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Thomas E. Byrd, # S-09454 v. Warden Gaetz C/O Fagerland

October 17, 2012


The opinion of the court was delivered by: Reagan, District Judge:


Plaintiff, currently incarcerated at Pickneyville Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants Fagerland, Brown and Hubler subjected him to cruel and unusual punishment. Plaintiff states that Defendants Shah and Rector have shown deliberate indifference to Plaintiff's serious medical needs. Plaintiff's claims all arise from the fact that while at Pickneyville he had surgical screws placed in his ankle which medical staff have since refused to remove. Plaintiff states that because he is placed with cellmates with similar limitations he has been denied low bunk permits and accommodations for his ankle. Being denied a request to relocate, Plaintiff moved his belongings to a dayroom and was thereafter disciplined. Defendants Fagerland, Brown and Hubler cuffed Plaintiff and placed him in the showers for three and a half hours, denying him access to food, water and toilet facilities. Plaintiff also names Defendant Gaetz, the Warden of Picneyville, in his complaint, but makes no specific allegations against him.

Plaintiff suffers from daily pain and swelling of his ankle. Despite complaints to Defendants Shah and Rector, medical staff at Pickneyville, the screws have not been removed nor has Plaintiff been afforded proper accommodations for his condition. This case is now before the Court for a preliminary review of Plaintiff's operative complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening. -- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for Dismissal. -- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendants Fagerland, Brown and Hubler for cruel and unusual punishment (Count 1) and against Shah and Rector for deliberate indifference to medical needs (Count 2).

However, the claim against Defendant Gaetz, Warden of Pickneyville, is dismissed on initial review because the doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). Plaintiff has not alleged that this defendant is "personally responsible for the deprivation of a constitutional right." Id. Accordingly, Defendant Gaetz is DISMISSED as a defendant without prejudice, as plaintiff has failed to state a claim upon which relief can be granted.

Pending motions

Plaintiff has submitted an affidavit stating that he has no employment, has received no income for the last twelve months, and has no assets or cash on hand. However, he has not tendered a certified copy of his inmate trust fund account statement. The Court has requested a trust fund statement for the six-month period immediately preceding the filing of this case from the Pickneyville Correctional Center, but to date has not received information sufficient to determine the amount of Plaintiff's initial partial payment. Based on Plaintiff's affidavit of indigence, the Court concludes that he is unable to pay in full the $350.00 filing fee in this case at this time, and therefore it is appropriate to permit him to proceed IFP in this case without full prepayment of the fee. At such time as the Court receives from the institution's Trust Fund Officer the certified copy of Plaintiff's trust fund account statement as requested, the Court will enter an order authorizing the Trust Fund Officer to deduct from Plaintiff's trust fund account the initial partial filing fee, and to forward the initial partial filing fee to the Clerk of Court. The order shall also direct subsequent payments to be made pursuant to § 1915 until the filing fee is paid in full. To conclude, Plaintiff's motion to proceed IFP in this case (Doc. 2) is GRANTED. The Clerk of Court is directed to send a copy of this Order to Plaintiff and to the Trust Fund Officer at Pickneyville Correctional Center.

The Court DENIES, without prejudice, Plaintiff's motion for service of process at government expense (Doc. 4). Plaintiff is ADVISED that it is not necessary for a litigant proceeding in forma pauperis to file a motion requesting service at the government's expense. The Clerk will direct service for any defendants in a complaint that passes preliminary review. Disposition

Defendant Gaetz is DISMISSED as a defendant without prejudice.

The Clerk of Court shall prepare for Defendants Fagerland, Brown, Hubler, Shah and Rector: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and Order to each Defendant's place of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service on that Defendant, and the Court will require that Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.

With respect to a Defendant who no longer can be found at the work address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant's current work address, or, if not known, the Defendant's last-known address. This information shall be used only for sending the forms as directed above or for formally effecting service. Any documentation of the address shall be retained only ...

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