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Charles King v. Wexford Health Sources

United States District Court, Northern District of Illinois

June 17, 2011


Name of Assigned Judge or Magistrate Judge James F. Holderman Sitting Judge if Other than Assigned Judge




Plaintiff's motion for leave to file in forma pauperis [#3] is granted. The Court orders the trust fund officer at Plaintiff's current place of incarceration to deduct $9.29 from Plaintiff's account for payment to the Clerk of Court as an initial partial filing fee. The Clerk shall send a copy of this order to the trust fund officer at Stateville Correctional Center. The Clerk is directed to issue summonses for Defendants Wexford Health Source, Inc. and Ghosh, and the United States Marshals Service is appointed to serve them. The Clerk shall send Plaintiff Instructions for Submitting Documents, along with a copy of this order. Plaintiff's motion for appointment of counsel [#4] is denied without prejudice.

O[For further details see text below.] Docketing to mail notices.


Plaintiff, Charles King, presently in state custody at Stateville Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Plaintiff suffers from Hepatitis-C and has an artificial hip. He alleges that in 2007, due to cost cutting measures put in place by Defendant Wexford Health Sources, Inc, and carried out by Defendant Ghosh, the Medical Director at Stateville Correctional Center at the time, he received insufficient treatment which has resulted in his Hepatitis becoming a terminal condition. He further alleges that because of the advanced nature of his Hepatitis, he is being denied surgery to replace his artificial hip. With respect to Defendant Wexford Health Source, Plaintiff alleges that the delay and insufficient treatment is due to a custom and policy of cost cutting instituted by Wexford.

Plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is assessed an initial partial filing fee of $9.29. The trust fund officer at Plaintiff's place of incarceration is authorized and ordered to collect the partial filing fee from Plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, Plaintiff's trust fund officer is directed to collect monthly payments from Plaintiff's trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier's Desk, 20th Floor, and shall clearly identify Plaintiff's name and this case number. This payment obligation will follow Plaintiff wherever he may be transferred.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt initial review of prisoner complaints against governmental entities or employees. Here, accepting Plaintiff's factual allegations as true, the Court finds that the complaint states a colorable cause of action under the Civil Rights Act for deliberate indifference to a serious medical need. Davis v. Carter, 453 F.3d 686, 696 (7th Cir. 2006), see also Henry v. Osafo, 2010 U.S. Dist. LEXIS 110636 (C.D. Ill, October 18, 2010) (Baker, J) . It is not clear whether Plaintiff's claims involving his lack of care at Stateville Correctional Center are barred by the statute of limitations period, as he alleges an ongoing violation that he only became aware of in 2010, and therefore the Court will not resolve this issue during the screening of Plaintiff's complaint. Jervis v Mitcheff, 258 Fed. Appx. 3 (7th Cir. 2007). With respect to Defendant Wexford, taking Plaintiff's well pled facts as true, Plaintiff has stated only an official capacity claim. Estate of Novack ex rel. v. County of Wood, 226 F.3d 525, 530 (7th Cir. 2000).

The Clerk shall issue summonses to Defendants Wexford Health Source, Inc. And Dr. Ghosh (hereinafter, "Defendants") and send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order.

The United States Marshals Service is appointed to serve Defendants. Any service forms necessary for Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendants with process. The U.S. Marshal is directed to make all reasonable efforts to serve Defendants. With respect to former correctional employees who no longer can be found at the work address provided by Plaintiff, the Illinois Department of Corrections shall furnish the Marshal with Defendant's last-known address. 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 shall not be maintained in the court file, nor disclosed by the Marshal. The Marshal is authorized to mail a request for waiver of service to Defendants in the manner prescribed by Fed. R. Civ. P. 4(d)(2) before attempting personal service.

Plaintiff is instructed to file all future papers concerning this action with the clerk of court in care of the Prisoner Correspondent. Plaintiff must provide the original plus a judge's copy of every document filed. In addition, Plaintiff must send an exact copy of any Court filing to Defendants [or to defense counsel, once an attorney has entered an appearance on their behalf]. Every document filed must include a certificate of service stating to whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded by the Court or returned to Plaintiff.

Plaintiff has also filed a motion for appointment of counsel. The motion is denied without prejudice. Civil litigants do not have a constitutional or statutory right to counsel. See Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002). Nevertheless, a district court may, in its discretion, "request an attorney to represent any person unable to afford counsel." Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004), citing 28 U.S.C. § 1915(e)(1); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997). In deciding whether to appoint counsel, the Court must consider: (1) whether, given the degree of difficulty of the case, a plaintiff appears competent to try it himself; and (2) whether the assistance of counsel would provide a substantial benefit to the court or the parties, potentially affecting the outcome of the case. Gil, 381 F.3d at 656, relying on Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).

After considering the above factors, the Court concludes that appointment of counsel is not warranted at this time. Although Plaintiff has articulated colorable claims, he has alleged no physical or mental disability that might preclude him from adequately investigating the facts giving rise to his complaint. Neither the legal issues raised in the complaint nor the evidence that might support Plaintiff's claims are so complex or intricate that a trained attorney is necessary. Because Plaintiff appears more than capable of presenting his case at least at this preliminary stage, the Court declines to appoint counsel for Plaintiff at this time. It should additionally be noted that the Court grants pro se litigants wide latitude in the handling of their lawsuits. Finally, should the case proceed to a point that assistance of counsel is appropriate, the Court may revisit the issue of whether counsel should be appointed, either on the Court's own motion or on renewed motion by Plaintiff.


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