constitutional rights by acting with deliberate indifference to his serious medical needs. Plaintiff contends that the quality of care he received from Defendant for an ulcer and other gastric issues was so inadequate as to rise to the level of a constitutional violation. Plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is assessed an initial partial filing fee of $12.38. The trust fund officer at Plaintiff's place of incarceration is authorized and ordered to collect the partial filing fee from Plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, Plaintiff's trust fund officer is directed to collect monthly payments from Plaintiff's trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier's Desk, 20th (CONTINUED)
mjm

P a g e 1 of 3

Dockets.Justia.com

STATEMENT (continued) Floor, and shall clearly identify Plaintiff's name and this case number. This payment obligation will follow Plaintiff wherever he may be transferred. Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Here, accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendant. Correctional officials and health care providers may not act with deliberate indifference to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). The fact that a prisoner received some medical treatment does not necessarily defeat his claim; deliberate indifference to a serious medical need can be manifested by "blatantly inappropriate" treatment, Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (emphasis in original), or by "woefully inadequate action," as well as by no action at all. Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 1999). It should nevertheless be noted that neither medical malpractice nor a mere disagreement with a doctor's medical judgment amounts to deliberate indifference. Estelle, 429 U.S. at 106; Greeno, 414 F.3d at 653. While a more fully developed record may belie Plaintiff's allegations, Defendant must respond to the complaint. The Clerk shall issue summons forthwith. The United States Marshals Service is appointed to serve Defendant. Any service forms necessary for Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendant with process. The U.S. Marshal is directed to make all reasonable efforts to serve Defendant. If Dr. Harvey can no longer be found at the work address provided by Plaintiff, the federal Bureau of Prisons shall furnish the Marshal with Defendant's last-known address. The information shall be used only for purposes of effectuating service [or for proof of service, should a dispute arise] and any documentation of the address shall be retained only by the Marshal. Address information shall not be maintained in the court file, nor disclosed by the Marshal. The Marshal is authorized to mail a request for waiver of service to Defendant in the manner prescribed by Fed. R. Civ. P. 4(d)(2) before attempting personal service. Plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of the Prisoner Correspondent. Plaintiff must provide the Court with the original plus a complete judge's copy, including any exhibits, of every document filed. In addition, Plaintiff must send an exact copy of any court filing to Defendant [or to defense counsel, once an attorney has entered an appearance on behalf of Defendant]. Every document filed with the Court must include a certificate of service stating to whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded by the Court or returned to Plaintiff. Finally, Plaintiff's motion for appointment of counsel is denied. Civil litigants do not have a constitutional or statutory right to counsel. See Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, a district court may, in its discretion, "request an attorney to represent any person unable to afford counsel." Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004), citing 28 U.S.C. § 1915(e)(1); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. (CONTINUED)

P a g e 2 of 3

STATEMENT (continued) 1997). In deciding whether to appoint counsel, the Court must "first determine if the indigent has made reasonable efforts to retain counsel and was unsuccessful or that the indigent was effectively precluded from making such efforts." Gil, 381 F.3d at 656, quoting Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). If so, the Court must consider: (1) whether, given the degree of difficulty of the case, the plaintiff appears competent to try it himself; and (2) whether the assistance of counsel would provide a substantial benefit to the Court or the parties, potentially affecting the outcome of the case. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007); Gil, 381 F.3d at 656; see also Local Rule 83.36(c) (N.D. Ill.) (listing the factors to be considered in determining whether to appoint counsel). After considering the above factors, the Court concludes that appointment of counsel is not warranted in this case. Although Plaintiff has articulated colorable claims, he has alleged no physical or mental disability that might preclude him from adequately investigating the facts giving rise to his complaint. Neither the legal issues raised in the complaint nor the evidence that might support Plaintiff's claims are so complex or intricate that a trained attorney is necessary. Plaintiff appears more than capable of presenting his case. It should additionally be noted that the Court grants pro se litigants wide latitude in the handling of their lawsuits. Therefore, Plaintiff's motion for appointment of counsel is denied at this time. Should the case proceed to a point that assistance of counsel is appropriate, the Court may revisit this request.

Page 3 of 3