Munson v. Overall et al

Filing 12

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge David R. Herndon on 2/1/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES MUNSON,
#N95249,
Plaintiff,
vs.
DR. L. OVERALL,
DR. HENDERSON,
DR. NEWBOLD,
WEXFORD HEALTH SOURCES,
INC.,
and DR. LITHERLAND,
Defendants.

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Case No. 17 cv–1277 DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff James Munson, an inmate in Lawrence Correctional Center, brings
this action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional
rights that allegedly occurred at Menard Correctional Center (“Menard”) and
Lawrence Correctional Center (“Lawrence”). In his Complaint, Plaintiff claims the
defendants have been deliberately indifferent to his serious medical issues in
violation of the Eighth Amendment. (Doc. 1). This case is now before the Court
for a preliminary review of the Complaint 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
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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 Complaint and any supporting exhibits, the
Court finds it appropriate to allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: these
allegations span from “on or around November of 2010” and cover “continual
ongoing matter[s].” (Doc. 1, p. 7). While Plaintiff was in segregation in Menard,
he saw Dr. Overall for various dental matters, including for a tooth that had
become sensitive due to Plaintiff’s need for dentures. Id. Dr. Overall told Plaintiff
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that his tooth had become sensitive because he needed a new partial plate
because his was “worn down.” Id. Dr. Overall then put a desensitizing gel on the
tooth and had Plaintiff fitted for a new partial plate/dentures. Id. Plaintiff saw Dr.
Overall at least two more times. Id. On July 23, 2012, at his two-year exam,
Plaintiff asked Dr. Overall for oral gel or whatever she had put on his tooth
before.

Id.

Dr. Overall then told Plaintiff that they “don’t do that anymore”

because “it cost too much and we was told to tell you all you have to buy
sensodyne from commissary.” Id.
When Plaintiff asked Dr. Overall about the partial plate/denture he was
fitted for, Dr. Overall told Plaintiff that Wexford would not pay for it. Id. Plaintiff
later discovered that in May of 2011, his “partial plate/denture form was
destroyed per Dr. Overall’s order or per orders of someone higher up, the Medical
Director or by orders of Wexford.”

Id.

Wexford has a “policy, practice, and

financial incentive to save money at the expense of inmates [sic] well-being and
constitutional rights by no longer providing a sensitive gel and not paying for
needed dentures” even after “their employee has said that [Plaintiff needs them]”
and had him fitted for them. Id.
Around January 2014, Plaintiff broke or chipped his tooth on his right
upper side. Id. Plaintiff wrote request slips to Dental Health Care to see the
dentist for months because he was in “such pain.”

Id.

Plaintiff even asked

around for pain pills. Id. It is the policy and practice of Wexford, carried out by
its dentist employees, “to have inmates wait weeks or even months before they are

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seen by a dentist or given treatment after many requests [have] been made.” Id.
Around April 22, 2014, the pain was so unbearable that the lieutenant had
Plaintiff walked over to the Health Care Unit. Id. Plaintiff saw Dr. Henderson and
informed him of his painful situation, which included pain from the tooth next to
his broken tooth, which was also paining him, and a sensitive tooth on his left
side.

Id.

Plaintiff requested something for his tooth to protect it, such as

desensitizing gel. Id. Plaintiff also told Dr. Henderson that he needed another
partial plate/denture because it was painful to eat with the one he had, and it was
worn down, causing his tooth to be sensitive according to Dr. Overall. (Doc 1, p.
8).
Plaintiff reluctantly agreed to let Dr. Henderson pull his tooth because Dr.
Henderson told Plaintiff he did not think it could be saved.

Id. Plaintiff felt

differently “because the tooth was only a little chipped/broken.”

Id.

Dr.

Henderson told Plaintiff that though the tooth on his left side is sensitive, he could
not give him anything for it because “it cost too much.” Id. He told Plaintiff that
he should instead buy sensitive toothpaste from the commissary. Id. Plaintiff
told Dr. Henderson that he does buy that toothpaste when he is able but that it
does not really help. Id. Dr. Henderson then offered to extract Plaintiff’s sensitive
tooth, noting that it was still good. Id. Plaintiff refused the offer and requested
that Henderson put gel on it instead because the tooth was “sensitive to hot, cold,
water, and air.” Id. Dr. Henderson denied the request. Id.
Plaintiff also asked Dr. Henderson about the partial plate he was fitted for.

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Id. Dr. Henderson told him that he would not be getting it because he did not
need it, and he needed “to have (3) three teeth missing before [he could] get a
plate.”

Id.

Plaintiff tried to explain that he needed one because his current

situation was causing him pain, but Dr. Henderson did not change his answer.

Id. Plaintiff then asked Dr. Henderson if he would see why the tooth on Plaintiff’s
right side was causing him pain. Id. Dr. Henderson told him that it needed to be
filled or extracted, and when Plaintiff asked him to fix it, Henderson replied: “No!
Put another request slip in and if it’s still giving you problems I’ll call you back
over to look at it then.” Id. Plaintiff asked him why he could not fix it then, and
when Dr. Henderson offered to extract it, Plaintiff turned him down. Id. Dr.
Henderson also “did do some filing down on the other tooth that needed fixing”
and put Plaintiff down to have his other tooth fixed for a $5.00 co-pay. Id.
On or around May 25, 2014, a letter was written to Dr. Henderson
explaining the dental problems and pain Plaintiff was experiencing from his other
tooth for which he was expecting to be called for treatment. Id. The pain in the
tooth Dr. Henderson refused to fix worsened. Id. Plaintiff’s equilibrium was off,
he was having bouts of dizziness, he could not eat on the right side of his mouth,
he lost weight, and he suffered from severe headaches. Id. Plaintiff’s headaches
and pain were so bad that he had his right eye closed most of the time “because
the tooth pain would shoot up the right side of [his] face giving [him] stern
headaches.”

Id.

Plaintiff was also still in pain because he was not given

desensitizing gel on the left side of his jaw. Id.

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From when he saw Dr. Henderson around April 22, 2014 to around July
18, 2014, Plaintiff was not called to the Health Care Unit by Dr. Henderson. Id.
He was in a lot of pain and continued to self-medicate and buy pain pills from
other inmates. Id. Plaintiff put in two or three requests to see dental per week
during this time. Id. Plaintiff wrote to Dr. Henderson asking to see him, and he
wrote Dental Director Dr. Newbold about the matter. Id. He did not receive a
reply. Id.
On or around August 15, 2014, Plaintiff saw Dr. Henderson for tooth
problems because he was due for a two-year exam. Id. Dr. Henderson was aware
of Plaintiff’s ongoing extreme pain, and when Plaintiff asked him for oral gel to
stop the pain in his sensitive tooth, Dr. Henderson told him that he would need to
buy sensodyne from commissary because he could not give Plaintiff anything to
put on it. (Doc. 1, p. 10). When Plaintiff told him that he did not have money for
the toothpaste, Dr. Henderson told him that he would have to deal with the pain.

Id.
Plaintiff then inquired about the partial plate/denture for which he was
fitted. Id. Dr. Henderson told him that he could not have another plate made,
and that Plaintiff was there to see if he needed a filling or extraction only. Id.
Plaintiff then told Dr. Henderson that he had another tooth missing, putting him
at three, which should qualify him for a new plate under what Dr. Henderson told
him during his last appointment. Id. Dr. Henderson reiterated that Plaintiff was
only there for a filling or extraction, and that he could accept that treatment or

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leave. Id.
Plaintiff told Dr. Henderson to treat his tooth. Id. At 9:27am, once Dr.
Henderson numbed Plaintiff, a Dental Assistant (Sherry Jones) told Plaintiff he
had a legal call at 10:00am. Id. Plaintiff asked Dr. Henderson if he would be
done by 10:00am, but he did not reply. Id. Jones told Plaintiff that if he wanted
to go to his legal call, he could be rescheduled. Id. When Plaintiff asked Dr.
Henderson to reschedule because of his legal call, Dr. Henderson replied: “No!
Sign a refusal.”

Id.

Plaintiff told him that he wanted the treatment, he just

wanted to reschedule it due to his legal call. Id. Dr. Henderson told him that he
would not call Plaintiff back, and if he left, he would be refusing treatment. Id.
Jones told Plaintiff to go on his legal call, and she would make sure he was
rescheduled.

Id.

Plaintiff then asked Dr. Henderson for pain pills, but Dr.

Henderson refused to provide him with any. Id.
On or around September 7, 2014, Plaintiff wrote another letter to Dr.
Henderson begging him for treatment. (Doc. 1, p. 11). Around September 22,
2014, Plaintiff wrote Medical Director Dr. Newbold explaining his situation and
asking him for treatment. Id. As of October 15, 2014, Plaintiff had not received a
reply from either doctor or the dental office. Id. Plaintiff was self-medicating for
months, in severe pain. Id. He could not eat on the right side of his jaw, and he
could barely eat on the left side due to his sensitive tooth. Id. The pain caused
him severe headaches, causing him to keep his right eye closed most of the time.

Id. Plaintiff lost about 25-30 pounds because he could not eat properly and his

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partial/plate denture was causing him pain. Id.
On or around February 6, 2015, the tooth on Plaintiff’s right side was
“treated/filled.” Id. Plaintiff waited from April 22, 2014 to February 6, 2015 for
this treatment.

Id.

Plaintiff still did not receive a partial plate/denture or

treatment for his sensitive tooth on the left side of his jaw. Id. Between May and
August 2016, “a letter was personally given to Dr. Newbold and [Plaintiff] was
seen by him.” Id. The letter explained Plaintiff’s pain situation, addressing his
sensitive tooth, his need for dentures, his bleeding and swollen gums from eating,
and his need for a new partial plate. Id.
In September 2016, Plaintiff was seen by Dr. Newbold and explained his
situation again. Id. Dr. Newbold told Plaintiff that he could not have a partial
plate/denture put in if his tooth is painful. Id. He also told Plaintiff that his tooth
looked good.

Id.

Plaintiff then asked for desensitizing gel or some other

procedure that would numb the pain so the tooth could be saved since it was still
good. Id. Dr. Newbold told Plaintiff that Wexford would not allow him to provide
the tooth gel, and would not allow him to give Plaintiff any procedure other than
extracting the tooth because other procedures would cost too much. Id. Newbold
told Plaintiff that he would give him awhile to think about what he wanted to do.

Id. Dr. Newbold had the authority to refer Plaintiff to an oral surgeon but did not,
nor did he give Plaintiff sensitive gel or another appropriate procedure. Id.
On or around November 15, 2016, Plaintiff sent another letter to Dr.
Newbold, which was also personally placed into Dr. Newbold’s hands on

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November 22, 2016. Id. The letter reminded Dr. Newbold that he told Plaintiff to
write him about his dentures and sensitive tooth.

Id. Plaintiff wrote another

letter on or around December 5, 2016, which he hand delivered to Dr. Newbold’s
office. Id. Around January 3, 2017, Plaintiff wrote an emergency grievance about
the dentures and tooth. Id. Plaintiff wrote five letters begging Wexford to instruct
Dr. Henderson and Dr. Newbold to give Plaintiff proper dental treatment to relieve
him of pain. Id.
On or around January 24, 2017, Plaintiff received a reply from Wexford,
which told him to follow the sick call and grievance procedure to have his medical
needs met. Id. It also stated that “they have qualified professionals to assist with
[Plaintiff’s] medical needs.” Id. Around January 31, 2017, Plaintiff once again
wrote Wexford informing it that he had written Dr. Henderson and Dr. Newbold
many letters in order to get proper treatment, to no avail. Id. He further noted
that he also wrote to Lisa Madigan, informing her that he was in constant pain
and was not receiving proper dental treatment. Id. Plaintiff did not receive a
reply to the second letter he sent to Wexford. Id.
Plaintiff wrote Lisa Madigan, the Attorney General, four letters on in
October, November, and December 2016 and January 2017 explaining to her that
he was denied proper dental treatment by Wexford, IDOC, and Menard medical
staff, and that he was in constant pain. Id. In May of June, Plaintiff received a
letter dated December 23, 2016 from Jeffrey Hutchinson, Warden of Menard,
concerning the letter he sent to Madigan. (Doc. 1, pp. 12-13).

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On February 15, 2017, Plaintiff was transferred from Menard to Lawrence.

Id. Plaintiff saw Dr. Litherland around March 6, 2017. (Doc. 1, p. 13). Plaintiff
informed Dr. Litherland of his sensitive tooth, that he was told he needed new
dentures, that he had bleeding and swollen gums at times, that it hurt to chew his
food, that chewing certain foods cut his gums, making them bleed, that he could
not brush or floss his tooth, and that his inability to chew properly was causing
him digestive problems. Id. Plaintiff requested sensitivity gel to prevent the tooth
from hurting.

Id.

Dr. Litherland examined the tooth and noted that it was

sensitive but told Plaintiff that they do not provide sensitivity gel. Id. He also told
Plaintiff he would need to buy sensodyne from commissary. Id.
Plaintiff told Dr. Litherland that he had written a grievance about his dental
issues in order to get treatment. Id. Dr. Litherland responded that he could not
do anything for Plaintiff because he wrote a grievance, and that he would not do
anything until he read the grievance. Id. He denied Plaintiff’s requests for pain
medication. Id. Plaintiff later put in a request to see Dr. Litherland. (Doc. 1, p.
14). When Plaintiff met with him, they discussed Plaintiff’s sensitive tooth and
dentures. Id. Dr. Litherland told Plaintiff that the only was he could get dentures
would be to have the sensitive tooth extracted. Id. Plaintiff once again asked for
sensitive gel for the tooth, since it would last 6 to 12 months. Id. Dr. Litherland
told Plaintiff that they would not provide the gel. Id. Plaintiff then asked if he
could perform a procedure to take the nerves from the tooth, or refer Plaintiff to
an oral surgeon to see if the tooth could be saved. Id. Dr. Litherland laughed and

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told Plaintiff that Wexford would not pay for that kind of procedure. Id. He went
on to note that it would “be cheaper and better for [Plaintiff] to get it pulled and
[he would] get [his] dentures.” Id.
Plaintiff agreed to let Dr. Litherland pull his sensitive tooth on his advice
because he was not going to get the gel or a procedure to fix it. Id. Plaintiff also
signed a paper under duress because Dr. Litherland told Plaintiff that if he did
not sign the paper, he could not get the tooth fixed. Id. Around August of 2017,
Plaintiff saw Dr. Litherland and was fitted for dentures. Id. Plaintiff told him that
he was having problems chewing his food and with his gums being cut, swollen,
and sore, and that he was having digestive problems because he could not chew
his food properly. Id. Dr. Litherland told Plaintiff to gargle with salt water and
chew his food the best he could to avoid digestive problems. Id.
Around October 10, 2017, Plaintiff received his dentures.

Id. He soon

noticed once he returned to his cell that a tooth was missing, so he put in a
request to see the dentist. Id. Around October 16, 2017, Plaintiff went to the
Health Care Unit to see Dr. Litherland. Id. He told him about the missing tooth,
and Dr. Litherland had him re-fitted for another partial plate/denture. Id. He told
Plaintiff that it might not fit when it came back. Id.
“Wexford Health Sources Inc. [has a] policy and practice [under which]
inmates must have (3) three teeth missing [in order] to receive dentures.” (Doc. 1,
p. 15). This “caused [Plaintiff] to suffer in pain for years.” Id.
Plaintiff requests preliminary injunctive relief as well as monetary damages

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from the defendants. (Doc. 1, p. 19).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 2 counts. 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 counts does not constitute
an opinion regarding their merit.
Count 1 –

Defendants showed deliberate indifference to Plaintiff’s serious
dental needs and pain associated therewith in violation of the
Eighth Amendment.

Count 2 –

Dr. Litherland retaliated against Plaintiff for filing grievances
by refusing Plaintiff requested treatment when Plaintiff told
him he had filed grievances, in violation of the First
Amendment.

As discussed in more detail below, Counts 1 and 2 will be allowed to
proceed past threshold. Any other intended claim that has not been recognized
by the Court is considered dismissed without prejudice as inadequately pleaded
under the Twombly pleading standard.
Count 1 – Medical Needs
A prisoner raising a claim against a prison official for deliberate
indifference

to

the

prisoner’s

serious

medical

needs

must

satisfy

two

requirements. The first requirement compels the prisoner to satisfy an objective
standard: “[T]he deprivation alleged must be, objectively, ‘sufficiently serious[.]’”

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S.
294, 298 (1991)). The Seventh Circuit considers the following to be indications of
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a serious medical need: (1) where failure to treat the condition could “result in
further significant injury or the unnecessary and wanton infliction of pain;” (2)
“[e]xistence of an injury that a reasonable doctor or patient would find important
and worthy of comment or treatment;” (3) “presence of a medical condition that
significantly affects an individual’s daily activities;” or (4) “the existence of chronic
and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The second requirement involves a subjective standard: “[A] prison official
must have a ‘sufficiently culpable state of mind,’” one that amounts to “‘deliberate
indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 297).
Liability

under

the

deliberate-indifference

standard

requires

more

than

negligence, gross negligence or even recklessness; rather, it is satisfied only by
conduct that approaches intentional wrongdoing, i.e., “something less than acts or
omissions for the very purpose of causing harm or with knowledge that harm will
result.” Farmer, 511 U.S. at 835.
Plaintiff has described a condition, continuing pain in his teeth, mouth, and
stomach resulting from tooth sensitivity, a worn partial plate, and an inability to
thoroughly chew food, that meets the “chronic and substantial pain” criteria of

Gutierrez. Plaintiff’s allegations therefore suffice to meet the objective showing
that Plaintiff had a serious medical condition. Plaintiff also alleges that each of
the named individual defendants, Dr. Overall, Dr. Henderson, Dr. Newbold, and
Dr. Litherland, deliberately deprived him of pain medication for his sensitive
tooth, a new partial plate, and various tooth repairs, and because of this, his

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suffering continued and he ultimately had teeth removed that may have otherwise
been salvageable.
Plaintiff blames this denial of medical care on Wexford. The Seventh Circuit
has held that the Monell theory of municipal liability applies in § 1983 claims
brought against private companies that act under color of state law. Whiting v.

Wexford Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016) (citing Shields v.
Ill. Dept. of Corr., 746 F.3d 782 (7th Cir. 2014) (noting every circuit court that
has addressed the issue has extended the Monell standard to private corporations
acting under color of state law). In order to prevail on this claim against Wexford,
Plaintiff must establish that its policies, customs, or practices caused a
constitutional violation. Whiting, 839 F.3d at 664 (citing Thomas v. Cook Cty.

Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2009)). Plaintiff alleges that Wexford
instituted several policies, customs, or practices that resulted in his denial of
proper care, including its policy of requiring an inmate to have three teeth missing
before providing a partial plate/dentures, its policy of extracting teeth instead of
treating them, and its policy of refusing to provide inmates with desensitizing gel.
Further, Plaintiff asserts that each of these policies is a part of Wexford’s practice
of favoring cost savings over proper care.
Based on the foregoing, at this early stage, Count 1 shall proceed against
each of the defendants.
Count 2 – Retaliation
Prison officials may not retaliate against inmates for filing grievances or

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otherwise complaining about their conditions of confinement. See, e.g., Gomez v.

Randle, 680 F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005
(7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000). To state a claim
of retaliation “[a]ll that need be specified is the bare minimum facts necessary to
put the defendant on notice of the claim so that he can file an answer.” Higgs v.

Carver, 286 F.3d 437, 439 (7th Cir. 2002).
Plaintiff asserts that Dr. Litherland retaliated against him for filing a
grievance regarding the lack of medical attention he was getting for his dental
problems. At issue here is whether Plaintiff experienced an adverse action that
would likely deter First Amendment activity in the future, and if the First
Amendment activity was “at least a motivating factor” in Litherland’s decision to
take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009).
This is a question that cannot be resolved at the pleadings stage of this case.
Thus, Plaintiff may proceed on his retaliation claim against Dr. Litherland at this
time.
Severance
In George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007), the Seventh Circuit
explained that a prisoner may not “dodge” the fee payment or three strikes
provisions in the Prison Litigation Reform Act by filing unrelated claims against
different defendants in one lawsuit. Rather, district courts must sever unrelated
claims against different defendants or sets of defendants and require that the
claims be brought in separate lawsuits. Id. In reaching this decision, the Appellate

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Court reminded district courts that FED. R. CIV. P. 20 (governing joinder of

parties) and FED. R. CIV. P. 18 (governing joinder of claims) apply as much to
prisoner cases as they do to any other case. Thus, when a prisoner files a multiclaim, multi-defendant suit, courts must consider whether the parties and claims
are properly joined under these rules.
In the instant case, with respect to Plaintiff’s claims against Wexford,
Overall, Henderson, Newbold, and Litherland, joinder of the parties and claims
appears to be appropriate under Rules 20 and 18 despite the fact that Plaintiff’s
claims span over two prisons. However, if the Court subsequently determines
that a claim against any of these parties has been misjoined, such claim may be
severed at any time. FED. R. CIV. P. 21. Moreover, the Court has “broad power
under Rule 21 to sever even properly-joined claims and [has] equally broad power
under Rule 42(b) to keep the claims together for pretrial but then separate them
for trial.” Committee Comments, Rule 18 (emphasis added). Thus, as the case
progresses, the Court remains open to reconsidering the issue sua sponte or on
motion.
Pending Motions
Plaintiff has filed a Motion for Preliminary Injunction, Motion for Protective
Order (Doc. 2) in which he requests that the Court order the defendants to
“preserve discoverable evidence in the form of dental x-rays of Plaintiff.” (Doc. 2,
p. 1). Because this Motion delves into discovery matters, it is REFERRED to a
United States Magistrate Judge for a decision.

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Because the Motion was

terminated when this case was originally dismissed, the CLERK is DIRECTED to
reinstate it as pending in CM-ECF.
Plaintiff has filed a Motion for Appointment of Counsel (Doc. 3) in this case.
This Motion is REFERRED to a United States Magistrate Judge for a decision.
Because the Motion was terminated when this case was originally dismissed, the
CLERK is DIRECTED to reinstate it as pending in CM-ECF.
Plaintiff has filed a Motion for Service of Process at Government Expense
(Doc. 4), which is hereby GRANTED. Service on the defendants shall be ordered
below.
Plaintiff has filed a Motion to Alter or Amend Judgment (Doc. 11), which is
DENIED as moot. The Order Dismissing Case (Doc. 8) and Judgment (Doc. 9)
were vacated on January 29, 2018. (Doc. 10).
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against
OVERALL, HENDERSON, NEWBOLD, LITHERLAND, and WEXFORD HEALTH
SOURCES, INC.
IT IS FURTHER ORDERED that COUNT 2 shall PROCEED against
LITHERLAND.
IT IS FURTHER ORDERED that as to COUNTS 1 and 2, the Clerk of
Court shall prepare for OVERALL, HENDERSON, NEWBOLD, LITHERLAND,
and WEXFORD HEALTH SOURCES, INC.: (1) Form 5 (Notice of a Lawsuit and
Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
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Summons).

The Clerk is DIRECTED to mail these forms, a copy of the

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
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-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

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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
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).
IT IS SO ORDERED.

Judge Herndon
2018.02.01
10:30:42 -06'00'
____________________________________
U.S. District Judge

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