Hutcherson v. Moore

Filing 5

Plaintiff's motion for leave to file in forma pauperis 3 is granted. The Court orders the trust fund officer at Plaintiff's current place of incarceration to deduct $58.86 from Plaintiff's account for payment to the Clerk of Cou rt as an initial partial filing fee. The Clerk shall send a copy of this order to the trust fund officer at Danville Correctional Center. However, Defendant Cook County is dismissed as a Defendant. The Clerk is directed to issue summons for Defendant Moore, and the United States Marshals Service is appointed to serve her. Plaintiff's motion for appointment of counsel 4 is denied. WRITTEN Opinion Signed by the Honorable Ronald A. Guzman on 10/6/2010. (For further details see written opinion).Mailed notice(smm)

Order Form (01/2005)

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

Ronald A. Guzman 10 C 6215

Sitting Judge if Other than Assigned Judge

CASE NUMBER CASE TITLE
DOCKET ENTRY TEXT:

DATE

10/06/10

Lonnie Hutcherson (#B-43963) v. County of Cook, et al.

Plaintiff's motion for leave to file in forma pauperis [#3] is granted. The Court orders the trust fund officer at Plaintiff's current place of incarceration to deduct $58.86 from Plaintiff's account for payment to the Clerk of Court as an initial partial filing fee. The Clerk shall send a copy of this order to the trust fund officer at Danville Correctional Center. However, Defendant Cook County is dismissed as a Defendant. The Clerk is directed to issue summons for Defendant Moore, and the United States Marshals Service is appointed to serve her. Plaintiff's motion for appointment of counsel [#4] is denied.

O [For further details see text below.]

Docketing to mail notices.

STATEMENT Plaintiff, Lonnie Hutcherson, presently in custody of Danville Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendant Emergency Medical Technician Moore violated his constitutional rights by failing to provide adequate medical care for a serious medical condition at the Cook County Jail. More specifically, Plaintiff alleges that he informed Defendant Moore that he was suffering from a fungal infection (jock itch), and that the medication she had given him was ineffective at treating it. She refused to change his course of treatment and the fungal infection ended up progressing into a serious bacterial infection. Cook County is also sued, but is not mentioned in the body of the complaint. 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 $58.86. 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 Floor, and shall clearly identify Plaintiff's name and this case number. This payment obligation will follow Plaintiff wherever he may be transferred. (CONTINUED)

AWL

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STATEMENT Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt initial review of prisoner complaints against governmental entities or employees. Here, accepting Plaintiff's factual allegations as true, the Court finds that the complaint states a colorable cause of action under the Civil Rights Act against Defendant Medical Technician Moore. Davis v. Carter, 452 F.3d 686, 696 (7th Cir. 2006). However, Plaintiff's complaint must be dismissed as to Defendant Cook County. Plaintiff names Cook County in the caption of the case, but makes no allegation against it in the body of his complaint. Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to " `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, (1957)). To satisfy the notice pleading requirements of FED. R. CIV. P. 8(a)(2), Plaintiff need only state his legal claim and provide "some indication . . . of time and place." Thompson v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004). It is a plaintiff's obligation to provide the grounds of his entitlement to relief which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp., 550 U.S. 544, 555 (citations omitted). Plaintiff has failed to plead sufficiently as to Defendant Cook County to give it adequate notice of any claim. Additionally, a municipality cannot be held liable for a constitutional violation in the absence of a custom, policy or practice that effectively caused or condoned the alleged constitutional violations. See, e.g., Garrison v. Burke, 165 F.3d 565, 571 (7th Cir. 1999); Phelan v. Cook County, 463 F.3d 773, 789 (7th Cir. 2006); Monell v. Dep't. of Soc. Serv. of City of New York, 436 U.S. 658, 694 (1978). In the case at bar, Plaintiff does not suggest that there was an unconstitutional municipal policy or custom. There is, therefore, no basis for liability on the part of Cook County. The Clerk shall issue summons for service of the complaint on Defendant Moore (hereinafter, "Defendant"). The Clerk shall also send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order. 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 Defendant can no longer be found at the work address provided by Plaintiff, the Cook County Department of Corrections 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 original plus a judge's copy of every document filed. In addition, Plaintiff must send an exact copy of any Court filing to Defendants [or to defense counsel, once an attorney has entered an appearance on their behalf]. Every document filed 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. Plaintiff has also filed two motions for appointment of counsel. Both are denied. Civil litigants do not have a constitutional or statutory right to counsel. See Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002). Nevertheless, a district court may, in its discretion, "request an attorney to represent any person unable to afford (CONTINUED)

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STATEMENT 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. 1997). In deciding whether to appoint counsel, the Court must consider: (1) whether, given the degree of difficulty of the case, a 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. Gil, 381 F.3d at 656, relying on Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). 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. As Plaintiff appears more than capable of presenting his case, the Court declines to appoint counsel for Plaintiff at this time. It should additionally be noted that the Court grants pro se litigants wide latitude in the handling of their lawsuits. Should the case proceed to a point that assistance of counsel is appropriate, the Court may revisit this request.

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