McGrew v. Tran

Filing 7

ORDER: The Complaint survives preliminary review pursuant to Section 1915A. The Clerk of Court is DIRECTED to RENAME the pleading at Doc. 1 as follows: The Complaint and Motion for Preliminary Injunction filed by Douglas McGrew. The Court DEFERS ruling on the request for preliminary injunction. The Clerk SHALL ADD the Warden of Big Muddy River Correctional Center as a defendant in his or her official capacity only for the purpose of responding to the motion for preliminary injunction and implementing any injunctive relief that may be ordered. The Warden SHALL respond to the motion for preliminary injunction within 14 days of service. The Clerk shall serve process on the Warden and Tran in accordance with this Order. The Clerk is further DIRECTED to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The #3 Motion for Recruitment of Counsel is DENIED. Signed by Judge Stephen P. McGlynn on 2/7/2024. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DOUGLAS MCGREW,
Plaintiff,

Case No. 24-cv-00232-SPM

v.
QUAUY TRAN,
Defendant.

MEMORANDUM AND ORDER
MCGLYNN, District Judge:
Plaintiff Douglas McGrew, an inmate of the Illinois Department of Corrections who is
currently incarcerated at Big Muddy River Correctional Center, brings this civil action pursuant to
42 U.S.C. §1983 for the violation of his constitutional rights. Plaintiff seeks monetary damages
and preliminary and permanent injunctive relief. Plaintiff’s Complaint is now before the Court for
preliminary review pursuant to 28 U.S.C. § 1915A. Under Section 1915A, any portion of a
complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or requests money damages from a defendant who by law is immune from such relief
must be dismissed. See 28 U.S.C. § 1915A(b).
THE COMPLAINT
Plaintiff alleges that on May 5, 2023, he sent a request to be seen by a dentist because he
was having tooth pain. Plaintiff saw Dentist Dr. Tran, who took an x-ray and determined that
Plaintiff needed his upper left wisdom tooth extracted. On May 17, 2023, Dr. Tran numbed
Plaintiff’s gums and attempted to extract his wisdom tooth but unsuccessfully. Plaintiff states that
Dr. Tran broke his tooth three times, and he left the appointment with his tooth not extracted.
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Plaintiff was rescheduled for another appointment and given 600 mg of ibuprofen and 500 mg of
amoxicillin.
On May 24, 2023, Plaintiff returned to the dental department for his second appointment.
Dr. Tran was again unable to extract Plaintiff’s tooth. Dr. Tran broke Plaintiff’s tooth three more
time during this appointment. Dr. Tran told Plaintiff that he would have to refer Plaintiff to an
outside oral surgeon on a medical emergency furlough to have his tooth extracted.
Based on Plaintiff’s exhibits, as of filing this Complaint on February 1, 2024, Plaintiff has
still not been to see an oral surgeon or had follow-up appointments with an onsite dentist. He
remains in excruciating pain.
Based on Plaintiff’s allegations, the Court designates the following count:
Count 1:

Eighth Amendment claim of deliberate indifference against Dr. Tran.

The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be considered dismissed without prejudice
as inadequately pled under the Twombly pleading standard.1
DISCUSSION
At this stage, Plaintiff has stated a viable claim against Dr. Tran for deliberate indifference
to his serious medical needs. Count 1 will proceed.
In the Complaint, Plaintiff states that he is requesting permanent and injunctive relief. He
asks that Dr. Tran be directed to attend properly to those who need dental care. The Court assumes
that this request for proper dental care includes Plaintiff, who still has not seen an oral surgeon
after two failed attempts to extract his wisdom tooth over eight months ago. Plaintiff’s delayed

1

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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care is concerning. Therefore, although Plaintiff has not filed a separate motion for emergency
injunctive relief and his filing fee status is still pending, the Court will move forward with this
case. The Clerk of Court will be directed to rename the pleading at Doc. 1 as follows: Complaint
and Motion for Preliminary Injunction filed by Douglas McGrew. The Clerk will further be
directed to add the Warden of Big Muddy River Correctional Center as a defendant, in his or her
official capacity only, for the purpose of responding to the motion for preliminary injunction and
implementing any injunctive relief that may be ordered. The Court will defer ruling on the motion
for preliminary injunction, and the Warden of Big Muddy River Correctional Center will be
directed to respond to the motion within 14 days of service.
MOTIONS FOR RECRUITMENT OF COUNSEL
Plaintiff has filed a motion seeking court recruited counsel (Doc. 3), which is DENIED.2
Along with his motion, Plaintiff has included letters from several law firms declining
representation. Accordingly, he appears to have made reasonable efforts to retain counsel on his
own. With respect to his ability to pursue this action pro se, Plaintiff states that he has no
understanding of law. Plaintiff’s limited knowledge of the law, however, is not unique to him as a
pro se litigant and does not necessarily warrant recruitment of counsel at this time. Plaintiff has
already prepared a Complaint that survived screening and has demonstrated an ability to construct
coherent sentences and relay information to the Court. He also states he has some college
education. This straightforward case is currently proceeding on a single claim and given the early
stage of litigation, it is difficult to accurately evaluate the need for assistance of counsel. Should
his situation change as the case proceeds, Plaintiff may file another motion setting forth all facts
that support his request for relief.

In evaluating Plaintiff’s motion, the Court applies the factors discussed in Pruitt v. Mote, 503 F.3d 647, 654 (7th
Cir. 2007) and related authority.

2

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DISPOSITION
For the reasons stated above, the Complaint survives preliminary review pursuant to
Section 1915A. Count 1 will proceed against Quauy Tran.
The Clerk of Court is DIRECTED to RENAME the pleading at Doc. 1 as follows:
Complaint and Motion for Preliminary Injunction filed by Douglas McGrew. The Court DEFERS
ruling on the request for preliminary injunction. The Clerk SHALL ADD the Warden of Big
Muddy River Correctional Center as a defendant in his or her official capacity only for the purpose
of responding to the motion for preliminary injunction and implementing any injunctive relief that
may be ordered. The Warden SHALL respond to the motion for preliminary injunction
within 14 days of service.
The Clerk is further DIRECTED to enter the standard qualified protective order pursuant
to the Health Insurance Portability and Accountability Act.
The Clerk of Court SHALL prepare for Tran and the Warden of Big Muddy River
Correctional Center the following: (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, and this Memorandum and Order to each defendants’
place of employment. 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 the 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.
If the defendant can no longer 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, his
last known address. This information shall be used only for sending the forms as directed above
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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
Administrative Order No. 244, Defendants should respond to the issues stated in this Merit
Review Order.
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 14 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: February 7, 2024
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge

NOTICE TO PLAINTIFF
The Court will take the necessary steps to notify the appropriate defendants of your lawsuit and
serve them with a copy of your complaint. After service has been achieved, the defendants will
enter their appearance and file an Answer to the complaint. It will likely take at least 60 days from
the date of this Order to receive the defendants’ Answers, but it is entirely possible that it will take
90 days or more. When all of the defendants have filed Answers, the Court will enter a Scheduling
Order containing important information on deadlines, discovery, and procedures. Plaintiff is
advised to wait until counsel has appeared for the defendants before filing any motions, to give the
defendants notice and an opportunity to respond to those motions. Motions filed before defendants’
counsel has filed an appearance will generally be denied as premature. Plaintiff need not submit
any evidence to the Court at his time, unless otherwise directed by the Court.
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