Mendez v. Wahl et al

Filing 6

ORDER: Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 5) is granted. The Court authorizes and orders the trust fund officer at Plaintiff's place of incarceration to deduct $12.42 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. On the Court's own motion, Wexford Health Sources, Inc., is dismissed as a Defendant on preliminary review p ursuant to 28 U.S.C. § 1915A. The Clerk is directed to: (1) send a copy of this order to the trust fund officer at the Dixon Correctional Center; (2) issue summonses for service on Defendants Dr. Wahl and Bill Law by the U.S. Marshal; (3) mail P laintiff two blank USM-285 (Marshals service) forms, 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 Defendants. The Court advises Pl aintiff that a completed USM-285 (Marshals service) form is required for each named Defendant. The Marshal will not attempt service on Defendants unless and until the required forms are received. Therefore, Plaintiff must complete service forms for e ach Defendant and return those forms to the Clerk of Court in care of the Prisoner Correspondent within thirty days of the date of this order. Plaintiff's motion for attorney representation (Dkt. No. 4) is denied without prejudice. [See STATEMENT] Signed by the Honorable Frederick J. Kapala on 12/30/2014. (jp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE L. MENDEZ (M-37375)
Plaintiff,

v.
DR. WAHL, et. al,
Defendants.

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No. 14 C 50366

Judge Frederick J. Kapala

ORDER
Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 5) is granted. The
Court authorizes and orders the trust fund officer at Plaintiff’s place of incarceration to deduct
$12.42 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. On the Court’s own
motion, Wexford Health Sources, Inc., is dismissed as a Defendant on preliminary review
pursuant to 28 U.S.C. § 1915A. The Clerk is directed to: (1) send a copy of this order to the
trust fund officer at the Dixon Correctional Center; (2) issue summonses for service on
Defendants Dr. Wahl and Bill Law by the U.S. Marshal; (3) mail Plaintiff two blank USM-285
(Marshals service) forms, 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 Defendants. The Court advises Plaintiff that a completed USM-285 (Marshals service)
form is required for each named Defendant. The Marshal will not attempt service on Defendants
unless and until the required forms are received. Therefore, Plaintiff must complete service
forms for each Defendant and return those forms to the Clerk of Court in care of the Prisoner
Correspondent within thirty days of the date of this order. Plaintiff’s motion for attorney
representation (Dkt. No. 4) is denied without prejudice.
STATEMENT
Plaintiff, an Illinois state prisoner, has brought this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff claims that Defendants, officials at the Dixon Correctional Center
(hereinafter, “Dixon”), violated Plaintiff’s constitutional rights by failing to protect him from an
attack by a cellmate and through deliberate indifference to his serious medical needs after the
attack.
More specifically, Plaintiff alleges that on August 17, 2013, he reported to his counselor,
Bill Law, that he was having serious problems with his cellmate, who was stealing his
belongings. Plaintiff alleges that he told Law that his cellmate had threatened to “kick his ass,”
but the counselor told him he should “man up,” and there was nothing he could do unless there

was a fight. Plaintiff alleges that the next day, August 18, 2013, his cellmate attacked him,
causing a serious injury to his right eye.
Plaintiff goes on to allege that he suffered painful complications as a result of his eye
injury, resulting in multiple surgeries. He contends that his care was delayed, and that Dr. Wahl,
the medical director at Dixon, failed to respond to his requests for treatment on several
occasions. On September 3, 2014, an eye specialist prescribed him a pair of sunglasses, but that
prescription has yet to be filled, and Plaintiff has made several failed inquiries to Dr. Wahl
regarding the prescription.
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 $12.42. The trust fund
officer at Dixon 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 his 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.
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 the complaint
articulates a colorable federal cause of action against Defendant Law for failure to protect him
from his cellmate’s attack. See Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006) (holding
that prison officials have a duty under the Eighth Amendment to protect prisoners from violence
at the hands of other inmates) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)).
Additionally, Plaintiff states a claim against Defendant Dr. Wahl for deliberate
indifference to his serious medical needs. See Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.
2000). However, Wexford Health Sources, Inc. is not a proper Defendant to this claim. There is
no respondeat superior or vicarious liability under Section 1983, so Wexford cannot be sued
solely on the basis that it employs Dr. Wahl. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 822 (7th Cir. 2009). Plaintiff does not allege that his injuries are the result of any policy or
practice by Wexford. Id. Nor does he contend that there is any basis to hold Wexford liable as a
result of a series of bad acts on the part of its doctors, indicating that Wexford encouraged or
condoned deliberate indifference to prisoners’ serious medical needs. See id. (citing Woodward
v. Corr. Med. Servs., 368 F.3d 917, 927 (7th Cir. 2004)). Therefore, Wexford Health Sources,
Inc. is dismissed as a Defendant in this action.
Likewise, Plaintiff’s claim that his right to due process was violated by prison officials’
alleged failure to respond to his grievances is dismissed. The Seventh Circuit has repeatedly held
that there is no Fourteenth Amendment substantive due-process right to an inmate grievance
procedure. Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir. 2008); see Antonelli v. Sheahan,
81 F.3d 1422, 1430 (7th Cir. 1996) (“With respect to the Due Process Clause, any right to a
grievance procedure is a procedural right, not a substantive one. Accordingly, a state’s inmate
grievance procedures do not give rise to a liberty interest protected by the Due Process Clause.”).
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Finally, Plaintiff asserts a state law claim of intentional infliction of emotional distress
against Defendants. Under Illinois law, a plaintiff claiming intentional infliction of emotional
distress must demonstrate that the defendant intentionally or recklessly engaged in “extreme and
outrageous conduct” that resulted in severe emotional distress. Sanders v. Childers, No. 14-cv01296-MJR, 2014 U.S. Dist. LEXIS 173367, *12 –*13 (S.D. Ill. Dec. 15, 2014) (citing
Somberger v. City of Knoxville, Ill., 434 F.3d 1006, 1030 (7th Cir. 2006)). The tort has three
elements: (1) the conduct involved must be truly extreme and outrageous; (2) the actor must
either intend that his conduct inflict severe emotional distress, or know that there is at least a high
probability that his conduct will cause severe emotional distress; and (3) the conduct must in fact
cause severe emotional distress. Id. at *13 (citing McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill.
1988)). Under Illinois law, the tort applies only to acts that are truly outrageous, and which “go
beyond all bounds of decency and [are] considered intolerable in a civilized community.”
Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001).
Because this Court has original jurisdiction over Plaintiff’s Section 1983 claims, it has
supplemental jurisdiction over this related state law claim, which derives from a common
nucleus of operative fact. See 28 U.S.C. § 1367(a); Wisconsin v. Ho-Chunk Nation, 512 F.3d
921, 936 (7th Cir. 2008). However, the actions attributed to Defendants Law and Dr. Dahl do
not rise to the level of outrageousness that would support a claim for intentional infliction of
emotional distress. Therefore, that claim is dismissed as to both Defendants for failure to state a
claim upon which relief may be granted.
The Court directs the Clerk to issue summonses for service of the complaint on
Defendants Dr. Wahl and Bill Law. The United States Marshals Service is appointed to serve
Defendants. The Court advises Plaintiff that a completed USM-285 (Marshals service) form is
required for each named Defendant. The Marshal will not attempt service on Defendants unless
and until the required forms are received. Therefore, Plaintiff must complete service forms for
each Defendant and return those forms to the Clerk of Court in care of the Prisoner
Correspondent within thirty days of the date of this order.
The U.S. Marshal is directed to make all reasonable efforts to serve Defendants. With
respect to former correctional employees who no longer can be found at the work address
provided by Plaintiff, the Illinois Department of Corrections shall furnish the Marshal with the
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 send a request for waiver of
service to the Defendants 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 send an exact copy of any court filing
to the Defendants [or to defense counsel, once an attorney has entered an appearance on behalf of
Defendants]. 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.
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Finally, Plaintiff’s motion for attorney representation is denied. There is no constitutional
or statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th
Cir. 2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the
court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent litigant. Ray
v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
When a pro se litigant submits a request for assistance of counsel, the court must first
consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his
own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647,
654 (7th Cir. 2007) (en banc)). If so, the court must examine “whether the difficulty of the case-factually and legally--exceeds the particular plaintiff’s capacity as a layperson to coherently
present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question is whether
the plaintiff appears competent to litigate his own claims, given their degree of difficulty, and
this includes the tasks that normally attend litigation: evidence gathering, preparing and
responding to motions and other court filings, and trial.” Pruitt, 503 F.3d at 655. The court also
considers such factors as the plaintiff’s “literacy, communication skills, education level, and
litigation experience.” Id.
After considering the above factors, the Court concludes that the solicitation of counsel is
not warranted in this case at this time. Plaintiff has apparently made some unsuccessful efforts to
secure counsel on his own, but he does not explain whether the law firms he has contacted have
responded to his inquiries. Further, Plaintiff has alleged no physical or mental disability that
might preclude him from adequately investigating the facts giving rise to this lawsuit. While
Plaintiff states that his ability to read and write in English is limited because English is not his
first language, Plaintiff’s complaint is cogent and articulate. 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 attorney representation is denied at this time. Should the case proceed to a
point that assistance of counsel is appropriate, the Court may revisit this request.

Date: December 30, 2014

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