Riley v. Davis et al

Filing 11

ORDER REFERRING case to Magistrate Judge Donald G. Wilkerson, Granting 4 MOTION for Service of Process at Government Expense filed by Danny Riley, Denying 7 MOTION status filed by Danny Riley, Denying 2 MOTION to Appoint Counsel filed by Danny Riley. Defendant RANDY DAVIS is DISMISSED from this action with prejudice. The Clerk of Court shall prepare for Defendant Dr. J. GARDNER: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Randy Davis terminated. Signed by Judge G. Patrick Murphy on 8/21/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANNY RILEY,
Plaintiff,
v.
RANDY DAVIS,
Dr. J. GARDNER,
DENTAL ASSISTANT AMBER,
and C/O JOHN DOE,
Defendants.

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Civil No. 12-671-GPM

MEMORANDUM and ORDER
MURPHY, District Judge:
Plaintiff, currently incarcerated at Pontiac Correctional Center, has brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he had a problem with a wisdom
tooth beginning in September, 2010, when he was incarcerated at Pinckneyville Correctional Center.
He alleges that Dr. Gardner ignored his complaints of extreme pain and refused to give him effective
treatment, and that both Dr. Gardner and Dental Assistant Amber caused him great pain by trying
to extract his tooth even though they knew it could not be removed by them. He alleges that
Correctional Officer John Doe refused to allow him out of his cell to attend a scheduled dental
appointment. Lastly, he alleges that Warden Randy Davis’ delay in processing his emergency
grievance prevented him from receiving effective treatment sooner.
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 claim against Defendants Dr. J. Gardner, Dental Assistant Amber and Correctional
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Officer John Doe for deliberate indifference to his serious medical needs, in violation of the Eighth
Amendment. He has not, however, stated a claim against Warden Randy Davis. A prison inmate
has no constitutional right to have his grievance addressed. See, Massey v. Helman, 259 F.3d 641,
647 (7th Cir. 2001); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Therefore, any
alleged delay in processing or responding to the grievance does not give rise to a constitutional
claim. Defendant Randy Davis will be dismissed with prejudice.
Pending motions
The Court DENIES without prejudice Plaintiff’s motion for appointment of counsel.
(Doc. 2). There is no constitutional or statutory right to appointment of counsel in federal civil cases.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). Federal District Courts have discretion
under 28 U.S.C. § 1915(e)(1) to request counsel to assist pro se litigants. Id. When presented with
a request to appoint counsel, the Court must consider: “(1) has the indigent plaintiff made a
reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given
the difficulty of the case, does the plaintiff appear competent to litigate it himself [.]” Pruitt v. Mote,
503 F.3d 647, 654 (7th Cir. 2007). With regard to the first step of the inquiry, while Plaintiff
indicates that he had contacted two attorneys, this does not constitute a diligent attempt to obtain
counsel. There is no indication that Plaintiff has been effectively precluded from obtaining counsel
on his own. As to the second step, on the record now before the Court, it appears that Plaintiff is
competent to proceed without counsel, at least at this stage. Plaintiff may choose to re-file this
motion at a later stage in the litigation.
Plaintiff’s Motion for Service of Process (Doc. 4) is GRANTED. Service shall be made as
set forth below.
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Plaintiff’s Motion for Leave to Proceed in Forma Pauperis (Doc. 3) will be ruled on in due
course.
Plaintiff’s Motion for Status (Doc. 7) is DENIED as moot.
Disposition
In summary, Defendant RANDY DAVIS is DISMISSED from this action with prejudice.
The Clerk of Court shall prepare for Defendant Dr. J. GARDNER: (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 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.
Service shall not be made on Defendants DENTAL ASSISTANT AMBER or C/O JOHN
DOE until such time as Plaintiff has identified them by name in a properly filed amended complaint.
Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and
service addresses for these individuals.
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

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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. If 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. 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.
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 is REFERRED to United States Magistrate Judge Wilkerson 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 may have been granted. See 28 U.S.C. §
1915(f)(2)(A).

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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 for want of
prosecution. See FED . R. CIV . P. 41(b).
IT IS SO ORDERED.
DATED: August 21, 2012.

s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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