Todd v. Wexford Health Care, et al

Filing 29

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge David R. Herndon on 8/28/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATHANIEL TODD, # R12865,
Plaintiff,
vs.

Case No. 17-cv-359-DRH

VIPIN K. SHAH,
MICHAEL SCOTT,
FRANCIS F. KAYIRA,
ROBERT R. BLUM,
ANGEL RECTOR,
SHULTZ,
HUGHES,
MIKE L. FISHER, and
WILLIAM HARRIS,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff

Nathaniel

Todd,

currently

incarcerated

at

Pinckneyville

Correctional Center (“Pinckneyville”), filed this pro se civil rights action pursuant
to 42 U.S.C. § 1983 on April 6, 2017. (Doc. 1). Pursuant to this Court’s Order
(Doc. 21), Plaintiff’s Complaint (Doc. 1) was dismissed without prejudice for
failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Plaintiff was
also appointed counsel and ordered to file an amended complaint. (Doc. 21).
Plaintiff filed an Amended Complaint, by and through counsel, on July 31, 2017.
(Doc. 26).

This case is now before the Court for a preliminary review of the

Amended Complaint pursuant to 28 U.S.C. § 1915A, which provides:
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(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.

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).
Upon careful review of the Amended Complaint and any supporting
exhibits, the Court finds it appropriate to allow this case to proceed past the
threshold stage.
Discussion
The Amended Complaint divides this action into 9 counts, outlined below.
The parties and the Court will use these designations in all future pleadings and

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orders, unless otherwise directed by a judicial officer of this Court.
Count 1 –

Dr. Shah showed deliberate indifference to Plaintiff’s serious
medical need (diabetes) in violation of the Eighth Amendment
by, among other things, refusing to order an appropriate
diabetic diet for him.

Count 2 –

Dr. Scott showed deliberate indifference to Plaintiff’s serious
medical need (diabetes) in violation of the Eighth Amendment
by, among other things, refusing to order an appropriate
diabetic diet for him.

Count 3 –

Dr. Kayira showed deliberate indifference to Plaintiff’s serious
medical need (diabetes) in violation of the Eighth Amendment
by, among other things, refusing to order an appropriate
diabetic diet for him.

Count 4 –

Mr. Blum showed deliberate indifference to Plaintiff’s serious
medical need (diabetes) in violation of the Eighth Amendment
by, among other things, refusing to order an appropriate
diabetic diet for him.

Count 5 –

Nurse Rector showed deliberate indifference to Plaintiff’s
serious medical need (diabetes) in violation of the Eighth
Amendment by, among other things, refusing to order an
appropriate diabetic diet for him.

Count 6 –

Nurse Shultz showed deliberate indifference to Plaintiff’s
serious medical need (diabetes) in violation of the Eighth
Amendment by, among other things, refusing to order an
appropriate diabetic diet for him.

Count 7 –

Nurse Hughes showed deliberate indifference to Plaintiff’s
serious medical need (diabetes) in violation of the Eighth
Amendment by, among other things, refusing to order an
appropriate diabetic diet for him.

Count 8 –

Mr. Fisher showed deliberate indifference to Plaintiff’s serious
medical need (diabetes) in violation of the Eighth Amendment
by, among other things, refusing to order an appropriate
diabetic diet for him.

Count 9 –

Mr. Harris showed deliberate indifference to Plaintiff’s serious
medical need (diabetes) in violation of the Eighth Amendment
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by, among other things, refusing to order an appropriate
diabetic diet for him.
Based on the allegations in the Amended Complaint, none of these counts
warrant dismissal at this early stage. For this reason, the Amended Complaint,
along with Counts 1 through 9, will be allowed to proceed past threshold.
Disposition
IT IS HEREBY ORDERED that COUNTS 1 through 9 shall PROCEED
against SHAH, SCOTT, KAYIRA, BLUM, RECTOR, SHULTZ, HUGHES,
FISHER, and HARRIS, respectively.
IT IS FURTHER ORDERED that as to COUNTS 1 through 9, the Clerk of
Court shall prepare for SHAH, SCOTT, KAYIRA, BLUM, RECTOR, SHULTZ,
HUGHES, FISHER, and HARRIS: (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 Amended Complaint,
and this Memorandum and Order to the defendants’ place of employment as
identified by Plaintiff. If one of the defendants 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 the defendant 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
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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, by and through counsel, shall serve upon the 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 the 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.
Defendants are ORDERED to timely file an appropriate responsive pleading
to the Amended 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.

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 Section 1915, Plaintiff will be required to pay the full

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amount of the costs, despite the fact that his application to proceed in forma

pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
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).

Digitally signed by
Judge David R. Herndon
Date: 2017.08.28
12:32:02 -05'00'

IT IS SO ORDERED.
DATED: August 28, 2017

United States District Judge

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