Perez v. Fenoglio et al

Filing 25

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 8/7/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MIGUEL PEREZ,
#B10797,

)
)
)
Plaintiff,
)
)
vs.
)
)
JAMES FENOGLIO, DR. PHIL MARTIN, )
WEXFORD HEALTH SOURCES, INC., )
LEE RYKER, PAMELA MORAN,
)
C. VAUGHN, GLADYSE C. TAYLOR,
)
BRIAN FAIRCHILD, and C. BROOKS,
)
)
Defendants.
)

Case No. 11-cv-00819-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court on remand from the United States Court of Appeals
for the Seventh Circuit. See Perez v. Fenoglio, -- F.3d --, No. 12-3084, 2015 WL 4092294 (7th
Cir. July 7, 2015). The Seventh Circuit reversed the decision of United States District Court
Judge G. Patrick Murphy to dismiss a complaint (Doc. 1) that was filed by Plaintiff Miguel Perez
pursuant to 42 U.S.C. § 1983. In the complaint, Perez, an inmate at Lawrence Correctional
Center (“Lawrence”), claimed that numerous prison officials provided inadequate medical care
for his severe hand injury, in violation of the Eighth Amendment. He also claimed that two of
these prison officials delayed his medical treatment as retaliation against Perez for filing
grievances in which he complained about the prison’s medical staff, in violation of the
First Amendment.

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After screening the complaint under 28 U.S.C. § 1915A, the district court dismissed the
Eighth Amendment claim against all of the defendants, finding that it failed to state any claim for
relief against them. The district court did not address the First Amendment retaliation claim.
The Seventh Circuit reversed this decision on appeal, indicating that the
Eighth Amendment deliberate indifference to medical needs claim against all of the defendants is
subject to further review. In addition, the Seventh Circuit held that the complaint articulates a
viable retaliation claim against two of these defendants, and this First Amendment claim is also
subject to further review. The case was remanded to this Court for further proceedings.
Discussion
Consistent with the Seventh Circuit’s opinion, this Court now finds that the following
claims pass muster under 28 U.S.C. § 1915A and shall receive further review.
Count 1:

Doctor Fenoglio exhibited deliberate indifference toward
Perez’s severe hand injury, in violation of the
Eighth Amendment, when the doctor failed to provide Perez
with adequate, timely care and ignored treatment
recommendations of specialists at the Carle Clinic;

Count 2:

Nurse Brooks exhibited deliberate indifference toward Perez’s
severe hand injury, in violation of the Eighth Amendment,
when the nurse failed to provide Perez with adequate medical
treatment for his hand injury or ensure that others did;

Count 3:

Wexford Health Sources, Inc. exhibited deliberate indifference
toward Perez’s severe hand injury, in violation of the
Eighth Amendment, by maintaining a policy or practice that
prevented nurses from stitching wounds or prescribing
medication unless a doctor was present while also limiting the
times that doctors were on duty;

Count 4:

Administrator Martin exhibited deliberate indifference toward
Perez’s severe hand injury, in violation of the
Eighth Amendment, by refusing to grant Perez’s referral
request without explanation for four days;

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Count 5:

The Grievance Defendants (i.e., Counselor Vaughn,
Officer Moran, Warden Ryker, Director Taylor, and Officer
Fairchild) displayed deliberate indifference toward Perez’s
severe hand injury, in violation of the Eighth Amendment,
when they obtained actual knowledge of Perez’s condition and
his inadequate medical care and still failed to intervene on
Perez’s behalf to rectify the situation; and

Count 6:

Doctor Fenoglio and Administrator Martin retaliated against
Perez, in violation of the First Amendment, when they denied
him adequate medical care for his hand injury because he filed
a grievance against prison officials for withholding his
prescription medication for depression.

The parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of these counts does not
constitute an opinion as to their merit.
Recruitment of Counsel
Perez also appealed the district court’s decision denying his request for pro bono counsel.
On appeal, the Seventh Circuit held that the district court acted within its discretion, and not
unreasonably, when denying the request. The Seventh Circuit added, however, that counsel may
be appropriate once the case moves beyond the pleadings stage.
Perez is reminded that he may file a motion for recruitment of counsel at any time during
the pending litigation that he deems it necessary to do so. To this end, the Clerk shall be directed
to provide him with a blank motion for recruitment of counsel.
Disposition
The CLERK is DIRECTED to send Perez a blank motion for recruitment of counsel.
IT IS HEREBY ORDERED that Perez’s Eighth Amendment claims (COUNTS 1, 2, 3,
4, and 5) and his First Amendment claim (COUNT 6) shall receive further review consistent
with the Seventh Circuit’s opinion in Perez v. Fenoglio, -- F.3d --, No. 12-3084, 2015

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WL 4092294 (7th Cir. July 7, 2015).
As to COUNTS 1, 2, 3, 4, 5, and 6, the Clerk of Court shall prepare for Defendants
WEXFORD HEALTH SOURCES, INC., JAMES FENOGLIO, PHIL MARTIN, LEE
RYKER, PAMELA MORAN, C. VAUGHN, GLADYSE C. TAYLOR, BRIAN
FAIRCHILD, and C. BROOKS: (1) Form 5 (Notice of a Lawsuit and Request to Waive
Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is
DIRECTED to mail these forms, a copy of the complaint, the Seventh Circuit’s opinion, and
this Memorandum and Order to each Defendant’s place of employment as identified by Plaintiff.
If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk
within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect
formal service on that Defendant, and the Court will require that Defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to

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include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding the
fact that his application to proceed in forma pauperis has been granted. See 28 U.S.C.
§ 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 7, 2015
__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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