Hotchkiss v. David et al

Filing 28

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS HEREBY ORDERED that, pursuant to the mandate of the Court of Appeals, this Court's September 22, 2016, Judgment (Doc. 8) is VACATED and the case is REOPENED. IT IS FURTHER OR DERED that, pursuant to the mandate of the Court of Appeals, this Court's September 22, 2016, Order (Doc. 7) is VACATED IN PART, in that the only claim remaining on remand is COUNT 1 outlined above. The deliberate indifference claim against Woo ds remains dismissed with prejudice.In light of the mandate of the Court of Appeals, that part of this Court's September 22, 2016, Order (Doc. 7) assessing a "strike" against Plaintiff under 28 U.S.C. § 1915(g) for the dismissal of this case is also VACATED. Signed by Chief Judge Michael J. Reagan on 12/5/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES EUGENE HOTCHKISS,
Plaintiff,
vs.
A. DAVID,
Defendant.

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Case No. 16-cv-0752-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This case is now before the Court on remand from the United States Court of Appeals,
Seventh Circuit. Plaintiff brought this civil rights action pursuant to 28 U.S.C. § 1983 while he
was confined as a prisoner at Shawnee Correctional Center (“Shawnee”). He has since been
released. The appellate court’s mandate issued November 27, 2017 (Doc. 27), and accompanying
order (Doc. 27-1) affirmed in part and reversed in part this Court’s dismissal of Plaintiff’s
constitutional claims. (Doc. 7).
Specifically, the Seventh Circuit found that Plaintiff had stated a cognizable Eighth
Amendment claim against Defendant David on the theory that David subjected him to an
unnecessary 16-month delay of treatment in violation of the Eighth Amendment by prescribing
medication for his hip and knee pain in lieu of providing Plaintiff with the orthopedic shoes that
Plaintiff had been requesting since his placement at Shawnee. (Doc. 27-1. pp. 4-5). The Seventh
Circuit affirmed the dismissal of Defendant Woods. (Doc. 27-1, p. 6).

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Plaintiff’s claim against David for medical deliberate indifference in violation of the
Eighth Amendment shall be designated Count 1. In accordance with the mandate of the United
States Court of Appeals for the Seventh Circuit, Plaintiff may proceed on Count 1.
Disposition
IT IS HEREBY ORDERED that, pursuant to the mandate of the Court of Appeals, this
Court’s September 22, 2016, Judgment (Doc. 8) is VACATED and the case is REOPENED.
IT IS FURTHER ORDERED that, pursuant to the mandate of the Court of Appeals,
this Court’s September 22, 2016, Order (Doc. 7) is VACATED IN PART, in that the only claim
remaining on remand is COUNT 1 outlined above. The deliberate indifference claim against
Woods remains dismissed with prejudice.
In light of the mandate of the Court of Appeals, that part of this Court’s September 22,
2016, Order (Doc. 7) assessing a “strike” against Plaintiff under 28 U.S.C. § 1915(g) for the
dismissal of this case is also VACATED.
The Clerk of Court shall prepare for Defendant David: (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 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 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

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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.
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 Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams 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).
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

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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: December 5, 2017

s/ MICHAEL J. REAGAN
United States Chief District Judge

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