Faulkner v. Fenoglio

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. 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 J. Phil Gilbert on 8/23/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ISAAC FAULKNER, # R-30210,
Plaintiff,
vs.
DR. JAMES FENOGLIO,
Defendant.

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Case No. 13-cv-762-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Hill Correctional Center (“Hill”), has brought this pro se
civil rights action pursuant to 42 U.S.C. § 1983. His claim arose during his confinement at Lawrence
Correctional Center (“Lawrence”). Plaintiff is serving an 11-year sentence for aggravated battery. He
claims that Defendant Fenoglio, a physician, was deliberately indifferent to a serious medical
condition.
More specifically, Plaintiff’s complaint alleges that while playing basketball on December 23,
2011, he fell and fractured his right wrist. During Defendant Fenoglio’s examination of the injury,
Plaintiff told Defendant Fenoglio he was in extreme pain, and asked to be sent to the emergency room.
However, Defendant Fenoglio said there was not much he could do because the shift was about to
change at 3:00 p.m. (Doc. 1, pp. 5-6).
Plaintiff’s wrist was not x-rayed until four days later, on December 27, when this procedure
was performed at the prison’s health care unit. By that time, Plaintiff’s hand was swollen, painful,
bruised, and one finger was completely numb. Plaintiff made Defendant Fenoglio aware of his
condition during his December 27 follow-up examination, at which Defendant Fenoglio viewed the x-

rays and diagnosed the fracture (Doc. 1, p. 7). However, Defendant Fenoglio did not provide any
further treatment.
Plaintiff was, however, referred for an outside orthopedic consultation on December 27, 2011.
Approval for this visit was given on January 3, 2012. However, the outside clinic was not contacted
by the prison until a week later, on January 10, 2012. The orthopedic consultation took place on
January 12, 2012. Plaintiff attributes this delay to Defendant Fenoglio’s inaction.
The orthopedic clinic told Plaintiff that he would have to undergo follow-up therapy after his
cast was removed. Defendant Fenoglio never provided Plaintiff with the recommended therapy,
despite Plaintiff’s grievances (Doc. 1, p. 8). As a result, Plaintiff has suffered permanent injury,
including reduced range of motion in his wrist, numbness in his finger, pain, and impairment of the use
of his arm. Plaintiff seeks damages for Defendant Fenoglio’s delay and denial of medical care.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint,
and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be
granted, or seek monetary relief from an immune defendant.
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 his serious medical
needs, which shall receive further review.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 2) shall be referred to United States
Magistrate Judge Frazier for further consideration.
Disposition
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
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Clerk is DIRECTED to mail these forms, a copy of the complaint, and this 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.
If the Defendant cannot be found at the address provided by Plaintiff, the employer shall
furnish the Clerk with the Defendant’s current work address, or, if not known, the Defendant’s lastknown 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, nor disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is entered), a
copy of every further 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 any document was served on Defendant 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 Philip M. Frazier for further pre-trial proceedings, which shall include a determination on the
pending motion for recruitment of counsel (Doc. 2).
Further, this entire matter shall be REFERRED to United States Magistrate Judge Frazier for
disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a
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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 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: August 23, 2013
s/J. Phil Gilbert
United States District Judge

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