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Duncan v. Pierce

October 24, 2008

DARRYL DUNCAN, PLAINTIFF,
v.
GUY PIERCE, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

CASE MANAGEMENT /SUMMARY JUDGMENT ORDER

This cause is before the court for consideration of Defendant Rankin's motion for summary judgment [d/e 67] and Defendants Newton, Collins, Davis, McNeil, Pitts, Oleson, Ricke, G. Johnson, S. Johnson, Pierce, Vanwolvelare, Ballard and Frainey's motion for sanctions. [d/e 65].

I. BACKGROUND

The plaintiff, Darryl Duncan, originally filed his complaint pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated in the East Moline Correctional Center. The plaintiff has the following surviving claims against 14 defendants:

a) Defendants Dr. Rankin and Scott Johnson were deliberately indifferent to the plaintiff's serious medical condition when they refused to reassign the plaintiff to different job on June 5 and June 13 of 2006.

b) Defendants Collins, Davis, Newton, Ricke, Guy Johnson and Vanwolvelare were deliberate indifference to the plaintiff's serious medical condition on March 12, 2007 in violation of the Eighth Amendment.

c) Defendants Oleson and Pitts violated the plaintiff's Eighth Amendment rights when they placed him in a cell without running water or toilet facilities in March of 2007.

d) Defendants Dr. Frainey, Dr. Rankin, McNeil, Pierce and Ballard retaliated against the plaintiff for his grievances in violation of the First Amendment. The plaintiff alleges that Defendants Dr. Frainey and Dr. Rankin provided false information so the plaintiff would be placed in medical segregation. Defendants McNeil, Pierce and Ballard denied the plaintiff admission in a work release program.

On October 15, 2007, the plaintiff filed a notice of appeal. [d/e 41]. The plaintiff disagreed with the outcome of the merit review order and disagreed with the denial of his motion for appointment of counsel. The plaintiff did not initially file a motion to proceed in forma pauperis on appeal. However, when the plaintiff did file this motion, it was denied on February 15, 2008. The plaintiff was advised he must pay the appellate filing fee within 14 days. See February 15, 2008 Court Order.

On April 4, 2008, Defendant Rankin filed a motion for sanctions against the plaintiff. The defendant stated that a deposition of the plaintiff was scheduled for March 19, 2008 at the Vienna Correctional Center. The plaintiff received proper notice of the time and place of his deposition. Defense counsel stated that the plaintiff refused to give his deposition and refused to give a statement on the record as to his reasons for refusing the deposition. The defendants asked that the plaintiff's case be dismissed or in the alternative, that the plaintiff be assessed reporter fees and mileage costs.

On April 23, 2008, the court denied the defendant's motion. However, the court clearly admonished the plaintiff:

The plaintiff chose to file this lawsuit and therefore must participate in the discovery process. Because the plaintiff is proceeding pro se, the court will allow the plaintiff one more opportunity. The defendants are to reschedule the plaintiff's deposition and provide the proper notice to the plaintiff. The plaintiff must cooperate and participate in the deposition. If the plaintiff refuses to cooperate in the deposition, his case will be dismissed. April 23, 2008 Court Order.

The court then on its own motion extended the discovery deadlines.

On May 28, 2008, the United States Appellate Court for the Seventh Circuit also told the plaintiff he must pay the appellate filing fee within 14 days or his appeal would be dismissed. [d/e 63] His appeal was dismissed on July 18, 2008 [d/e 73].

II. MOTION FOR SUMMARY JUDGMENT

Defense counsel for Dr. Rankin has filed a motion for summary judgment or in the alternative motion for dismissal based on the plaintiff's failure to participate in his deposition. The motion was filed on June 27, 2008, but the plaintiff has failed to file a response and has failed to ask for additional time to file a response. The plaintiff claims Dr. Rankin was deliberately indifferent to the plaintiff's serious medical condition when he refused to reassign the plaintiff to a new job in June of 2006. In addition, the plaintiff claims Dr. Rankin retaliated against the plaintiff for his grievances in violation of the First Amendment. Specifically, the plaintiff alleges that Dr. Rankin provided false information so the plaintiff would be placed in medical segregation.

A. FACTS

The undisputed facts stated by the defendant are as follows: Dr. Rankin is the Medical Director at East Moline Correctional Center and saw the plaintiff as a patient when he was housed at the facility. (Def. SJ Mot, Ex. A, p. 1). The defendant says he saw the plaintiff on June 15, 2006 for a scheduled follow-up visit due to a cyst on his toe. However, the plaintiff's chief complaint was pain in his left arm after fell on it the previous day. The doctor says he examined the plaintiff and found that he had full range of motion in his wrist, but was complaining of pain. The doctor ordered a splint, ibuprofen for pain, an ...


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