Smith v. Wexford Health Services et al

Filing 45

ORDER: The motion of Defendants Williams and Rabideau to dismiss the amended complaint 31 is denied. Defendants Williams and Rabideau shall answer the amended complaint by 1/25/2016. Plaintiffs "motion to resubmit attorney representation&qu ot; 37 is denied without prejudice. In light of the Magistrate Judge's supervision of discovery and setting of a 2/16/2016 status hearing 41 , the 1/5/2016 status hearing 34 is stricken and re-set for 3/29/2016 at 9:30 a.m. Defense counsel is directed to make arrangements for Plaintiff's telephonic appearance at that status hearing. Signed by the Honorable Gary Feinerman on 1/4/2016. Mailed notice(lcw, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Kenneth E. Smith (K-54173),
Plaintiff,
v.
Karen Rabideau, et al.,
Defendants.

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Case No. 15 C 3730
Judge Gary Feinerman

ORDER
The motion of Defendants Williams and Rabideau to dismiss the amended complaint [31]
is denied. Defendants Williams and Rabideau shall answer the amended complaint by 1/25/2016.
Plaintiff’s “motion to resubmit attorney representation” [37] is denied without prejudice. In light
of the Magistrate Judge’s supervision of discovery and setting of a 2/16/2016 status hearing [41],
the 1/5/2016 status hearing [34] is stricken and re-set for 3/29/2016 at 9:30 a.m. Defense counsel
is directed to make arrangements for Plaintiff’s telephonic appearance at that status hearing.
STATEMENT
Plaintiff Kenneth E. Smith, a prisoner at Stateville Correctional Center, brought this pro se
civil rights action pursuant to 42 U.S.C. § 1983, alleging that Defendants Tarry Williams, Karen
Rabideau, and Dr. Obaisi were deliberately indifferent to his serious medical needs related to his
torn ACL and crepitis. Plaintiff also raises claims against Wexford Health Sources, Inc., which
has not yet appeared. Currently before the Court are a motion by Williams and Rabideau to
dismiss the amended complaint and Plaintiff’s “motion to resubmit for attorney representation.”
Defendants Williams and Rabideau contend that Plaintiff has insufficiently alleged their
personal involvement in the alleged constitutional violation. Doc. 31 at 2. They first argue that
Williams’ unfavorable responses to Plaintiff’s grievances are insufficient to subject Williams to
liability. Although it is true that “[n]on-medical defendants . . . can rely on the expertise of
medical personnel” as to the proper treatment for inmates, they “may not simply ignore an
inmate’s plight.” Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011). Thus, where an inmate
alleges that an official knows of an inmate’s unmet need for medical attention or that he is not
receiving ordered medical attention, the inmate may, in some instances, state a deliberate
indifference claim. Here, as Defendants acknowledge, Plaintiff indicates that he informed the
warden (whom he believes to have been Williams) of his “medical needs at least twice face to
face” and also “alerted” Williams “of [Dr.] Obaisi’s refusal to see Plaintiff” through emergency
grievances. Doc. 29 ¶¶ 36, 38-41. Plaintiff’s allegations, although sparse, are sufficient at the
pleading stage to state a deliberate indifference claim against Williams.

As for Defendant Rabideau, Defendants construe the amended complaint to allege that
Plaintiff asked Rabideau to assign him to “a lower level floor”; they characterize such a request as
a “specific decision[] about where inmates will be housed” that should be “left to the discretion of
prison administrators.” Doc. 31 at 4 (citing McKune v. Lile, 536 U.S. 24, 39 (2002). The Court,
however, understands Plaintiff in his amended complaint to allege not that he sought a change in
cell location, but that he sought a bottom, rather than top, bunk. Doc. 29 ¶ 12 (alleging that
“Plaintiff has been forced to clamb [sic] into the top bunk”). Moreover, according to Plaintiff, he
informed Rabideau that a medical doctor had prescribed the lower bunk, but she did not act on the
doctor’s orders. Plaintiff’s allegations, which must be assumed true at this stage, are sufficient to
assert a deliberate indifference claim against Rabideau. See Hudson v. Dart, No. 10 C 8253, 2011
WL 494375, at *2 (N.D. Ill. Feb. 7, 2011) (holding that plaintiff’s allegation that he informed
various officials of his need for bottom bunk permit and that none acted to ensure he received one
may establish deliberate indifference claim against those officials). Accordingly, the motion to
dismiss is denied.
Plaintiff’s “motion to resubmit for attorney representation,” in which he seems to ask the
Court to reconsider the denial of his earlier request for counsel, is denied without prejudice.
Although “[t]here is no right to court-appointed counsel in federal civil litigation,” Olson v.
Morgan, 750 F.3d 708, 711 (7th Cir. 2014), the Court has discretion to request that an attorney
represent an indigent litigant on a volunteer basis under 28 U.S.C. § 1915(e)(1). In making the
decision whether to recruit counsel, the Court must engage in a two-step analysis: (1) has the
plaintiff made a reasonable attempt to obtain counsel on his own behalf or been effectively
precluded from doing so; and, if so, (2) given the factual and legal complexity of the case, does
this particular plaintiff appear competent to litigate the matter himself. Pruitt v. Mote, 503 F.3d
647, 654-55 (7th Cir. 2007) (en banc). This analysis does not focus solely on the plaintiff’s
ability to try the case, but on his ability to gather evidence and prepare and respond to motions.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013). Factors to be considered include: (1) the
stage of litigation, Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010) (holding that it is
difficult to make an accurate determination regarding a plaintiff’s ability to litigate the matter
when case is still in “its infancy”); (2) plaintiff’s submissions and pleadings, Olson, 750 F.3d at
712 (well-written pleadings and appearance that plaintiff can follow instructions indicate that
counsel is not needed); (3) medical and mental health issues, Olson, 750 F.3d at 712; (4) transfer
to a different facility, Junior v. Anderson, 724 F.3d 812, 815 (7th Cir. 2013) (transfer to a
different facility may impede plaintiff’s ability to obtain evidence including
affidavits/declarations from others to support his/her claim); (5) plaintiff’s capabilities, including
intelligence (IQ), literacy, degree of education, communication skills, and litigation experience,
Pruitt, 503 F.3d at 655; Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014) (recruitment
of counsel required for a blind inmate with a tenth-grade education); Henderson v. Ghosh, 755
F.3d 559, 565 (7th Cir. 2014) (enlistment of counsel was necessary for a functionally illiterate
inmate); and (6) complexity of the case, Dewitt, 760 F.3d at 658; Henderson, 755 F.3d at 566;
Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010); Pruitt, 503 F.3d at 655-56.

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Plaintiff’s motion provides little beyond what was included in Plaintiff’s prior motion
(Doc. 27) and addressed by the Court at the October 13, 2015 hearing, where that motion was
denied. Doc. 34. Although Plaintiff alleges a medical condition that may be serious (a torn
ACL), the case has not yet passed the pleading stage. In fact, one Defendant has yet to appear.
Given the early stage of the case, the Court has little basis to assess the case’s complexity or
Plaintiff’s ability to litigate the case himself. The Court notes that Plaintiff’s submissions have
been consistently coherent and superior to those of many pro se litigants. Plaintiff asserts that
this is because he has had help from other inmates (Doc. 37), but even Plaintiff’s recent motion
is clear, organized, and concise. Plaintiff has not been transferred from the facility where the
alleged events occurred and has not asserted any obstacles to obtaining key documents that he
might use to support his claims. Although like most inmates Plaintiff has little litigation
experience or legal knowledge, he has a G.E.D. and he has successfully amended his complaint
to assert additional claims. Plaintiff has not identified any impairment that might prevent him
from undertaking tasks such as research and writing that might be required as litigation
progresses at this early stage.
For these reasons and those stated on the record at the last status hearing, Plaintiff’s
request for attorney representation is denied without prejudice to his renewing the motion later in
the case.

January 4, 2016

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United States District Judge

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