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Herman L. Nitz v. Nurse Michelle Bell

April 27, 2012

HERMAN L. NITZ, PLAINTIFF,
v.
NURSE MICHELLE BELL, NURSE PEARSON, AND NURSE PIATT, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY U.S. District Judge

E-FILED

Monday, 30 April, 2012 08:48:12 AM

Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on various pro se Motions filed by Plaintiff, Herman L. Nitz. Following a careful review of Plaintiff's Motions and Defendants' Responses, this court rules as follows: (1) Plaintiff's Second Motion to Compel (#64) is DENIED as moot; (2) Plaintiff's Motion for Subpoenas (#67) is DENIED; (3) Plaintiff's Motion for Non-Defendants to Produce Documents (#68) is DENIED as moot; (4) Plaintiff's Motion to Amend Civil Rights Complaint (#70) is GRANTED; (5) Plaintiff's Motion for Summary Judgment (#71) is DENIED; (6) Plaintiff's Motion for Declaratory Relief, Injunction, Temporary Restraining Order or Appointment of Counsel (#73) did not request relief which could be awarded against any of the named Defendants and is therefore DENIED; and (7) Plaintiff's Motion for Leave to File Petition for Mandamus Relief for Recusal of Judge and Change of Venue (#81) is DENIED. In addition, Defendants' Motion for Extension of Time to Complete Discovery (#69) is GRANTED. Defendants' discovery responses provided to Plaintiff on March 23, 2012, are therefore timely.

BACKGROUND*fn1

On March 2, 2011, Plaintiff filed a pro se Complaint (#1) against numerous named defendants. On March 29, 2011, a merit review hearing was held. This court directed Plaintiff to file an Amended Complaint as to issues that occurred at Danville Correctional Center only and allowed Plaintiff until May 6, 2011, to file the Amended Complaint.

On April 8, 2011, Plaintiff filed his Amended Complaint (#17). Plaintiff again named numerous defendants and included numerous claims. On May 12, 2011, this court held a merit review hearing and entered a merit review text order. This court found that Plaintiff had alleged a claim under the Eighth Amendment for deliberate indifference to his serious medical needs due to the alleged failure of Defendants Linda Piatt, RN, Elicia Pearson, LPN, and Michelle Bell, LPN, to provide insulin for his diabetes. The other defendants named by Plaintiff were dismissed as defendants. This court stated that "[a]ny other claims not specifically set forth in this order shall not be included in the case, except at the court's discretion on motion by a party for good cause shown at the final pretrial conference, or by leave of court pursuant to Federal Rule of Civil Procedure 15." On May 13, 2011, this court entered a text order and denied Plaintiff's Motion for Appointment of Counsel (#3), finding that Plaintiff had not made reasonable attempts to retain an attorney on his own. On May 20, 2011, Plaintiff filed another Motion for Appointment of Counsel (#19) which was denied on May 26, 2011.

Defendants entered their appearance and filed an Answer to Plaintiff's Amended Complaint (#38) on August 23, 2011. Defendants denied that any act or omission on their part constituted deliberate indifference to a serious medical need. On September 1, 2011, Plaintiff filed a document entitled "Request for Leave to File pro se Plaintiff's Motion to Compel Discovery Combined with Request for Preliminary Injunction & Protective Order and Request for Appointment of Counsel (#39). In this filing, Plaintiff asked this court to appoint counsel to assist him in conducting discovery, including deposing Defendants. Plaintiff also asked this court to compel production of a lengthy list of items. Plaintiff also requested various other forms of relief related to documents and his treatment at Danville Correctional Center. On September 22, 2011, Defendants filed a Response to Plaintiff's Motion for Preliminary Injunction and Protective Order (#40). Defendants stated that it appeared that Plaintiff was seeking to begin the discovery process by filing a Motion to Compel. Defendants argued that Plaintiff's Motion to Compel was premature because Plaintiff had not propounded any discovery requests upon Defendants prior to filing a Motion to Compel. Defendants stated, however, that they were treating Plaintiff's request for documents in his Motion as a Request for Production under Rule 34 of the Federal Rules of Civil Procedure. Defendants further stated that Plaintiff had not shown that he was entitled to injunctive relief. Defendants also filed a Motion for Protective Order (HIPAA Qualified Protective Order) (#41).

On October 13, 2011, this court entered an Order (#43). This court first informed Plaintiff that, for each action he sought from the court, he must file a separate motion. This court then stated that, because Plaintiff did not follow the appropriate discovery procedures, his motion to compel (#39) was denied. This court then explained:

Because Plaintiff is incarcerated, he is limited to written discovery. Plaintiff may request a copy of his medical records from the Medical Director at his place of incarceration. He needs to let the Director know the records [that] are needed for litigation. Medical records cannot be requested through the Freedom of Information Act. If Plaintiff does not have funds in his trust fund to cover the copy costs, the costs will be charged against his trust fund and taken from any future deposits into his trust fund. If he needs medical records from sources other than the Illinois Department of Correction[s], Plaintiff is responsible for the costs. Further, as the Defendants are represented by an attorney, Plaintiff does not need the personal addresses and phone numbers of Defendants. Plaintiff is reminded that discovery requests are not filed with the court, unless there is a dispute regarding such discovery.

This court also denied Plaintiff's request for injunctive relief and Plaintiff's renewed request for the appointment of counsel. This court granted Defendants' Motion for a HIPAA Qualified Protective Order (#41). Defendants' proposed Order (#44) was therefore entered. The Order (#44) provided that "Plaintiff's medical records shall be released to the attorneys of record in this litigation upon request of said attorneys." The Order also provided for the protection of Plaintiff's health information.

On November 22, 2011, a scheduling conference was held by telephone. Plaintiff and Defendants' counsel participated in the conference. This court then entered a Case Management Order (#52). The Order set a deadline of February 1, 2012, to join other parties or amend the pleadings, set deadlines for identifying experts, and set a deadline of April 30, 2012, to complete fact discovery. The Order stated that the parties had until June 30, 2012, to file dispositive motions. The case was set for a final pretrial conference on October 5, 2012, at 11:00 a.m., and a jury trial on October 15, 2012, at 9:00 a.m.

On December 14, 2011, Plaintiff filed another Motion for Appointment of Counsel (#57) with a Memorandum in Support (#58). Plaintiff also filed a Request for 5 Subpoena Forms (#59). On December 21, 2011, this court entered a text order. This court stated that Rule 45.1 of the Local Rules of the Central District of Illinois provides that in a civil case, the clerk must not issue blank subpoenas to a pro se party except upon order of the judge to whom the case is assigned. This court further stated that, under Local Rule 45.2, a pro se litigant may move the court, either orally or in writing, to issue a subpoena for specific witnesses or documents. This court stated that the pro se litigant must present the court orally or in writing with a statement of what relevant information the documents contain or the person to be subpoenaed possesses.

On January 12, 2012, Plaintiff filed a Request for Status of Motion for Appointment of Counsel (#61). Plaintiff complained that Defendants had not adequately responded to his written discovery requests. Plaintiff also stated that he had contacted three law firms regarding representation and none of the firms had responded. Plaintiff again asked this court to appoint counsel to represent him. Plaintiff attached copies of his letter to the law firms, Defendants' responses to his discovery requests, and copies of letters Plaintiff wrote to Defendants' attorney and Defendants' attorney's response. On January 13, 2012, Defendants filed their Response to Plaintiff's Motion for Appointment of Counsel (#62). Defendants stated that Plaintiff appeared to be asserting that Defendants were not cooperating with discovery. Defendants attached a copy of Defendant Bell's Response to Plaintiff's First Set of Interrogatories. Defendants stated that Bell had complied with the Federal Rules of Civil Procedure in responding to the Interrogatories. Defendants argued that their alleged lack of cooperation in discovery was not grounds for appointment of counsel.

On January 19, 2012, this court entered a text order. This court denied Plaintiff's Motion for Appointment of Counsel (#57), agreeing with Defendants that Defendant Bell had responded to Plaintiff's Interrogatories in compliance with the Federal Rules of Civil Procedure so that Defendants' alleged lack of cooperation in discovery was not grounds for appointment of counsel. This court stated that, furthermore, a motion to compel was the appropriate route to deal with failure to cooperate with discovery, not a motion for appointment of counsel. This court stated that it was too early in the case to make a determination whether Plaintiff's claim was sufficiently meritorious such that appointing counsel would make a difference in the case. This court also stated that "a review of documents filed by the plaintiff shows that he is competent to proceed with the litigation in this case and waiting to appoint an attorney until after summary judgment is not an abuse of discretion where the plaintiff [is] able to competently file motions and legal arguments." This court then concluded that Plaintiff's Motion (#61) had been rendered moot.

On January 25, 2012, Plaintiff filed a document entitled "Second Motion to Compel Discovery" (#64). Plaintiff asked this court for an order compelling Defendants to produce the documents he requested as well as an order compelling Defendant Bell to answer unanswered Interrogatories. Plaintiff stated that he has alleged that "Defendants denied him insulin for his diabetes for 30 or more days and also refused to call the Doctor to get insulin for Plaintiff despite the fact that Plaintiff's blood sugar was abnormally high and caused cellulitis in Plaintiff's left foot requiring him to be hospitalized for 7 to 10 days in prison infirmary." Plaintiff stated that he had requested documents relevant to his claim, including "his medical records, grievances and responses to appeals of same grievances, incident reports and other records describing locations of defendants on dates of alleged violations and list of defendants' job duties and responsibilities, policy statements for treatment of diabetics as well as answers to Interrogatories to Nurse Michelle Bell LPN." Plaintiff attached copies of Defendants' discovery responses and copies of letters between Plaintiff and Defendants' attorney. These exhibits included a letter Defendant's counsel wrote to Plaintiff on January 17, 2012. He stated:

My clients do not personally possess your medical records. For my clients to receive your medical records, I had to subpoena them. Your medical records are equally available to you through this process. All you have to do is request your medical records from the Illinois Department of Corrections. Additionally, you take issue with my clients' responses regarding your grievances filed to the Illinois Department of Corrections. Again, my clients do not have personal possession of your grievance records. Those records are maintained by the Illinois Department of Corrections and are equally available to you through a request to IDOC.

Additionally, you take issue with Defendant Bell's responses to Interrogatories 2, 3, and 4. Defendant Bell has asserted she does not know the answers to your questions. You assert that she could find out the answers. However, under the Federal Rules of Civil Procedure, Ms. Bell is not required to seek out information in order to answer your interrogatories. In other words, your interrogatories are questions as to Ms. Bell's personal knowledge. She does not have the knowledge to answer your interrogatories.

Defendants' counsel also explained to Plaintiff that much of the information he was seeking would be included in his medical records, which were available to him through the Illinois Department of Corrections.

On January 27, 2012, Plaintiff filed a Subpoena (#65) directed to the Illinois Department of Corrections seeking documents from 2009 to the present. On January 30, 2012, this court entered a text order and directed the clerk to strike the Subpoena. This court informed Plaintiff that he could receive most of the documents he was seeking through discovery and could request a copy of his medical records from the medical director at the Danville Correctional Center. This court stated that Plaintiff must not file subpoenas without an order of this court.

On January 31, 2012, Defendants filed a Response to Plaintiff's Request for Status of Motion for Appointment of Counsel (#66). Defendants stated that it appeared that Plaintiff believes that Defendants had a duty to "track down and find out" responses to his requests. Defendants stated that, under the Federal Rules of Civil Procedure, they have no such duty. Defendants stated that they have responded to Plaintiff's discovery requests as best they could based on their personal knowledge and the documentation which they personally ...


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