Maxey v. Cross et al

Filing 4

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. The CLERK is DIRECTED to mail Plaintiff a blank form motion for the recruitment of counsel, and a blank civil rights complaint form, which he is encouraged to use if he should wish to fi le an amended complaint. Defendants KRUSE and SCHNEIDER are DISMISSED from this action without prejudice. Pursuant to Federal Rule of Civil Procedure 4, within 14 days of the date of this Order (on or before December 1, 2014), the United States Mar shals Service SHALL personally serve upon Defendant CROSS the service packet containing the summons, form USM-285, a copy of the complaint (Doc. 1 ), and this memorandum and order. This action is REFERRED to the United States Magistrate Judge for further pre-trial proceedings, including the resolution of Plaintiff's request for a preliminary injunction (Doc. 1 ) as soon as practicable, to include a report and recommendation. Signed by Judge J. Phil Gilbert on 11/18/14. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HARRY E. MAXEY, # 29652-080,
Plaintiff,
vs.
JAMES CROSS,
DOUGLAS KRUSE,
and K. SCHNEIDER,
Defendants.

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Case No. 14-cv-1263-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff is currently incarcerated at the Federal Correctional Institution at Greenville,
Illinois, (“Greenville”), where he is serving a 78-month sentence. He initiated this action by
filing a pro se “Emergency Motion” (Doc. 1) seeking a preliminary injunction, based on his
claim that Defendants have violated the Eighth Amendment’s prohibition against cruel and
unusual punishment. Plaintiff suffers from post-polio syndrome as well as a number of other
health problems. He asserts that Defendants have failed to provide him with a functional
wheelchair and other items necessary to maintain his health and mobility.
Specifically, Plaintiff arrived at Greenville in March 2014 with a wheelchair that was
inadequate to meet his medical needs. He requested the medical staff to provide him with a foam
gel cushion because he had developed pressure sores due to the lack of padding on the
wheelchair seat. He had been experiencing severe pain in his right leg and hip as a result. Two
months later (in May 2014), he received the cushion (Doc. 1, p. 3). However, his wheelchair
continued to give him problems and cause him pain.

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Plaintiff requested Medical Administrator Pollman (who is not named as a Defendant) to
get him a new or different chair that would meet his disability-related medical needs and relieve
his pain. She obtained a temporary replacement chair, but Plaintiff claims it was inadequate
because it had design flaws. In July 2014, a front wheel bearing on that chair “went out” while
Plaintiff was being pushed in it, causing him to fall and sustain injuries (Doc. 1, p. 4). He was
given another replacement chair, but that chair was the wrong size and in poor condition, causing
him to develop painful pressure sores. Plaintiff’s repaired chair was to have been returned to
him in August 2014, but it was given to another inmate on an emergency basis. Plaintiff saw the
chair, and noted its rear wheels were bent and not lined up properly.
Around August 30, 2014, the gel-insert in Plaintiff’s special foam gel cushion began to
leak. He asked medical staff to repair it. A week later, Nurse Green returned the cushion to him,
but the foam gel insert had been removed and had not been replaced. Plaintiff explained that
without the foam gel component, the cushion would not function to redistribute his weight and
thus would not relieve or prevent his pressure sores. He was informed by the medical staff that
no further repair or replacement would be made to his cushion.
On or about September 1, 2014, Plaintiff was offered the “repaired” wheelchair which
had the bent rear wheels. He refused to accept it because he believed it was unsafe and could
cause him to be injured. He was initially told that he would be given a different used wheelchair.
However, on September 14, 2014, Administrator Pollman, Assistant Warden Escobell, and
Defendant Warden Cross told Plaintiff that he would not get another chair (Doc. 1, p. 5). On
October 4, 2014, the left front wheel of the wheelchair he was using broke off, causing another
painful fall. He asserts that his Eighth Amendment rights have been violated, and requests the
Court to appoint him an attorney and issue a preliminary injunction requiring Defendants to issue

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him a proper wheelchair and provide him with medication (Doc. 1, p. 6). Plaintiff never
specifies what medication he believes he needs that has not been given to him.
Plaintiff did not file a complaint, which is the normal way to commence a civil action.
FED. R. CIV. P. 3.; see also Advisory Committee Notes, 1937 Adoption. Nonetheless, based on
the allegations contained in Plaintiff’s “emergency motion,” the Court finds it appropriate to
construe that document as a complaint for alleged violations of Plaintiff’s constitutional rights by
persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). Therefore the motion (Doc. 1) shall also be referred to below as the
complaint. As such, it is subject to a preliminary merits review pursuant to 28 U.S.C. § 1915A.
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 claim that Medical Administrator Pollman and other unnamed Greenville
medical staff were deliberately indifferent to his serious medical needs for a functional
wheelchair and equipment to mitigate his painful pressure sores. Because Plaintiff is seeking
only injunctive relief, it is appropriate for the action to proceed against Defendant Warden Cross.
See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a claim for
injunctive relief is the government official responsible for ensuring any injunctive relief is
carried out).
However, Defendants Kruse and Schneider shall be dismissed from the action at this time
without prejudice. Other than including their names in the caption of his pleading, Plaintiff does

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not mention these individuals at all in the body of the complaint or in any of his factual
allegations. Therefore, the Court cannot discern whether these Defendants are alleged to have
violated Plaintiff’s constitutional rights, or why it might be necessary to include them as parties
in order to obtain the relief Plaintiff seeks. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir.
1998) (“A plaintiff cannot state a claim against a defendant by including the defendant’s name in
the caption.”).
Pending Motion for Preliminary Injunction (Doc. 1)
While Plaintiff’s initial document has been construed as his complaint, it still contains his
motion for the issuance of a preliminary injunction. In order to obtain preliminary injunctive
relief, Plaintiff must demonstrate that: (1) his underlying case has some likelihood of success on
the merits; (2) no adequate remedy at law exists, and; (3) Plaintiff will suffer irreparable harm
without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If those three factors
are shown, the district court must then balance the harm to each party and to the public interest
from granting or denying the injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.
2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
Upon preliminary review, the Court finds that Plaintiff’s motion warrants prompt
consideration. Accordingly, Plaintiff’s request for a preliminary injunction (Doc. 1) shall be
REFERRED pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c) to a United States
Magistrate Judge, who shall resolve the request as soon as practicable and issue a report and
recommendation. If it becomes apparent that further action is necessary, the undersigned Judge
should be notified immediately. Any motions filed after the date of this Order that relate to this
request for injunctive relief or seek leave to amend the complaint are also hereby REFERRED
to the United States Magistrate Judge.

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Other Pending Motions
Plaintiff has filed a motion for leave to proceed in forma pauperis (Doc. 2), which shall
be addressed in a separate Order of this Court.
Also contained in Doc. 1 is Plaintiff’s request for the appointment of counsel. This
motion is DENIED without prejudice, because Plaintiff has not provided the Court with any
information as to whether he has tried to obtain counsel on his own or whether he is unable to
adequately represent himself in this matter. If Plaintiff wishes the Court to reconsider this
request, he must submit a proper motion for the recruitment of counsel. To that end, the Clerk
shall be directed to provide him with a blank form motion.
Disposition
The CLERK is DIRECTED to mail Plaintiff a blank form motion for the recruitment of
counsel, and a blank civil rights complaint form, which he is encouraged to use if he should wish
to file an amended complaint.
Defendants KRUSE and SCHNEIDER are DISMISSED from this action without
prejudice.
The Clerk of Court is directed to complete, on Plaintiff’s behalf, a summons and form
USM-285 for service of process on Defendant CROSS. The Clerk shall issue the completed
summons, and prepare a service packet for the Defendant consisting of:

the completed

summons, the completed form USM-285, a copy of the complaint (Doc. 1), and this
memorandum and order. The Clerk shall deliver the service packet for the Defendant to the
United States Marshal Service for personal service on the Defendant.
Pursuant to Federal Rule of Civil Procedure 4, within 14 days of the date of this Order
(on or before December 1, 2014), the United States Marshals Service SHALL personally

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serve upon Defendant CROSS the service packet containing the summons, form USM-285, a
copy of the complaint (Doc. 1), and this memorandum and order. All costs of service shall be
advanced by the United States, and the Clerk shall provide all necessary materials and copies to
the United States Marshals Service. The Court will not require Defendant to pay the full costs of
formal service, as the Court is ordering personal service to expedite the resolution of Plaintiff’s
motion for preliminary injunctive relief.
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. 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 28 U.S.C. § 636(b)(1)(B) and Pursuant to Local Rule 72.1(c), this action is
REFERRED to a United States Magistrate Judge for further pre-trial proceedings, including the
resolution of Plaintiff’s request for a preliminary injunction (Doc. 1) as soon as practicable, to
include a report and recommendation. If it becomes apparent that further action is necessary, the
undersigned Judge should be notified immediately.
Further, this entire matter shall be REFERRED to the United States Magistrate Judge 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

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under § 1915, Plaintiff will be required to pay the full amount of the costs, even if his application
to proceed in forma pauperis is 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: November 18, 2014
s/J. Phil Gilbert
United States District Judge

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