Smith v. Wexford Health Sources Inc et al

Filing 114

ORDER: The attached order rules on all of Plaintiff's pending motions. Plaintiff's Motions for Leave to File Second Amended Complaint and Emergency Mandatory Preliminary Injunction (Docs. 80, 103, 105-107, 109-111) are DENIED. Plaintiff&# 039;s Motions to Compel (Docs. 82 and 84) are GRANTED. To the extent he has not already done so, Defendant shall send Plaintiff his Initial Disclosures on or before June 6, 2024. Plaintiff's Motions for Status (Docs. 85, 95, and 96) ar e GRANTED; the orders entered today provide Plaintiff with an update of his case. Plaintiff's Motions for Recruitment of Counsel (Docs. 63, 76, 88, 97, 102, 104, 112) are GRANTED. The Court recruits Attorney Kyle Shamberg of Lynch Carpenter, LL P to represent Plaintiff in this case. The Clerk of Court is DIRECTED to transmit this Order to Attorney Shamberg. Attorney Shamberg shall enter his appearance on or before June 18, 2024. Plaintiff's remaining motions are DENIED. Signed by Magistrate Judge Reona J. Daly on 6/4/2024. (lmo)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY SMITH, #N22143
Plaintiff,
v.
GLENN BABICH,
Defendant.

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Case No. 23-cv-793-RJD

ORDER
DALY, Magistrate Judge:
Plaintiff, currently incarcerated within the Illinois Department of Corrections (“IDOC”),
filed this lawsuit pro se and in forma pauperis pursuant to 42 U.S.C. §1983. Following the Court’s
threshold review conducted pursuant to 28 U.S.C. §1915A, Plaintiff proceeds on one claim of
deliberate indifference against Glenn Babich in his First Amended Complaint. Doc. 40. He
alleges that Dr. Babich was deliberately indifferent to his severe abdominal pain, possibly related
to a hernia mesh implant, from November 2022 until April 2023. This matter comes before the
Court on multiple motions by Plaintiff.
Motions for Leave to File Second Amended Complaint and Emergency Mandatory
Preliminary Injunction (Docs. 80, 103, 105-107, 109-111)
In his proposed second amended complaint, Plaintiff alleges that he needs to see a dentist
outside the IDOC because, following multiple teeth extractions, there are remnants still in his
gums. Plaintiff alleges that Dr. Overoyen denied him “care and relief” for these issues and seeks
injunctive relief regarding dental care. Doc. 103. Plaintiff also alleges that Nicole Dunlop, the
librarian at Robinson, has not given him meaningful and effective assistance at Robinson.
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Finally, Plaintiff wants to add a claim against Dr. Vi Becker, who makes inmates wait “months”
and allows a nurse to “tower” over inmates during exams. Without considering whether these
allegations against Dr. Overoyen, Nicole Dunlop, and Dr. Becker would survive a threshold review
pursuant to 28 U.S.C. §1915A, the allegations are unrelated to Plaintiff’s Eighth Amendment claim
against Dr. Babich and belong in a separate lawsuit to “‘prevent the sort of morass’ [caused] by
multi-claim, multi-defendants suits.” Owens v. Hinsley, 636 F.3d 950, 952 (7th Cir. 2011). For
that reason, Plaintiff’s Motion for Leave to bring claims against Dr. Overoyen, Nicole Dunlop,
and Dr. Becker is DENIED.
Plaintiff also attempts to allege claims against Phil Martin and Wexford Health Sources,
Inc. (“Wexford”). Plaintiff previously named Martin and Wexford in his First Amended
Complaint, but those claims were dismissed without prejudice because they were inadequately
pled. Pursuant to Local Rule 83.9(c), Plaintiff’s request for leave to bring claims against Martin
and Wexford is denied without prejudice “so that assigned counsel can evaluate how to proceed.”
Plaintiff also filed multiple motions to supplement the proposed second amended complaint, and
those motions are similarly DENIED.
Motions for Recruitment of Counsel (Docs. 63, 76, 88, 97, 102, 104, 112)
Once an indigent plaintiff makes a reasonable effort to find counsel on his own, the Court
may recruit an attorney for him “if the difficulty of the case-factually and legally-exceeds the
particular plaintiff’s capacity as a layperson to coherently present it to the judge or jury himself.”
Dewitt v. Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014) (quoting Pruitt v. Mote, 503 F.3d 647,
655 (7th Cir. 2007)). Here, Plaintiff attempted to find his own attorney. Doc. 63, pp. 3-5; Doc.
104, p.3. The issues in this case-the alleged delay and denial of care for pain near Plaintiff’s
hernia mesh site and whether that delay and denial amounted to deliberate indifference-is fairly
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complex.

Though Plaintiff has adequately represented himself so far in this litigation, the

difficulty of the particular factual and legal issues in this case exceeds his capacity as a layperson.
Accordingly, Plaintiff’s Motions for Recruitment of Counsel are GRANTED.
IT IS HEREBY ORDERED that, for the reasons stated, and in accordance with 28 U.S.C.
§ 1915(e)(1) and Local Rule(s) 83.1(i) and 83.9(b), Attorney Kyle Shamberg of the firm Lynch
Carpenter, LLP is ASSIGNED to represent Plaintiff Anthony Smith in this civil rights case. On
or before June 18, 2024, assigned counsel shall enter his appearance in this case. Attorney
Shamberg is free to share responsibilities with an attorney in his firm who is also admitted to
practice in this district court. Assigned counsel, however, must enter the case and shall make first
contact with Plaintiff, explaining that another attorney may also be working on the case. Plaintiff
should wait for his attorney to contact him in order to allow counsel an opportunity to review the
court file.
The Clerk of Court is DIRECTED to transmit this Order to Attorney Shamberg. The
electronic case file is available through the CM-ECF system.
Now that counsel has been assigned, Plaintiff shall not personally file anything in this
case, except a pleading that asks that he be allowed to have counsel withdraw from representation.
If counsel is allowed to withdraw at the request of Plaintiff, there is no guarantee the Court will
appoint other counsel to represent Plaintiff.
Counsel is ADVISED to consult Local Rules 83.8-83.14 regarding pro bono case
procedures.
Plaintiff and his counsel are ADVISED that, because Plaintiff is proceeding in forma
pauperis, if there is a monetary recovery in this case (either by verdict or settlement), any unpaid
out-of-pocket costs must be paid from the proceeds. See SDIL-LR 3.1(c)(1). If there is no
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recovery in the case (or the costs exceed any recovery), the Court has the discretion to reimburse
expenses.
Section 2.6 of this Court’s Plan for the Administration of the District Court Fund provides
for a degree of reimbursement of pro bono counsel’s out-of-pocket expenses, as funds are
available. The Plan can be found on the Court’s website, as well as the form motion for out-ofpocket expenses and an Authorization/Certification for Reimbursement. Any motion for
reimbursement must be made within 30 days from the entry of judgment, or reimbursement will
be waived. See SDIL-LR 83.13. The funds available for this purpose are limited, however, and
counsel should use the utmost care when incurring out-of-pocket costs. In no event will funds be
reimbursed if the expenditure is found to be without a proper basis. The Court has no authority
to pay attorney’s fees in this case. No portion of a partial filing fee assessed pursuant to 28 U.S.C.
§ 1915 will be reimbursed. Counsel may be reimbursed for PACER fees for this case.
The district court has entered into an agreement with attorney Alan Mills and the Uptown
People’s Law Center to consult with lawyers on issues in these cases, including substantive and
procedural questions (both legal and practical) and dealing with the client. Mr. Mills can be
reached by email at [e-mail]. He can also be reached by phone at 773-769-1411;
however, email is his preferred means of contact. His services are available to counsel free of
charge, as long as counsel is representing a prisoner pro bono on a case in the district. In addition,
the Court’s website, www.ilsd.uscourts.gov, includes a guide for attorneys which is available as a
resource. It is listed under “Rules and Forms” as “Guide for Attorneys Recruited to Represent
Plaintiffs in Section 1983 Cases.” The Court encourages appointed counsel to consult it and Mr.
Mills as needed.
As of this date, Plaintiff’s contact information is:
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Anthony Smith, N22143
Robinson Correctional Center
13423 E. 1150th Avenue
Robinson, Illinois 62454
[phone]
Motion to Postpone Filing Fee (Doc. 74)
Plaintiff submits a copy of his Inmate Trust Fund Account statement and asks the Court to
find that he has no means to pay the filing fee in this case. Plaintiff was already granted in forma
pauperis status, and therefore he does not have to immediately pay the entire amount of the filing
fee.

As Chief Judge Rosenstengel previously ordered, Robinson Correctional Center shall

forward payments of 20% of the preceding month’s income credited to Plaintiff’s trust fund
account each time the amount in his account exceeds $10 until the $350.00 filing fee is paid.
Plaintiff’s motion includes several other inquiries regarding recruitment of counsel and
exhaustion of administrative remedies that are now moot, considering the Court’s denial of his
Motion for Leave to Amend his Complaint and the order granting his recruitment of counsel.
Motion “to Notify Court of Ongoing Pattern of Behavior of Denial of Access to the Courts”
(Doc. 77)
Plaintiff asks the Court to “provide individuals in custody with paper copies of any
unreported or unavailable decisions” because certain staff members at Robinson are impeding his
ability to research this case. The Court does not have the resources to send litigants copies of
unreported decisions. In any event, the Court has recruited counsel for Plaintiff. This Motion
(Doc. 77) is DENIED.
Motions to Compel (Doc. 82 and 84)
Plaintiff informs the Court that Defendant’s attorneys never provided Defendant’s Initial
Disclosures to Plaintiff. Defendant filed no Response to these Motions. To the extent he has not
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already done so, Defendant shall send Plaintiff his Initial Disclosures on or before June 6, 2024.
Defendant shall send a copy of the Initial Disclosures directly to Plaintiff; once Attorney Shamberg
enters an appearance, Defendant shall also send him a copy of the Initial Disclosures.
Motions for Status (Docs. 85, 95, 96)
These motions are granted; the Orders entered today provide Plaintiff with an update of his
case, including an update on Defendant’s Motion for Summary Judgment (Doc. 113). Plaintiff
specifically inquired about the status of his payments for the filing fee (Doc. 95); Plaintiff has paid
$7.45 towards the filing fee and therefore still owes $342.55.
Motions for Preliminary Injunction (Docs. 98, 99, 101, 108)
Plaintiff asks the Court to enter a restraining Order against “the contractors and employees
of the Illinois Department of Corrections” who are retaliating against him and harassing him for
filing this lawsuit by obstructing his access to the law library, firing him from his job at Robinson,
disciplining him, and obstructing his access to medical records. Doc. 98, p. 1; Doc. 108, p.1
Plaintiff went on a hunger strike related to these issues. Doc. 101. Injunctive relief cannot be
granted if it is not “of the same character sought in the underlying suit, and deals with a matter
presented in that underlying suit.” Devose v. Harrington, 42 F.3d 470, 471 (8th Cir. 1994 (per
curiam)). The underlying allegations in this suit are deliberate indifference to a serious medical
need, not harassment or retaliation. To the extent that Plaintiff seeks relief from the Court
regarding prison employees retaliating against him by taking actions not related to treatment for
his hernia mesh site, those allegations must be raised in a different lawsuit.
Remaining motions
Plaintiff’s remaining motions (Docs. 78, 81, 83, 89, 90, 100) are denied without prejudice
pursuant to Local Rule 83.9(c), which provides that “[u]pon assignment of counsel, all pending
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motions filed by the party pro se shall be denied without prejudice so that assigned counsel can
evaluate how to proceed, unless otherwise ordered by the Court.
IT IS SO ORDERED.
DATED: June 4, 2024
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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