Marsiliano v. David et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. The following defendants are DISMISSED from this action with prejudice: HCU Administrator Jane Doe, Grievance Officer John DoeThe Clerk of Court shall prepare for Defendants DR. DAVID: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 9/6/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY MARSILIANO,
Plaintiff,
v.

Case No. 11-cv-1036-JPG

DR. DAVID, HCU ADMINISTRATOR JANE
DOE, GRIEVANCE OFFICER JOHN DOE
and DR. JOHN DOE, ,
Defendants.

MEMORANDUM AND ORDER

Plaintiff, formerly currently incarcerated at East Moline Correctional Center and
Shawnee Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff claims that Dr. John Doe at East Moline and Dr. David at Shawnee were
deliberately indifferent to his gall bladder problems. Specifically, Plaintiff claims he suffered
from indigestion, pain and vomiting, and each doctor failed to recognize his problem as a gall
bladder and instead treated it with ineffective medication. With respect to Dr. David, Plaintiff
alleges he continued ineffective treatment for sixteen months without any improvement in
Plaintiff’s condition. Plaintiff faults HCU Administrator Jane Doe at Shawnee and Grievance
Officer John Doe at Shawnee for failing to investigate Dr. David’s provision of ineffective
treatment.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of
the complaint.

Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has

articulated a colorable federal cause of action:

Count 1:

A claim against Defendants Dr. David, HCU Administrator Jane Doe and
Grievance Office John Doe for deliberate indifference to medical needs in
violation of the Eighth Amendment while Plaintiff was at Shawnee Correctional
Center and

Count 2:

A claim against Defendant Dr. John Doe for deliberate indifference to medical
needs in violation of the Eighth Amendment while Plaintiff was at East Moline
Correctional Center.

Plaintiff also makes passing reference to his Fourteenth Amendment due process rights
but fails to articulate a claim for violation of those rights.
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that
unrelated claims against different defendants belong in separate lawsuits, “not only to prevent the
sort of morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners
pay the required filing fees” under the Prison Litigation Reform Act. George, 507 F.3d at 607,
citing 28 U.S.C. § 1915(b), (g). Plaintiff’s complaint contains two unrelated claims against
different defendants: deliberate indifference to medical needs at Shawnee by Dr. David, HCU
Administrator Jane Doe and Grievance Office John Doe (Count 1) and deliberate indifference to
medical needs at East Moline by Dr. John Doe (Count 2).
Consistent with George and Federal Rule of Civil Procedure 21, the Court SEVERS
Count 2 of Plaintiff’s complaint and DIRECTS the Clerk to open a new case with a newlyassigned case number for that case. The Court further directs the Clerk to add to the docket of
the newly-opened case a copy of Plaintiff’s complaint, the IFP application from this case and a
copy of this order. Furthermore, because Count 2 arose in the Central District of Illinois, if
Plaintiff elects to proceed, the new case shall be transferred to the District Court for the Central
District of Illinois. Service shall not be ordered on Defendant Dr. John Doe at this time.

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If for any reason, Plaintiff does not wish to proceed with the newly-opened case, he must
notify the Court within 30 days. Unless Plaintiff notifies the Court that he does not wish to
pursue the new action, he will be responsible for a separate filing fee in each case.
As for the instant case, Defendant HCU Administrator Jane Doe is dismissed from Count
1 with prejudice for the following reason:
•

Plaintiff makes no allegations plausibly suggesting a right to relief. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Nothing Plaintiff alleges plausibly suggests
Defendant HCU Administrator Jane Doe knew of and disregarded Plaintiff’s medical
needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Defendant Grievance Office John Doe is dismissed from Count 1 with prejudice for the

following reasons:
•

A Defendant who “rul[es] against a prisoner on an administrative complaint does not
cause or contribute to the violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007).
“Only persons who cause or participate in the violations are responsible.” Id. No
allegation suggests Grievance Office John Doe caused or contributed to the alleged
violation; and

•

A Defendant is generally not liable for the misdeeds of others simply because he knew
about them. “A layperson's failure to tell the medical staff how to do its job cannot be
called deliberate indifference.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009).
Grievance Office John Doe cannot be liable because he failed to tell the medical staff
how to treat Plaintiff’s ailments.

Disposition
The following counts are SEVERED into a separate action, for which the Clerk shall
open a new case: Count 2. In the new case, addressing Plaintiff’s deliberate indifference to
medical needs claim at East Moline Correctional Center the Defendant is Dr. John Doe. Plaintiff
shall notify the Court on or before October 10, 2012, if he does not wish to proceed on the new
case.
The following defendants are DISMISSED from this action with prejudice:
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HCU Administrator Jane Doe
Grievance Officer John Doe
The following defendants remain in the instant action:
Dr. David
The Clerk of Court shall prepare for Defendants DR. DAVID: (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, and this
Memorandum and Order to the Defendant’s place of employment as identified by Plaintiff. If
the 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 the Defendant, and the Court will require the Defendant to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure.
If the Defendant 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 Defendant (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 Defendant or counsel. If the plaintiff is
incarcerated in a correctional facility that participates in the Electronic Filing Program, service
may be made in accordance with General Order 2010-1 describing service under that program.
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Any paper received by a district judge or magistrate judge that has not been filed with the Clerk
or that fails to include a certificate of service will be disregarded by the Court.
Defendant is 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 Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Frazier
for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
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

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cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 6, 2012
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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