Lohnes v. Martin et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, denying 3 MOTION to Appoint Counsel filed by James Lohnes. Defendants HODGES and MARTIN are DISMISSED from this action without prejudice. The Clerk of Court shall prepare for Defendant Fenoglio: (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 Michael J. Reagan on 9/10/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES LOHNES, # B-41524,
Plaintiff,

vs.
PHIL MARTIN, MARC HODGES, and,
JAMES FENOGLIO,
Defendants.

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Case No. 12-cv-946-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:

Plaintiff, currently incarcerated at Lawrence Correctional Center, has brought this
pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendant Fenoglio
was deliberately indifferent to a serious medical condition. More specifically, Plaintiff claims
that, since January 2011, he has suffered debilitating pain at the base of his skull. The area has
now developed a painful protrusion and although he has repeatedly complained to Defendant
Fenoglio, a Lawrence physician, of his severe pain, Fenoglio has failed to properly treat his
condition. Plaintiff alleges that he also told Defendant Hodges, the Warden, and Defendant
Martin, Health Care Unit Administrator, of his inability to obtain treatment for this ongoing,
painful condition.
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 against Defendant Fenoglio for deliberate
indifference to medical needs (Count 1) However, the claims against Defendants Hodges and
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Martin are dismissed on initial review because the doctrine of respondeat superior is not
applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(citations omitted).

Plaintiff has not alleged that either Hodges or Martin is “personally

responsible for the deprivation of a constitutional right.” Id. Accordingly, these Defendants are
DISMISSED without prejudice.
Pending motion
The Court DENIES without prejudice Plaintiff’s motion for appointment of
counsel (Doc. [3]). 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, there is no indication that Plaintiff has even made an effort to obtain counsel
on his own much less been effectively precluded from obtaining counsel on his own. Plaintiff
may choose to re-file this motion at a later stage in the litigation.
Disposition
Defendants HODGES and MARTIN are DISMISSED from this action without
prejudice.
The Clerk of Court shall prepare for Defendant Fenoglio: (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

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Memorandum and Order to Defendant’s place of employment as identified by Plaintiff. If
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 Defendant, and the Court will require 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.

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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 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
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 Williams for further pre-trial proceedings.

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Further, this entire matter is REFERRED to United States Magistrate Judge
Williams 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
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: 9/10/2012

s/ MICHAEL J. REAGAN__
MICHAEL J. REAGAN
United States District Judge
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