Smith v. Rector et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, the Clerk of Court shall prepare for Defendants SHAW and RECTOR: (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 G. Patrick Murphy on 11/14/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRELL SMITH, # R-16310,

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Plaintiff,
vs.
ANGEL RECTOR, DR. SHAW,
and DEBBIE GRAHAM,
Defendants.

Case No. 13-cv-837-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court for review of Plaintiff’s First Amended Complaint (Doc.
8), filed in response to the Order at Doc. 7. The Court dismissed all the claims raised by Plaintiff
in his original complaint (Doc. 1), but gave him leave to file an amended complaint regarding
Count 5 – that he was refused any treatment for his toenail fungus. Plaintiff faces a heightened
risk of harm from untreated foot problems, because he is diabetic.
The amended complaint states that Plaintiff, who is an inmate at Pinckneyville
Correctional Center, has seen Defendants Shaw and Rector for medical visits, but both have
refused to treat the toenail fungus (Doc. 8, pp. 1-2). This condition is painful when Plaintiff
walks. Of greater concern, though, is his fear that he may develop gangrene and possibly lose a
toe or face other complications due to the lack of treatment. He has filed grievances over the
denial of treatment, to no avail. Plaintiff seeks injunctive relief as well as compensatory and
punitive damages, under 42 U.S.C. § 1983 (Doc. 8, p. 6).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
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amended 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 Defendants Rector and Shaw for deliberate indifference to his medical
needs, for denying treatment for his toenail fungus.
However, Plaintiff failed to include any allegations against Defendant Graham in the
amended complaint. He lists her name in the caption, but makes no further mention of her.
Plaintiffs are required to associate specific defendants with specific claims, so that defendants are
put on notice of the claims brought against them and so they can properly answer the complaint.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). Where a
plaintiff has not included a defendant in his statement of the claim, the defendant cannot be said
to be adequately put on notice of which claims in the complaint, if any, are directed against him.
Furthermore, merely invoking the name of a potential defendant is not sufficient to state a claim
against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Accordingly,
Defendant Graham will be dismissed from this action.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
The motion for service of process at government expense (Doc. 4) shall be GRANTED
IN PART AND DENIED IN PART. Service shall be ordered below on those Defendants who
remain in the action. No service shall be made on the dismissed Defendant.
Disposition
Defendant GRAHAM is DISMISSED from this action.

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The Clerk of Court shall prepare for Defendants SHAW and RECTOR: (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.
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
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

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Judge Donald G. Wilkerson for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
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 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).
IT IS SO ORDERED.
DATED: November 14, 2013
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G. PATRICK MURPHY
United States District Judge

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