The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
Plaintiff, an inmate in the Menard Correctional Center, brings
this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted
leave to proceed in forma pauperis, and he has tendered his
initial partial filing fee as ordered.
Plaintiff states that in the summer of 2002, he began
experiencing stomach pain and dizziness; over the next several
months, his condition worsened to include chronic vomiting and
chest pain. He alleges that although he was seen periodically at
the health center, Defendants failed to do more than prescribe
antacids, telling him to "stop faking" his condition. More than 18
months after his symptoms began, Plaintiff was finally diagnosed
with a "hiatal hernia." Despite this diagnosis, Plaintiff alleges
that Defendants refused to provide him with treatment for his
condition, in violation of his rights under the Eighth Amendment.
The Supreme Court has recognized that "deliberate indifference
to serious medical needs of prisoners" may constitute cruel and
unusual punishment under the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan,
511 U.S. 825 (1994). This encompasses a broader range of conduct than intentional denial of necessary
medical treatment, but it stops short of "negligen[ce] in
diagnosing or treating a medical condition." Estelle,
429 U.S. at 106. See also Jones v. Simek, 193 F.3d 485, 489 (7th
Cir. 1999); Steele v. Choi, 82 F.3d 175, 178 (7th Cir.
1996), cert. denied, 519 U.S. 897 (1996).
[A]n Eighth Amendment claimant need not show that a
prison official acted or failed to act believing that
harm actually would befall an inmate; it is enough
that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm. . . .
Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including
inference from circumstantial evidence, . . . and a
fact-finder may conclude that a prison official knew
of a substantial risk from the very fact that the
risk was obvious.
Farmer, 511 U.S. at 842.
Applying these standards to the allegations in the complaint,
the Court is unable to dismiss any portion of this action at this
point. See 28 U.S.C. § 1915A.
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit
and Request for Waiver of Service of Summons) and Form 1B (Waiver
of Service of Summons) for Defendants AHMED, GRUBMAN and
GERST. The Clerk shall forward those forms, USM-285 forms
submitted by Plaintiff, and sufficient copies of the complaint to
the United States Marshal for service.
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendants AHMED, GRUBMAN and GERST in the manner
specified by Rule 4(d)(2) of the Federal Rules of Civil
Procedure. Process in this case shall consist of the complaint,
applicable forms 1A and 1B, and this Memorandum and Order. For
purposes of computing the passage of time under Rule 4(d)(2), the
Court and all parties will compute time as of the date it is
mailed by the Marshal, as noted on the USM-285 form. With respect to former employees of Illinois Department of
Corrections who no longer can be found at the work address
provided by Plaintiff, the Department of Corrections shall
furnish the Marshal with the Defendant's last-known address upon
issuance of a court order which states that the information shall
be used only for purposes of effectuating service (or for proof
of service, should a dispute arise) and any documentation of the
address shall be retained only by the Marshal. Address
information obtained from I.D.O.C. pursuant to this order shall
not be maintained in the court file, nor disclosed by the
The United States Marshal shall file returned waivers of
service as well as any requests for waivers of service that are
returned as undelivered as soon as they are received. If a waiver
of service is not returned by a defendant within THIRTY (30)
DAYS from the date of mailing the request for waiver, the United
States Marshal shall:
Request that the Clerk prepare a summons for that
defendant who has not yet returned a waiver of
service; the Clerk shall then prepare such summons as
Personally serve process and a copy of this Order
upon the defendant pursuant to Rule 4 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 566(c).
Within ten days after personal service is effected,
the United States Marshal shall file the return of
service for the defendant, along with evidence of any
attempts to secure a waiver of service of process and
of the costs subsequently incurred in effecting
service on said defendant. Said costs shall be
enumerated on the USM-285 form and shall include the
costs incurred by the Marshal's office for
photocopying additional copies of the summons and
complaint and for preparing new USM-285 forms, if
required. Costs of service will be taxed against the
personally served defendant in accordance with the
provisions of Federal Rule of Civil Procedure 4(d)(2)
unless the defendant shows good cause for such
Plaintiff is ORDERED to serve upon defendant or, if
appearance has been entered by counsel, upon that attorney, a
copy of every further pleading or other document submitted for
consideration by this Court. He shall include with the original
paper to be filed with the Clerk of the Court a certificate stating the date that a true and correct
copy of any document was mailed to defendant or his counsel. Any
paper received by a district judge or magistrate judge which has
not been filed with the Clerk or which 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 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 cause is REFERRED to
a United States Magistrate Judge for further pre-trial
Further, this entire matter is hereby REFERRED to a United
States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk
and each opposing party informed of any change in his
whereabouts. This shall be done in writing and not later than
seven (7) days ...