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Deryl M. Smith, Jr v. Warden Young

March 22, 2012

DERYL M. SMITH, JR., PLAINTIFF,
v.
WARDEN YOUNG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Thursday, 22 March, 2012 09:50:03 AM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff, proceeding pro se and currently incarcerated in Western Illinois Correctional Center, appears to pursue claims arising from a right rotator cuff injury. He appears to challenge a 60-day delay in being seen by a doctor and receiving prescribed pain medicine. He also seeks an x-ray to "find out what has been causing all the problems," though his "pain has resided to a bare minimum." (d/e 9, p. 3).

On February 29, 2012, the Court directed Plaintiff to clarify his claims and to clarify his statement that he filed his motion for preliminary injunction before exhausting his administrative remedies. In response, Plaintiff appears to maintain that he has received no response to his grievances except for his emergency grievance.

The Court is required to resolve the exhaustion issue before this case can proceed to discovery on the merits. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); 42 U.S.C. § 1997e(a). Once Defendants have appeared through counsel, discovery will be stayed except as to the exhaustion issue. Defendants will be directed to file a motion for summary judgment addressing whether Plaintiff exhausted his administrative remedies before filing this lawsuit.

IT IS THEREFORE ORDERED:

1) The merit review hearing scheduled for April 2, 2012 is cancelled. The clerk is directed to notify Plaintiff's prison of the cancellation.

2) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states a federal constitutional claim for deliberate indifference to his need for medical attention and pain medicine regarding his rotator cuff injury. Any additional claims shall not be included in the case, except at the Court's discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15.

3) The Clerk is directed to send to each Defendant pursuant to this District's internal procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3) a copy of the Complaint; and, 4) this order.

4) If a Defendant fails to sign and return a Waiver of Service to the Clerk within 30 days after the Waiver is sent, the Court will take appropriate steps to effect formal service on that Defendant and will require that Defendant to pay the full costs of formal service pursuant to Federal Rule of Civil Procedure 4(d)(2).

5) With respect to a Defendant who no longer works at the address provided by Plaintiff, the entity for whom that Defendant worked while at that address shall provide to the Clerk said Defendant's current work address, or, if not known, said Defendant's forwarding address. This information shall be used only for effecting service. Documentation of forwarding addresses shall be retained only by the Clerk and shall not be maintained in the public docket nor disclosed by the Clerk.

6) Defendants shall file an answer within the time prescribed by Local Rule. A motion to dismiss is not an answer. The answer should include all defenses appropriate under the Federal Rules. The answer and subsequent pleadings ...


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