Youngblood v. Illinois Department of Corrections et al
Filing
8
MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 8/17/2017. (jaj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TIMOTHY LORNE YOUNGBLOOD,
#B02004,
Plaintiff,
vs.
ILLINOIS DEPT. OF CORRECTIONS,
KIM BUTLER,
GUY D. PIERCE,
KURTIS T. HUNTER,
DR. JOHN TROST,
JOHN DOE #2,
JOHN DOE #1,
JOHN R. BALDWIN, and
WEXFORD HEALTH SOURCES, INC.,
Defendants.
Case No. 17-cv-807-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Timothy Youngblood, an inmate who is currently incarcerated at
Menard Correctional Center, brings this civil rights action pursuant to 42 U.S.C.
§ 1983.
Plaintiff claims that he was denied adequate medical care for two
inguinal hernias over the course of four years at Sangamon County Jail (2013-14),
Shawnee Correctional Center (2014-16), Pontiac Correctional Center (2016), and
Menard Correctional Center (2016-17).
(Doc. 1, pp. 1-11).
The inadequate
medical care allegedly exacerbated his condition and resulted in unnecessary pain
and emotional distress, in violation of the Eighth Amendment and Illinois law. Id.
1
In connection with these claims, Plaintiff names the following defendants:
Wexford Health Sources, Inc. (“Wexford”), the Illinois Department of Corrections
(“IDOC”), John Baldwin (IDOC’s Director), Kim Butler (Menard’s warden), Doctor
Trost (Menard’s medical director), Guy Pierce (Pontiac’s warden), John Doe #1
(Pontiac’s medical director), Kurtis Hunter (Shawnee’s warden), and John Doe #2
(Shawnee’s medical director). (Doc. 1, p. 2). Plaintiff seeks monetary damages
and injunctive relief against them. (Doc. 1, pp. 1, 11).
The Complaint is now subject to preliminary review 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.
Twombly, 550 U.S. 544, 570 (2007).
The claim of entitlement to relief must
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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 screening under this standard.
The Complaint
According to the Complaint, Plaintiff has been denied adequate medical
care for two inguinal hernias for the past four years. (Doc. 1, p. 1). He was
diagnosed with one hernia in April 2013 and another in 2016. (Doc. 1, p. 3; Doc.
1-1, pp. 8-9). Other than pain relievers and fiber supplements, however, Plaintiff
was denied treatment for the hernia(s) at Sangamon County Jail (“Jail”) where he
was housed until January 2014, at Shawnee Correctional Center (“Shawnee”)
where he was housed until February 2016, at Pontiac Correctional Center
(“Pontiac”) where he was housed until July 2016, and at Menard Correctional
Center (“Menard”) thereafter. (Doc. 1, pp. 3-4).
The first hernia became incarcerated and necessitated emergency surgery
on April 5, 2017. (Doc. 1, p. 4; Doc. 1-1, pp. 17-25). This was five months after
Wexford authorized surgery on November 4, 2016, based on the fact that the
hernia was “double fist size” and not reducible.
(Doc. 1-1, p. 16).
Plaintiff
developed a second inguinal hernia, which he attributes to the delay in repairing
the first. (Doc. 1, p. 4). Although his surgeon noted that the second hernia was
worse than he thought, it has not yet been repaired. Id. Plaintiff worries that he
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will die of gangrene without surgery. Id. However, he does not allege that any
medical professional has recommended surgery on it. Id.
Plaintiff claims that the delay in repairing both hernias amounts to cruel
and unusual punishment in violation of the Eighth Amendment and intentional
infliction of emotional distress under Illinois state law. He blames the delay on a
policy, custom, or widespread practice espoused by Wexford and instituted by
IDOC Director Baldwin, which “simply does not consider the patient’s level of
pain as a factor” when assessing the need for surgery. (Doc. 1, pp. 3-5). He also
cites other “problematic overarching policies” that limit “the resources and staff
necessary to adequately treat inmates’ serious medical conditions.” (Doc. 1, pp.
3-4). According to the Complaint, a prisoner who has a “painful though reducible
hernia[ ]” may have to endure “years of intermittent hernia pain before the hernia
becomes strangulated or incarcerated.”
(Doc. 1, p. 5).
Only then is surgery
authorized. (Doc. 1, pp. 4-5).
Plaintiff maintains that the IDOC and Director Baldwin learned of his
hernia(s) and denial of medical care in “numerous grievances” tendered to
Director Baldwin and Menard officials, including letters dated March 3, 2016,1
May 15, 2016,2 and January 26, 2017.3
1
(Doc. 1, p. 5).
However, Director
Plaintiff filed this document with the Complaint. (Doc. 1-1, pp. 1-2). It is a grievance
that he prepared while incarcerated at Pontiac to complain about the denial of medical
care at Shawnee. Id. The grievance was sent directly to the Administrative Review Board
and was not signed by any of the defendants. Id.
2
Plaintiff did not file this document with his Complaint or describe it in any detail. (See
Docs. 1, 1-1).
3
Plaintiff filed this document with the Complaint. (Doc. 1-1, p. 7). It is a response from
the IDOC to two of Plaintiff’s grievances (i.e., dated May 15 and August 23, 2016). Id.
4
Baldwin “took no action to ensure that [Plaintiff] received adequate medical care.”
(Doc. 1, p. 6).
Kim Butler (Menard’s warden) and Guy Pierce (Pontiac’s warden) allegedly
learned of Plaintiff’s serious medical needs in grievances and letters tendered to
them on May 15, 2016, and January 26, 2017. (Doc. 1, p. 6). These defendants
also took no action to ensure that Plaintiff received adequate medical care. Id.
Plaintiff allegedly asked Doctor Trost (Menard’s medical director) for
medical care, including surgery, after informing the doctor that he had been
routinely denied treatment for his hernia(s). (Doc. 1, pp. 7-8). Doctor Trost also
learned about the denial of proper medical care in the grievances and letters
dated May 15, 2016, and January 26, 2017. Id. Even so, the doctor failed to
schedule surgery in a timely manner or ensure that Plaintiff received emergency
treatment. Id.
Plaintiff includes several other general allegations.
(Doc. 1, pp. 8-10).
Oddly, these allegations include blank spaces where defendants’ names should
appear, but no names are inserted. Id. He generally alleges that the defendants
“ignored his requests for emergency medical surgery for his inguinal hernias.”
(Doc. 1, p. 8).
He further alleges that they failed to “adequately address” his
numerous complaints of pain and suffering.
Id.
Finally, he alleges that their
conduct was “extreme and outrageous,” causing severe emotional distress. (Doc.
1, pp. 9-11).
The response indicates that the issue is “moot” because Plaintiff’s surgery “will be
scheduled.” Id. Director Baldwin signed the response. Id.
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Plaintiff seeks monetary damages against the defendants. (Doc. 1, p. 11).
In addition, he requests injunctive relief that includes “[s]ufficient and timely
medical surgery to fully, adequately and permanently treat [his] serious medical
conditions, including but not limited to inguinal hernias.” Id.
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 the Complaint into
the following enumerated counts:
Count 1 -
Defendants exhibited deliberate indifference to Plaintiff’s
serious medical needs in violation of the Eighth
Amendment when they delayed or denied treatment and
surgery for his two inguinal hernias.
Count 2 -
Defendants are liable under Illinois state law for the
intentional infliction of emotional distress arising from
their delay in treating Plaintiff’s inguinal hernias.
The parties and the Court will use these designations in all future pleadings and
orders, unless otherwise directed by a judicial officer of this Court.
The
designation of these claims does not constitute an opinion regarding the merits.
Severance
As part of screening, district courts are strongly encouraged to exercise
discretion and sever unrelated claims against different defendants into separate
suits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The Seventh
Circuit Court of Appeals has warned district courts not to allow inmates “to flout
the rules for joining claims and defendants, see FED. R. CIV. P. 18, 20, or to
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circumvent the Prison Litigation Reform Act’s fee requirements by combining
multiple lawsuits into a single complaint.” Owens v. Godinez, 860 F.3d 434, 436
(7th Cir. 2017). See also Wheeler v. Talbot, -- F. App’x --, 2017 WL 2417889 (7th
Cir. 2017) (district court should have severed unrelated and improperly joined
claims or dismissed one of them).
Consistent with Seventh Circuit precedent, this Court has considered
whether the claims arising at Sangamon County Jail,4 Shawnee, Pontiac, and
Menard are properly joined. At first glance, it appears that severance may be
appropriate. Plaintiff asserts claims against officials at three prisons for conduct
that spans four years.
However, he names Wexford, the IDOC, and Director
Baldwin in connection with all of his constitutional claims, and he asserts the
same two claims against officials at each prison. In addition, Plaintiff attributes
the constitutional deprivations at all three institutions to the same policy, custom,
or practice of excluding pain when assessing the need for hernia surgery. Given
that there are common defendants involved in virtually identical claims arising at
each prison, the Court declines to sever any claims in the Complaint at this time.
It is also worth noting that the only surviving claims pertain to Plaintiff’s
care at Menard. Should Plaintiff amend his complaint at any time during the
pending action and include unrelated claims against different defendants therein,
he is WARNED that all unrelated claims remain subject to severance into one or
Although he mentions the denial of medical care for his first hernia at Sangamon County
Jail in 2013-14, Plaintiff names no officials from the Jail as defendants. Any claims
arising from his detention at the Jail are therefore considered dismissed without
prejudice from this action.
4
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more separate suits and the assessment of a filing fee for each newly severed case.
Count 1
The Eighth Amendment prohibits the cruel and unusual punishment of
prisoners. Estelle v. Gamble, 428 U.S. 97, 104 (1976). The denial of medical
care may support an Eighth Amendment claim. Id.; Farmer v. Brennan, 511
U.S. 825, 828 (1994). To state a claim, a plaintiff must show that he suffered
from a sufficiently serious medical need, which is an objective standard. Id. He
must also demonstrate that the defendant responded with deliberate indifference,
which is a subjective standard. Id.
The Seventh Circuit Court of Appeals has frequently recognized hernias as
a serious medical condition. See, e.g., Heard v. Tilden, 809 F.3d 974 (7th Cir.
2016); Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011); Johnson v.
Doughty, 433 F.3d 1001, 1012-14 (7th Cir. 2006); Williams v. Prison Health
Services, Inc., 167 F. App’x 555 (2006); Heard v. Sheahan, 253 F.3d 316, 31718 (7th Cir. 2001); Chapman v. Keltner, 241 F.3d 842, 846-47 (7th Cir. 2001).
Plaintiff’s two inguinal hernias -- one of which was the size of two fists and not
reducible -- are sufficiently serious to satisfy the objective component of this claim
at screening.
Id.
medical condition.
Plaintiff’s pain also presents a separate objectively serious
See Gonzalez, 663 F.3d at 314 (chronic pain presents
“separate objectively serious condition”); Grieveson v. Anderson, 538 F.3d 763,
779 (7th Cir. 2008); Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The subjective component of this claim requires Plaintiff to demonstrate
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that each defendant exhibited deliberate indifference to his hernias. Deliberate
indifference is shown when a defendant knows of and disregards a serious risk of
harm.
Riley v. Kolitwenzew, 640 F. App’x 505, 508 (7th Cir. 2016) (citing
Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012); Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011)).
A defendant’s “blatantly
inappropriate” response to frequent complaints of pain associated with a hernia
supports a deliberate indifference claim. Gonzalez, 663 F.3d at 314 (citations
omitted).
Likewise, the decision to stall surgery also states a claim, where it
results in prolonged pain. Heard, 809 F.3d at 981 (citing Smith v. Knox Cty.
Jail, 666 F.3d 1037, 1040 (7th Cir. 2012) (explaining that “[e]ven a few days’
delay in addressing a severely painful but readily treatable condition suffices to
state a claim of deliberate indifference.”)).
The allegations suggest that Doctor Trost was deliberately indifferent to
Plaintiff under this standard.
Doctor Trost was allegedly responsible for
Plaintiff’s medical care at Menard in 2016-17.
He was aware that Plaintiff’s
hernias remained untreated but failed to ensure proper treatment of the hernias
or associated pain.
Intentionally disregarding “a known, objectively serious
medical condition that poses an excessive risk to an inmate’s health” gives rise to
liability under the Eighth Amendment. Gonzalez, 663 F.3d 311 (7th Cir. 2011).
Count 1 shall proceed against Doctor Trost.
The exhibits also indicate that Director Baldwin received written notice of
Plaintiff’s untreated hernia in January 2017. (Doc. 1-1, p. 7). He agreed that the
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issue was “moot” because hernia surgery was going to be scheduled in the future.
Id. At the time, no date was set for surgery, and Plaintiff did not actually undergo
surgery until the hernia became incarcerated and emergency surgery was
performed on April 5, 2017. (Doc. 1, p. 4; Doc. 1-1, pp. 17-25). It is difficult to
understand how the issue was “moot” in January 2017 under these facts.
Whether Director Baldwin’s decision to sign off on the denial of Plaintiff’s
grievances amounted to deliberate indifference, as opposed to mere negligence,
remains to be seen.
At the early stage of proceedings, however, the Seventh
Circuit has indicated that district courts may infer that prison administrators in
this context “do bear some responsibility for the alleged misconduct.” Antonelli v.
Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996) (internal citation omitted).
Further, the allegations suggest that Director Baldwin, acting on behalf of
the IDOC, instituted a policy espoused by Wexford of denying medical care to
inmates with painful but reducible hernias. Plaintiff maintains that this policy of
excluding pain from the assessment for surgery in hernia patients actually caused
the deprivation of his constitutional rights. Count 1 is subject to further review
against Director Baldwin, in his individual capacity, based on his involvement in
denying Plaintiff’s grievances and for his role in instituting the policy that allegedly
caused the denial or delay of Plaintiff’s treatment. See Heard, 809 F.3d at 981
(“involvement as a policy maker does not insulate [official] from personal liability
for his own actions, even when making and enforcing policy”) (citing Hafer v.
Melo, 502 U.S. 21, 27 (1991) (rejecting view that “state officials may not be held
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liable in their personal capacity for actions they take in their official capacity”);
Duane v. Lane, 959 F.2d 673, 675 n. 1 (7th Cir. 1992)).
Count 1 shall also proceed against Wexford.
In the case of a private
medical corporation, like Wexford, deliberate indifference is shown when a policy,
custom, or widespread practice attributable to the corporation caused the
violation. Woodward v. Correctional Med. Servs. of Ill., Inc., 368 F.3d 917, 927
(7th Cir. 2004) (A private corporation may be liable under § 1983 for
constitutional violations of its employees if an official corporate policy caused the
violation.).
See also Cotts v. Osafo, 692 F.3d 564 (7th Cir. 2012).
Plaintiff
alleges that Wexford adopted the policy that caused a delay in his treatment.5 For
this reason, this claim is subject to further review against Wexford.
The Court will not allow Count 1 to proceed against the IDOC or attribute
policy decisions to this defendant. Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 (1989) (holding that “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983”); Wagoner v. Lemmon, 778 F.3d 586, 592
(7th Cir. 2015); Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 926
(7th Cir. 2012).
Count 1 is therefore considered dismissed without prejudice
against the IDOC.
Further, this claim shall be dismissed against all other defendants without
prejudice, including Warden Hunter, Warden Pierce, Warden Butler, John Doe
5
The Complaint vaguely alludes to other “overarching policies” created by Wexford that
limited staffing and resources available to treat inmates. However, Plaintiff does not
plausibly allege that any of the policies resulted in the denial or delay in his treatment.
The only policy claim at issue, then, is whether the exclusion of pain from surgical
assessment of hernia patients resulted in the constitutional deprivation at issue.
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#1, and John Doe #2.
The allegations offered in support of the Eighth
Amendment claim against these defendants are thin.
Time and again, the
Complaint includes blank spaces where the names of defendants should be
inserted. (Doc. 1, pp. 8-10). The Complaint appears to be incomplete.
In an effort to state a claim against them, Plaintiff refers to three
communications that allegedly put them on notice of his need for medical care,
i.e., letters or grievances dated March 3, 2016, May 15, 2016, and January 26,
2017.
However, Plaintiff was no longer housed at Shawnee at the time he
prepared any of these communications.
He was housed at Pontiac until July
2016 and then transferred to Menard. Therefore, the communications certainly
do not give rise to a claim against the Shawnee officials.
It appears that the
communications were also insufficient to put Pontiac officials on notice of
Plaintiff’s need for medical treatment. Although Plaintiff prepared the grievance
dated March 3, 2016, while he was still incarcerated at Pontiac, he did not claim
that he was being denied medical care there. He complained about the denial of
care at Shawnee and sent his complaint directly to the ARB. There is also no
indication that Menard officials received or were aware of this complaint.
The communication dated May 15, 2016, is not included with the
Complaint or described in any detail therein. The Court is therefore unable to
determine whether it supports Plaintiff’s claims against any defendants.
The
response to his grievances dated January 26, 2017, mentions the May 15th
grievance in passing when denying it as “moot.” Still, the Court lacks sufficient
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information about the content of the grievance to assess potential liability on the
part of any of these defendants.
Under the circumstances, the Court cannot rely on either the March 3rd or
May 15th communication when assessing what these defendants knew or whether
they were personally involved in the denial of medical care for Plaintiff’s hernia.
At most, the January 26, 2017, communication supports a claim against Director
Baldwin.
The Complaint otherwise offers insufficient allegations of deliberate
indifference to support a claim under Count 1 against Warden Hunter, Warden
Pierce, Warden Butler, John Doe #1, and John Doe #2.
With that said, Menard’s warden is properly named as a defendant because
Plaintiff seeks injunctive relief. Gonzalez, 663 F.3d at 315. However, Warden
Kimberly Butler has been replaced by Acting Warden Alex Jones. Therefore, the
Court will substitute Acting Warden Alex Jones as a defendant, given that he or
she would be responsible for ensuring that any injunctive relief is carried out. Id.
(citing Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989)).
In summary, Count 1 shall proceed against Doctor Trost, Director Baldwin,
and Wexford. This claim shall be dismissed without prejudice against all other
defendants for failure to state a claim upon which relief may be granted. Because
Plaintiff seeks injunctive relief, Acting Warden Alex Jones shall be named as a
defendant, in his or her official capacity and for the sole purpose of carrying out
any injunctive relief that is ordered. Id.
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Count 2
Plaintiff also seeks to pursue a state law claim against the defendants for
intentional infliction of emotional distress.
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), so long
as the state claims “derive from a common 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)). The state law claim arises
from the same facts as the federal constitutional claim. Accordingly, this Court
has supplemental jurisdiction over it.
To state a claim for intentional infliction of emotional distress under Illinois
law, a plaintiff must demonstrate that the defendants intentionally or recklessly
engaged in “extreme and outrageous conduct” that resulted in severe emotional
distress.
Somberger v. City of Knoxville, Ill., 434 F.3d 1006, 1030 (7th Cir.
2006); see Lopez v. City of Chi., 464 F.3d 711, 720 (7th Cir. 2006). The cause of
action has three components: (1) the conduct involved must be truly extreme and
outrageous; (2) the actor must either intend that his conduct inflict severe
emotional distress, or know that there is at least a high probability that his
conduct will cause severe emotional distress; and (3) the conduct must in fact
cause severe emotional distress. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill.
14
1988). To be actionable, the defendant’s conduct “must go beyond all bounds of
decency and be considered intolerable in a civilized community.”
Honaker v.
Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing Kolegas v. Heftel Broad. Corp.,
607 N.E.2d 201, 211 (Ill. 1992); Campbell v. A.C. Equip. Servs. Corp., Inc., 610
N.E.2d 745, 749 (Ill. App. 1993)). Whether conduct is extreme and outrageous is
judged on an objective standard, based on the facts of the particular case.
Honaker, 256 F.3d at 490.
The allegations in the Complaint do not support a claim for intentional
infliction of emotional distress against the defendants.
Plaintiff includes no
allegations which suggest that the defendants’ conduct was truly extreme or
outrageous or that it was intended to cause Plaintiff distress, beyond bald
assertions to that effect. Further, Plaintiff fails to allege that he actually suffered
severe emotional distress in anything other than conclusory terms. Count 2 shall
be dismissed without prejudice against all of the defendants.
Interim Relief
Plaintiff mentions injunctive relief in the opening paragraph of his
Complaint. (Doc. 1, p. 1). However, he does not seek a temporary restraining
order (“TRO”) or a preliminary injunction.
(Docs. 1, 1-1).
He also does not
mention Rule 65(a) or (b) of the Federal Rules of Civil Procedure, which governs
both. Id.
In his request for relief, Plaintiff generally asks that the defendants be
ordered to provide “[s]ufficient and timely medical surgery to fully, adequately and
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permanently treat Mr. Youngblood’s serious medical conditions, including but not
limited to inguinal hernias of the groin.” (Doc. 1, p. 11).
Even there, Plaintiff
does not mention a request for immediate surgery on his second hernia. (Docs.
1, 1-1). He also does not indicate that a medical professional has recommended
it. Id. Further, although he complains of intermittent pain, Plaintiff does not
allege that he has recently requested or been denied treatment for pain. Id. In
light of these considerations, the Court does not construe his request for
“injunctive relief” as a request for immediate relief under Rule 65.
With that said, the Court takes Plaintiff’s complaints and allegations of pain
very seriously. If Plaintiff believes that urgent relief is necessary and has been
denied by the defendants, he may file a separate “Motion for TRO and/or
Preliminary Injunction Pursuant to Rule 65” in this case at any time during the
pending action. The motion should describe the exact relief he seeks and the
reasons for his request.
Pending Motion
Plaintiff filed a Motion for Appointment of Counsel (Doc. 3), which shall be
REFERRED to a United States Magistrate Judge with direction to appoint counsel
as soon as possible to assist plaintiff. The petitioner has made a good faith effort
to obtain counsel on his own and although his complaint is respectable, as
demonstrated by this ruling, he lacks sufficient skill to represent himself,
particularly given the medical complexities of the issues at bar.
Disposition
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The Clerk is DIRECTED to ADD Acting Warden Alex Jones (in his or her
official capacity only) as a defendant in CM/ECF. This defendant is named herein
for the sole purpose of carrying out any injunctive relief that is ordered.
IT IS HEREBY ORDERED that COUNT 1 is subject to further review
against Defendants WEXFORD HEALTH SOURCES, INC., JOHN BALDWIN,
and DOCTOR JOHN TROST.
This claim is DISMISSED without prejudice
against all other defendants for failure to state a claim upon which relief may be
granted.
IT IS ORDERED that COUNT 2 is DISMISSED without prejudice against
all of the defendants for failure to state a claim upon which relief may be granted.
IT
IS
ORDERED
that
Defendants
ILLINOIS
DEPARTMENT
OF
CORRECTIONS, GUY PIERCE, KURTIS HUNTER, KIMBERLY BUTLER, JOHN
DOE #1, and JOHN DOE #2 are DISMISSED without prejudice from this action
because the Complaint fails to state a claim against these defendants for relief.
The Clerk is directed to TERMINATE these defendants as parties in CM/ECF.
With regard to COUNT 1, the Clerk of Court shall prepare for Defendants
WEXFORD HEALTH SOURCES, INC., JOHN BALDWIN, DOCTOR JOHN
TROST, and ALEX JONES (official capacity only): (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 (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
17
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.
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 a United
States Magistrate Judge for further pre- proceedings, including appointment 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
18
the costs, even though his application to proceed in forma pauperis was 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: August 17, 2017
Judge Herndon
2017.08.17
07:29:54 -05'00'
United States District Judge
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