Gordon v. Campanella et al
Filing
6
ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 3/23/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PATRICK GORDON,
#N50657,
Plaintiff,
vs.
Case No. 17-cv-00143-DRH
J. CAMPANELLA,
LUCE,
P. GEORGE,
BUCKMEIER,
MAJOR CAMPBELL,
LIEUTENANT PARISH,
UNKNOWN PARTY,
WEXFORD HEALTH SOURCES, INC.
DOCTOR APOSTOL, and
VINEYARD,
Defendants.
MEMORANDUM & ORDER
HERNDON, District Judge:
Plaintiff Patrick Gordon, an inmate who is currently incarcerated at Vienna
Correctional Center (“Vienna”), brings this civil rights action pursuant to 42
U.S.C. § 1983 for deprivations of his constitutional rights at Vienna. (Doc. 1).
According to the Complaint, Plaintiff was denied treatment for an ear infection
from March 13, 2016 until January 24, 2017. (Doc. 1, pp. 6-14). He was not
referred to an ear, nose, and throat specialist until eight months after his
diagnosis. Id. As a result of this delay, Plaintiff endured unnecessary pain and
suffered permanent hearing loss. Id. He now requires the use of hearing aids.
1
Plaintiff names the following defendants in connection with his federal and
state claims for the denial of adequate medical care and mishandling of his
grievances:
Warden
Campanella,
Assistant
Warden
Luce,
Health
Care
Administrator George, Doctor Apostol, Counselor Buckmeier, Major Campbell,
Lieutenant
Parish,
ADA
Coordinator Vineyard,
Unknown
Party/Utilization
Management, and Wexford Health Sources, Inc. (Doc. 1, pp. 1-3). Plaintiff seeks
monetary damages and injunctive relief against the defendants. (Doc. 1, pp. 1419).
This case is now before the Court for a preliminary review of the Complaint
(Doc. 1) pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may
be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Frivolousness is an
objective standard that refers to a claim that any reasonable person would find
meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
2
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross
“the line between possibility and plausibility.” Id. at 557. At this juncture, the
factual allegations of the pro se complaint are to be liberally construed.
See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). The
Complaint survives preliminary review under this standard.
The Complaint
According to the Complaint, Plaintiff suffered from an untreated, diagnosed
ear infection for eight months at Vienna. (Doc. 1, pp. 6-13). During this same
time period, he made thirty-seven visits to the prison’s health care unit (“HCU”).
(Doc. 1, p. 15). He was repeatedly prescribed eye drops for the ear infection.
(Doc. 1, pp. 6-13). Plaintiff’s symptoms grew worse. Id. When he was finally
referred to a specialist, Plaintiff learned that he suffered permanent hearing loss
in his left ear and required a hearing aid for his right ear. Id. He now claims that
the defendants were negligent in their treatment of him and responded to his
serious medical needs with deliberate indifference. (Doc. 1, p. 18).
Plaintiff provides the following timeline of events in support of his claims:
December 30, 2015:
Plaintiff visited the HCU with complaints of left ear
and neck pain, bad headaches, and shortness of breath.
He was told that his condition was “nothing serious.”
(Doc. 1, p. 6).
February 25, 2016:
Plaintiff went to the HCU again with complaints of
pain in his left ear and the left side of his head. He was
reminded that he was only in the HCU for an
appointment with the eye doctor and told to flush his ear
with warm soapy water and to take an aspirin. Id.
3
March 31, 2016:
After speaking directly with Lieutenant Parish and
Assistant Warden Luce about his health concerns,
Plaintiff awoke to find blood and puss all over his pillow
and shirt. Doctor Apostol diagnosed Plaintiff with an ear
infection the same day and prescribed him eye drops for
the ear infection. Id.
April 9, 2016:
Plaintiff sent three requests to see Doctor Apostol after
the eye drops made his left ear worse. Id.
April 27, 2016:
Plaintiff met with a nurse in the HCU, who claimed that
she only received one of the three sick call slips that he
submitted. After requiring Plaintiff to pay a third copay 1 for the visit, the nurse looked into his left ear and
diagnosed him with a perforated ear drum. She gave
Plaintiff acetaminophen (325 mg) and referred him to
the doctor. Plaintiff filed a grievance to complain about
the “medical neglect” and the nurse’s “bad attitude.”
(Doc. 1, p. 7).
April 28, 2016:
Plaintiff met with Doctor Apostol and complained of pain
in his ear and neck that radiated into his left eye and
caused throbbing headaches.
Instead of examining
Plaintiff, the doctor prescribed him more eye drops,
Claritin, and ibuprofen. Plaintiff received no antibiotics.
Id.
May 10, 2016:
After blood was drawn from Plaintiff for “no reason,” he
spoke with Warden Campanella about his ear infection.
The warden indicated that she was going to speak with
Administrator George.
In addition, Plaintiff wrote
“several times” to ADA Coordinator Vineyard. Id.
1
Plaintiff takes issue with the large number of copayments he was required to pay for
medical services related to his ear infection. However, an inmate’s constitutional rights
are not violated by the collection of a fee for prison medical or dental services. Whether
or not a statutory exemption should apply to the co-payment rule is a question of state
law, not cognizable in a § 1983 action. Poole v. Isaacs, 703 F.3d 1024, 1027 (7th Cir.
2012) (“the imposition of a modest fee for medical services, standing alone, does not
violate the Constitution”). Should Plaintiff wish to pursue this matter further, he must do
so in state court.
4
May 17, 2016:
A collegial review of Doctor Apostol’s recommendations
for diagnosis and treatment of Plaintiff was commenced.
(Doc. 1, p. 8).
June 1, 2016:
Plaintiff directed multiple written requests for treatment
and grievances regarding the lack thereof to George,
Vineyard, Campanella, Luce, Buckmeier, Parish, and
Campbell. Id.
June 7, 2016:
Plaintiff filed another grievance indicating that he was
misdiagnosed with an ear infection when his condition
was far more serious. Id.
June 17, 2016:
After Plaintiff described his symptoms of hearing loss
and significant pain to a nurse at sick call, she indicated
that something was “seriously wrong.” The nurse then
observed gray and red inflammation when examining
Plaintiff’s left ear. Id.
June 21, 2016:
Plaintiff spoke with Doctor Apostol on the call line. The
doctor told Plaintiff that he was still waiting for the
results of the collegial review. Id.
June 27, 2016:
Doctor Apostol attempted to conduct a hearing test on
Plaintiff but did not know how to use the equipment.
When he asked a nurse for help, she refused to assist
the doctor and walked away “with an attitude.” Doctor
Apostol indicated that Plaintiff failed his hearing test in
both ears. (Doc. 1, pp. 8-9).
June 28, 2016:
Plaintiff spoke with Counselor Buckmeier about his
medical issues and was told to file a grievance. When
Plaintiff explained that he had filed many grievances, the
counselor said he received none of them. (Doc. 1, p. 9).
July 9 or 10, 2016:
Plaintiff spoke with Warden Campanella about his
miscellaneous issues, including his ear infection,
stomach issues, staff conduct, and grievances. Rather
than addressing his complaints, the warden asked him if
he had ever considered a prison transfer. Id.
August 5, 2016:
Plaintiff spoke with Doctor Apostol on the call line and
complained of persistent symptoms that now included a
possible kidney or urinary tract infection due to
5
overconsumption of pain relievers. Plaintiff reported
taking 6-10 pills each day that he purchased from
commissary in order to control his ear pain.
In
response to Plaintiff’s complaints, Doctor Apostol
prescribed more eye drops. Id.
August 16, 2016: Plaintiff spoke with Doctor Apostol again on the doctor
call line. He reported “ear damage,” dizziness, nausea,
throbbing head pain, and difficulty walking straight.
(Doc. 1, p. 10).
August 31, 2016: Plaintiff was sent to Marion Hearing Center, where the
hearing instrument specialist recommended an
appointment with an ear, nose, and throat specialist
(“ENT”) and an MRI to determine the extent of damage
to Plaintiff’s ear.
The instrument specialist also
recommended a right side hearing aid, but said that
nothing could be done for the left side. Id.
September 12, 2016:
When Plaintiff returned to Marion Hearing Center
to pick up his hearing aid, the same specialist again
“strongly” recommended that he see an ENT and
undergo an MRI. The collegial review board denied the
request the same day. The doctor prescribed Plaintiff
Tramadol for pain but warned him that Administrator
George would cancel the prescription as soon as he
found out about it. (Doc. 1, pp. 10-11).
September 19, 2016:
Doctor Apostol indicated that he would appeal the
collegial review board’s decision. Plaintiff received and
reviewed his medical records from Marion Hearing
Center and noted that the records incorrectly attributed
his hearing loss to a “child, family genetic history.”
(Doc. 1, p. 11).
October 3, 2016: Plaintiff filed an emergency grievance for the “denied
ENT,” and it was sent to Warden Campanella. Id.
October 12, 2016: The collegial review board finally approved the request
for a referral to an ENT. Id.
November 21, 2016:
Plaintiff was sent to Midwest Ear Nose & Throat
Clinic, where a physician’s assistant recommended an
6
MRI, a possible left side hearing aid, and medication.
(Doc. 1, p. 12).
November 30, 2016:
The collegial review board denied the request for
an MRI even though it was submitted by the outside
specialist. An appeal was filed. Id.
December 5, 2016:
Plaintiff received a copy of his medical file. Id.
December 13, 2016:
Plaintiff received a letter from Wexford Health
Sources, Inc. denying the request for an MRI of Plaintiff’s
brain stem with dye. The same document showed that
“Doctor Ritz” approved the request. Id.
January 9, 2017: Plaintiff was sent to Herrin Hospital for an MRI of his
brain. (Doc. 1, p. 13).
January 13, 2017: Plaintiff met with a doctor for a follow-up visit to discuss
the MRI. The doctor said, “I’ve heard about you. . . . I’m
not doing anything for you[.] [Y]ou are seeing me so I
can tell you that you don’t have a tumor.” Id.
January 16, 2017: Plaintiff filed a grievance to complain about the doctor
who conducted the follow-up appointment because he
did not offer a treatment plan or prescribe pain
medication.
The doctor also did not give Plaintiff
“anything” for his stomach or blood in his stool. The
doctor simply suggested that Plaintiff see his care
provider. Id.
(Doc. 1, pp. 6-13).
Between March 13, 2016 and January 24, 2017, Plaintiff made multiple
requests for treatment of his ear infection.
Id. He also submitted numerous
grievances to complain about the denial of treatment. Id. Plaintiff claims that the
defendants routinely mishandled the grievances, by ignoring, delaying, and
denying them. (Doc. 1, p. 14). He also claims that they responded to his serious
medical needs with deliberate indifference and negligence. (Doc. 1, p. 18). He
7
seeks monetary damages and injunctive relief against them. Plaintiff’s request for
injunctive relief is extensive. (Doc. 1, pp. 14-18). He asks the Court to issue an
Order requiring Vienna officials to rewrite the policy for processing grievances
(Doc. 1, p. 14), to rewrite the procedure and timeline for processing inmate
medical requests (Doc. 1, pp. 15-17), and to terminate the prison’s employment
contract with several defendants. (Doc. 1, pp. 16-19).
Discussion
To facilitate the orderly management of future proceedings in this case, and
in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and
10(b), the Court deems it appropriate to organize the claims in Plaintiff’s pro se
Complaint (Doc. 1) into the following counts:
Count 1 -
Eighth Amendment deliberate indifference to medical needs
claim against Defendants for providing Plaintiff with
inadequate medical care for his left ear infection at Vienna
from March 13, 2016 until January 24, 2017.
Count 2 -
Fourteenth Amendment due process claim against Defendants
for mishandling Plaintiff’s grievances addressing his
inadequate medical care at Vienna from March 13, 2016 until
January 24, 2017.
Count 3 -
Illinois negligence and/or medical malpractice claim against
Defendants for providing Plaintiff with inadequate treatment
for his left ear infection at Vienna from March 13, 2016 until
January 24, 2017.
As discussed in more detail below, Count 1 survives preliminary review
against all of the defendants, except Unknown Party/Utilization Management and
Wexford Health Sources, Inc. Count 2 does not survive preliminary review and
8
shall be dismissed with prejudice against all of the defendants. Finally, Count 3
shall be dismissed without prejudice.
Claim Subject to Further Review
Count 1
The Eighth Amendment to the United States Constitution protects
prisoners from cruel and unusual punishment. U.S. CONST., amend. VIII. The
Eighth Amendment safeguards prisoners against a lack of medical care that may
result in pain and suffering that serves no penological purpose.
See Perez v.
Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (citations omitted); Berry v.
Peterman, 604 F.3d 435 (7th Cir. 2010). In order to state a claim, a plaintiff
must show that: (1) his medical need was sufficiently serious (a subjective
standard); and (2) the state officials acted with deliberate indifference to his
medical needs (a subjective standard). Sherrod v. Lingle, 223 F.3d 605, 619 (7th
Cir. 2000).
The allegations in the Complaint satisfy the objective component of this
claim for screening purposes.
A medical condition is considered objectively
serious if it has been diagnosed by a physician as requiring treatment or would be
obvious to a layperson. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)
(citing Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009)).
Plaintiff’s ear
infection was ultimately diagnosed by a prison nurse, prison doctor, and two
specialists.
The delay in diagnosis and treatment caused Plaintiff to suffer
9
months of unnecessary pain and hearing loss. See Zentmeyer v. Kendall County,
220 F.3d 805, 810 (7th Cir. 2000) (an ear infection, though a “common malady,”
could be deemed objectively serious where it “inflicted prolonged suffering” and
required extensive treatment). See also Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997) (condition is objectively serious if the “failure to treat it could
result in further significant injury or unnecessary and wanton infliction of pain”).
The ear infection described by Plaintiff is sufficiently serious to support an Eighth
Amendment claim at screening.
In order to survive preliminary review, the Complaint must also satisfy the
subjective component of Plaintiff’s Eighth Amendment claim.
To do so, the
allegations must suggest that each defendant exhibited deliberate indifference to
his serious medical need.
This is shown when prison officials “know of and
disregard an excessive risk to inmate health.” Greeno v. Daley, 414 F.3d 645,
653 (7th Cir. 2005). They must “both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists” and “must also
draw the inference.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
The Complaint suggests that the following defendants were aware of
Plaintiff’s ear infection, hearing loss, and related symptoms but failed to take
steps to secure timely treatment: Warden Campanella, Assistant Warden Luce,
HCU Administrator George, Doctor Apostol, ADA Coordinator Vineyard,
Counselor Buckmeier, Major Campbell, and Lieutenant Parish. Plaintiff informed
each of these defendants verbally or in writing that he was suffering from an
10
untreated or improperly treated ear infection, hearing loss, and pain.
requested immediate medical care.
He
These defendants ignored his requests,
unreasonably delayed treatment, or undertook an ineffective course of treatment.
Count 1 is subject to further review against all of them.
But see Phillips v.
Wexford Health Sources, Inc., 522 F. App’x 364 (7th Cir. 2013) (no deliberate
indifference found where prison officials and medical providers promptly treated
inmate’s ear infection with Bactrim antibiotic).
The Complaint does not articulate a claim of deliberate indifference against
the Unknown Party identified only as “Utilization Management” in the case
caption. (Doc. 1, p. 1). Plaintiff includes no allegations against this defendant in
the statement of claim.
(Doc. 1, pp. 6-13).
“A plaintiff cannot state a claim
against a defendant by including the defendant’s name in the caption.”
See
Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Section 1983 creates a
cause of action based on personal liability and predicated upon fault. Pepper v.
Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). “[T]o
be liable under § 1983, an individual defendant must have caused or participated
in a constitutional deprivation.”
Id. at 810.
Because Plaintiff sets forth no
allegations against “Utilization Management,” the Complaint does not suggest that
this defendant caused a violation of his constitutional rights. Count 1 shall be
dismissed without prejudice against this defendant.
Wexford is a private corporation that serves as Vienna’s healthcare
provider.
Plaintiff names Wexford as a defendant but includes few allegations
11
against this defendant in the Complaint. According to the allegations, Wexford
allegedly denied the request for an MRI of Plaintiff’s brain stem in December
2016.
(Doc. 1, p. 12).
letterhead.
Id.
Plaintiff received a letter to this effect on Wexford’s
However, a note from Doctor Ritz on the same letterhead
indicated that the test was approved, and Plaintiff received an MRI less than a
month later. (Doc. 1, p. 13).
It is therefore unclear why Plaintiff named Wexford as a defendant in this
action. By all indications, Plaintiff did so only because the private corporation
employed health care providers who worked at Vienna. This is not enough to
state a claim against Wexford.
Plaintiff cannot rely on a theory of respondeat
superior, or supervisory liability, when bringing a claim under § 1983. Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). A private corporation will generally only be
held liable under § 1983 for an unconstitutional policy or custom that results in a
constitutional deprivation. Perez v. Fenoglio, 792 F.3d 768, 780 (7th Cir. 2015)
(citing Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir.
2014)).
The Complaint describes no such policy or custom attributable to
Wexford. Therefore, Count 1 shall be dismissed without prejudice against this
defendant as well.
Claims Subject to Dismissal
Count 2
The Complaint states no independent Fourteenth Amendment due process
claim against the defendants for mishandling his grievances. The Seventh Circuit
12
Court of Appeals has long held that “a state’s inmate grievance procedures do not
give rise to a liberty interest protected by the Due Process Clause.” Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
The Constitution requires no
procedure at all, and the failure of state prison officials to follow their own
procedures does not, of itself, violate the Constitution. Maust v. Headley, 959
F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th
Cir. 1982). Furthermore, a cause of action does not arise where a plaintiff files a
grievance and simply disagrees with the outcome. See Conyers v. Abitz, 416 F.3d
580, 586 (7th Cir. 2005). Under the circumstances, Count 2 shall be dismissed
with prejudice against all of the defendants.
Count 3
Plaintiff also asserts a negligence claim against the defendants. However, a
defendant can never be held liable under § 1983 for negligence.
Daniels v.
Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir.
1995). As the Seventh Circuit has explained, “medical malpractice in the form of
an incorrect diagnosis or improper treatment does not state an Eighth
Amendment claim.” Gutierrez, 111 F.3d at 1374. See also Snipes v. DeTella, 95
F.3d 586, 590 (7th Cir. 1996) (“Mere negligence or even gross negligence does not
constitute deliberate indifference.”).
But where a district court has original jurisdiction over a civil action such
as a § 1983 claim, it also has supplemental jurisdiction over related state law
claims pursuant to 28 U.S.C. § 1367(a), if the state claims “derive from a common
13
nucleus of operative fact” with the original federal claims. Wisconsin v. Ho-Chunk
Nation, 512 F.3d 921, 936 (7th Cir. 2008).
“A loose factual connection is
generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008)
(citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
Although this Court has supplemental jurisdiction pursuant to § 1367(a) over the
state law negligence claim, the Court’s analysis does not end there.
Under Illinois law, a plaintiff “[i]n any action, whether in tort, contract or
otherwise, in which the plaintiff seeks damages for injuries or death by reason of
medical, hospital, or other healing art malpractice,” must file an affidavit along
with the complaint, declaring one of the following: (1) that the affiant has
consulted and reviewed the facts of the case with a qualified health professional
who has reviewed the claim and made a written report that the claim is
reasonable and meritorious (and the written report must be attached to the
affidavit); (2) that the affiant was unable to obtain such a consultation before the
expiration of the statute of limitations, and affiant has not previously voluntarily
dismissed an action based on the same claim (and in this case, the required
written report shall be filed within 90 days after the filing of the complaint); or (3)
that the plaintiff has made a request for records but the respondent has not
complied within 60 days of receipt of the request (and in this case the written
report shall be filed within 90 days of receipt of the records). See 735 ILL. COMP.
14
STAT. §5/2-622(a). 21
A separate affidavit and report shall be filed as to each
defendant. See 735 ILL. COMP. STAT. § 5/2-622(b).
Failure to file the required certificate/affidavit is grounds for dismissal of
the claim.
See 735 ILL. COMP. STAT. § 5/2-622(g); Sherrod, 223 F.3d at 613.
However, whether such dismissal should be with or without prejudice is up to the
sound discretion of the court. Sherrod, 223 F.3d at 614. “Illinois courts have
held that when a plaintiff fails to attach a certificate and report, then ‘a sound
exercise of discretion mandates that [the plaintiff] be at least afforded an
opportunity to amend her complaint to comply with section 2-622 before her
action is dismissed with prejudice.’” Id.; see also Chapman v. Chandra, No. 06cv-651-MJR, 2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).
In the instant case, Plaintiff failed to file the necessary affidavit/certificate
and report. Therefore, the claim in Count 3 shall be dismissed. However, the
dismissal shall be without prejudice at this time, and Plaintiff will be allowed 60
days (on or before May 22, 2017) to file the required affidavit if he wishes to
revive the claim and pursue it in this action. Should Plaintiff fail to timely file the
required affidavits, the dismissal of Count 3 shall become a dismissal with
prejudice upon the expiration of this deadline. See FED. R. CIV. P. 41(b).
2
The August 25, 2005, amendments to a prior version of this statute were held to be
unconstitutional in 2010. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010)
(Holding P.A. 94-677 to be unconstitutional in its entirety). After Lebron, the previous
version of the statute continued in effect. See Hahn v. Walsh, 686 F. Supp. 2d 829, 832
n.1 (C.D. Ill. 2010). The Illinois legislature re-enacted and amended 735 ILL. COMP. STAT.
§5/2-622 effective January 18, 2013 (P.A. 97-1145), to remove any question as to the
validity of this section. See notes on Validity of 735 ILL. COMP. STAT. § 5/2-622
(West 2013).
15
Claims Against Non-Parties
Any claim that Plaintiff intended to assert in the Complaint against a nonparty is considered dismissed without prejudice from this action.
In the
Complaint, Plaintiff referred to a prison nurse, outside hearing specialist, outside
physician’s assistant, and outside doctor.
Plaintiff did not name any of these
individuals as defendants in the case caption, even in generic terms. (Doc. 1, p.
1). When parties are not listed in the caption, this Court will not treat them as
defendants, and any claims against them should be considered dismissed without
prejudice. See FED. R. CIV. P. 10(a) (noting that the title of the complaint “must
name all the parties”); Myles v. United States, 416 F.3d 551, 551-52 (7th Cir.
2005) (holding that to be properly considered a party, a defendant must be
“specif[ied] in the caption”). Accordingly, all claims against these individuals are
considered dismissed without prejudice.
Interim Relief
In his Complaint, Plaintiff seeks injunctive relief.
However, he did not
request any sort of urgent relief related to his medical needs, such as a temporary
restraining order (“TRO”) or a preliminary injunction pursuant to Rule 65(a) and
(b) of the Federal Rules of Civil Procedure. Plaintiff also did not file a separate
motion seeking this relief.
If emergency relief becomes necessary during the
pending action, Plaintiff may file a separate Motion for TRO and/or Preliminary
Injunction that is consistent with the requirements set forth under Rule 65(a) or
(b).
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Pending Motion
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) shall be REFERRED
to a United States Magistrate Judge for a decision.
Disposition
IT IS HEREBY ORDERED that COUNT 1 is DISMISSED without
prejudice against Defendants UNKNOWN PARTY/UTILIZATION MANAGEMENT
and WEXFORD HEALTH SOURCES, INC. for failure to state a claim upon which
relief may be granted.
IT IS ORDERED that COUNT 2 is DISMISSED with prejudice for failure
to state a claim upon which relief may be granted.
IT IS ALSO ORDERED that COUNT 3 is DISMISSED without prejudice
for failure to state a claim upon which relief may be granted. If Plaintiff wishes to
revive this claim, he is hereby ORDERED to file the required affidavits within 60
days (on or before May 22, 2017). Should Plaintiff fail to timely file the required
affidavits, the dismissal of Count 3 will become a dismissal with prejudice. See
735 ILL. COMP. STAT. § 5/2-622; FED. R. CIV. P. 41(b).
IT IS ORDERED that COUNT 1 is subject to further review against
Defendants
CAMPANELLA,
LUCE,
GEORGE,
APOSTOL,
VINEYARD,
BUCKMEIER, CAMPBELL, and PARISH. As to COUNT 1, the Clerk of Court
shall prepare for Defendants CAMPANELLA, LUCE, GEORGE, APOSTOL,
VINEYARD, BUCKMEIER, CAMPBELL, and PARISH: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of
17
Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
Complaint (Doc. 1), 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
18
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 a United
States Magistrate Judge for further pre-trial proceedings, including a decision on
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3).
Further, this entire matter shall be REFERRED to a 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 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
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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.
Signed this 23rd day of March, 2017.
Digitally signed by
Judge David R. Herndon
Date: 2017.03.23
14:45:41 -05'00'
United States District Judge
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