July 11, 2013
DENNIS SCOTT, Plaintiff,
TRAVIS SMITH and SERGEANT KERR, Defendants.
SUE E. MYERSCOUGH, District Judge.
Plaintiff, proceeding pro se and detained in the Rushville Treatment and Detention Center, seeks leave to proceed in forma pauperis.
The "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc. , 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis "at any time" if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint states a federal claim. A hearing was scheduled to assist in this review, but the hearing will be cancelled as unnecessary.
In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour, ___ F.3d ___, 2013 WL 3336713 * 2 (7th Cir. 2103). However, conclusory statements are insufficient. Enough facts must be provided to "state a claim for relief that is plausible on its face.'" Alexander v. U.S., 2013 WL 3215667 *2 (7th Cir. 2013)(quoted cite omitted).
Plaintiff alleges that Defendants intentionally and without justification prevented Plaintiff from receiving Plaintiff's dialysis treatment for five continuous days in March 2013. A plausible claim for deliberate indifference to Plaintiff's serious medical needs arises from this alleged fact alone. Accordingly, this case will be sent for service.
IT IS ORDERED:
1. The hearing scheduled for July 15, 2013, is cancelled. The clerk is directed to notify Rushville Treatment and Detention Center of the cancellation.
2. Plaintiff's Motion's for Leave to Proceed in Forma Pauperis (d/e 2) is granted. Pursuant to its review of the Complaint, the Court finds that Plaintiff states a federal constitutional claim that Defendants were deliberate indifferent to Plaintiff's serious need for kidney dialysis in March 2013. This case proceeds solely on the claims identified in this paragraph. 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. 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 through the U.S. Marshal's 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).
4. 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 effectuating 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.
5. 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 shall be to the issues and claims stated in this Opinion.
6. Plaintiff shall serve upon any Defendant who has been served but who is not represented by counsel a copy of every filing submitted by Plaintiff for consideration by the Court and shall also file a certificate of service stating the date on which the copy was mailed. Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk or that fails to include a required certificate of service shall be struck by the Court.
7. Once counsel has appeared for a Defendant, Plaintiff need not send copies of his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintiff's document electronically and send a notice of electronic filing to defense counsel. The notice of electronic filing shall constitute service on Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not available, Plaintiff will be notified and instructed accordingly.
8. This cause is set for further scheduling procedures under Fed.R.Civ.P. 16 on September 30, 2013 at 9:30 a.m., or as soon as the Court can reach the case, before U.S. District Judge Sue E. Myerscough by telephone conference. The conference will be cancelled if service has been accomplished and no pending issues need discussion. Accordingly, no writ shall issue for Plaintiff's presence unless directed by the Court.
9. Counsel for Defendants is hereby granted leave to depose Plaintiff at his place of confinement. Counsel for Defendants shall arrange the time for the deposition.
10. Plaintiff shall immediately notify the Court, in writing, of any change in his mailing address and telephone number. Plaintiff's failure to notify the Court of a change in mailing address or phone number will result in dismissal of this lawsuit, with prejudice.
11. Plaintiff's motion for the appointment of counsel is denied as premature (d/e 3). The Court cannot consider the merits of the motion until Plaintiff shows that he has made reasonable efforts to find counsel on his own. Pruitt v. Mote , 503 F.3d 647, 654-55 (7th Cir. 2007). Typically, a plaintiff makes this showing by writing to several different law firms and attaching the responses to the motion for appointment of counsel.
12. Plaintiff's motion to reconsider the clerk's request for reimbursement for copying costs before sending Plaintiff a copy of the local rules is granted in part (d/e 9). Plaintiff asserts that he does not have enough money to pay for a copy of the local rules. The clerk will be directed to send Plaintiff a copy of Local Rule 16.3, which explains pretrial procedures in cases like this one.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) attempt service on Defendants pursuant to the standard procedures; and 2) send Plaintiff a copy of Local Rule 16.3.
RULE 16.3 PRETRIAL PROCEDURES IN PRISONER AND DETAINEE CASES
The following procedures apply to civil cases filed by prisoners and civil detainees proceeding pro se. For purposes of this section, a "prisoner" is a person defined in 28 U.S.C. § 1915(h). A "civil detainee" is a person held in detention or committed to civil law, including but not limited to persons detained or civilly committed pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1 et seq., or the Illinois Sexually Dangerous Persons Act, 725 ILCS 205/0.01 et seq.
(1) Upon written request, the clerk of this court will provide each pro se plaintiff with a complaint form, a petition to proceed in forma pauperis and an instruction sheet. The plaintiff is not required to use the court's complaint form. No complaint will be rejected for filing because of improper form or because of failure to comply with Local Rules. However, failure to comply with Local Rules may result in dismissal of the plaintiff's case by the Court.
(2) The plaintiff's complaint may be handwritten or typed. However, the original complaint, as well as all pleadings, must be legible and signed by the plaintiff. If there is more than one plaintiff, each must sign the complaint. A complaint need not be notarized. However, if the complaint contains false statements of material fact, the plaintiff may be subject to dismissal of the case or other sanctions.
(3) All copies of the original complaint provided by the plaintiff must be carbon copies or photocopies. No other copies, such as handwritten copies, will be accepted.
(4) The complaint should set forth a short and plain statement of the plaintiff's claim(s) showing that the plaintiff is entitled to relief. A short statement of names, dates and facts about what each defendant did will usually be enough. Legal argument and case citations are not necessary. If the Court requires additional information about a claim, the plaintiff will be ordered to provide a more complete statement. The complaint should also state what relief the plaintiff seeks, and if known, the grounds for the court's jurisdiction.
(5) The complaint should include the full first and last name of each defendant to be served and a full address where that defendant may be served, usually a work address. Failure of the plaintiff, without good cause, to timely and adequately identify a defendant for service will result in dismissal of that defendant from the case.
(6) The plaintiff should mail the complaint, along with the filing fee or the petition to proceed in forma pauperis, together in one package to: CLERK, U.S. DISTRICT COURT in the division in which the claim arose.
(7) The clerk will file the complaint upon receipt, regardless of the form of the complaint and regardless of whether the complaint is accompanied by payment of the filing fee or a petition to proceed in forma pauperis.
(B) Payment of Fees and Other Costs
(1) If the plaintiff files a complaint without the filing fee or a petition to proceed in forma pauperis, a deficiency order will enter directing the plaintiff to either pay the filing fee or file a petition to proceed in forma pauperis. Failure to comply will result in dismissal of the case.
(2) If the plaintiff is a prisoner under 28 U.S.C. § 1915(h) and files a petition to proceed in forma pauperis which demonstrates inability to pay the filing fee, the petition will be granted and an initial partial filing fee will be assessed in accordance with 28 U.S.C. § 1915(b). The agency having custody of the plaintiff will be directed to pay the initial partial filing fee from the plaintiff's prison account and to forward monthly payments from that account in accordance with 28 U.S.C. § 1915(b). If the plaintiff is not a prisoner under 28 U.S.C. § 1915(h), this provision does not apply.
(3) All requests for file-stamped copies of documents must be accompanied by a stamped, self-addressed envelope and an extra copy to be file-stamped and returned.
(4) Security for Costs
(a) In any case removed to this court under the provisions of 28 U.S.C. §§ 1441 or 1443 in which the plaintiff is a pro se prisoner who has been barred from proceeding in forma pauperis under the provisions of 28 U.S.C. § 1915(g), and who does not meet the exception of that section, the court may require security from the plaintiff for payment of costs.
(b) The court may require security for payment of costs from any plaintiff, regardless of whether that plaintiff is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g), where the court determines that such plaintiff: 1) has filed three or more prior actions in federal court that were dismissed as frivolous, malicious, or for failure to state a federal claim for relief; or, 2) has unpaid costs or sanctions assessed in a prior federal case. This section does not limit the court's power to require security in other appropriate cases.
(c) The security may be in the form of cash or a surety bond with corporate or justified sureties acceptable to the court. Failure by the plaintiff to provide the required security may result in the dismissal of the action.
(C) Case Management Order
If practicable, the Court will conduct a review of the complaint before service is ordered, and enter a Case Management Order delineating the viable claims stated, if any. At any time a Case Management Order is issued by the court defining the remaining claims in the case, the case will proceed solely on those claims identified in the Case Management Order. Any claims not defined in the Case Management Order will not be included in the case, except in the Court's discretion on motion by a party for good cause shown, or pursuant to Federal Rule of Civil Procedure 15.
(D) Service of Process
In cases proceeding in forma pauperis, after the complaint is filed and a Case Management Order enters, if any, a Scheduling Order will enter directing service of the complaint. Generally, waivers of service will be sought from the defendants in lieu of personal service. If a defendant fails to return a signed waiver of service, personal service will be attempted on that defendant, with the costs of personal service assessed against that defendant to the extent allowed under the Federal Rules of Civil Procedure.
If the full statutory filing fee is paid, the plaintiff is responsible for arranging for service.
(1) When the State of Illinois, any of its officers, agents, departments or employees is a defendant, a responsive pleading must be filed within 60 days of service or within 60 days of the date the waiver of service was sent, as the case may be. All other defendants, including officers and employees of counties and municipalities, must answer or otherwise plead within 21 days of personal service, or within 60 days after a waiver of service is sent, as the case may be. A motion to dismiss is not an answer. The answer must be considered a responsive pleading under Federal Rule of Civil Procedure 15(a) and should include all defenses appropriate under the Federal Rules. It is the responsibility of the individual named as a defendant to arrange for representation within that time limit. The Court will not extend the time for answer unless exceptional circumstances are shown. Default may be entered against defendants who do not answer within the time limits.
(2) In civil rights cases where the pro se plaintiff is a prisoner or civil detainee, the answer and subsequent pleadings will be to the issues stated in the Case Management Order accompanying the process and complaint, if such an order is entered. A defendant need not parse the complaint and respond to it. If no Case Management Order has entered, the responsive pleading will be to the complaint.
(F) Scheduling Conference
A scheduling order directing service of the complaint will also set the case for a scheduling conference. At the scheduling conference, the parties will be prepared to argue all pending motions; determine whether all parties have been correctly designated and properly served; discuss the course and progress of discovery and resolve any disputes; determine whether a jury demand has been timely filed; set firm dates for the completion of discovery and the filing of case-dispositive motions. At the conclusion of the scheduling conference, the court will set the matter for further status conference or will set scheduling deadlines. Scheduling conferences will be held by telephone or video unless otherwise ordered by the court.
(G) Status Conference
A status conference may be set at any time by the court. At a status conference the parties will be prepared to argue all pending motions; discuss the progress of discovery and resolve any disputes; review dates for the completion of discovery and the filing of case-dispositive motions. Status conferences will be held by telephone or video unless otherwise ordered by the court.
The parties are responsible for filing motions within the deadlines set by the Court. Responses to motions must be filed within 14 days, or a party must file a timely motion for extension of time to respond, that is within the time set for response. Motions to file "instanter" are not viewed favorably by the Court and will not be allowed routinely. Motions will not be specially set or noticed for hearing. The court may rule on any motion after the time for response has passed, whether a response is on file or not. At his or her discretion, the presiding judge may set any motion for hearing.
(I) Final Pretrial Conference
(1) As soon as practicable after the close of discovery and the resolution of dispositive motions, the presiding judge will set the case for final pretrial conference. All discovery MUST BE COMPLETED before the conference is held. Appropriate sanctions will be imposed upon any party failing to complete discovery as ordered. No case-dispositive motions will be accepted after the cut-off date for the filing of such motions, except by leave of court and a showing of extraordinary circumstances, e.g., a recently decided relevant court opinion or newly discovered evidence that with due diligence could not have been found during the time allotted for discovery. The conference must be by personal appearance, by telephone, or by video as directed by the Court, with the plaintiff, if not represented, and with the attorneys who will try the case.
(2) The following documents are to be prepared and exchanged between the litigants, BUT NOT FILED WITH THE COURT, at least 30 days before the date set for the final pretrial conference.
(a) A statement of uncontested facts.
(b) A statement of contested issues of fact and law.
(c) An itemized statement of damages (plaintiff only).
(d) A list of names and addresses of witnesses that each party intends to call to testify at trial, including the names of expert witnesses.
(e) A list of names and addresses of witnesses for whom subpoenas are requested, and a brief summary of the expected testimony of each such witness.
(f) A list of names, registration numbers (if applicable), and addresses of prisoner or detainee witnesses from whom writs of habeas corpus ad testificandum are requested, and a brief summary of the facts to which each such witness will testify.
(g) A list of exhibits, sequentially numbered, which each party intends to offer into evidence.
(h) A list of all demonstrative aids to be used at the trial.
(3) An attorney for the defendants must prepare a proposed final pretrial order based on the documents described above and must file the proposed final pretrial order at least 14 days before the final pretrial conference. A suggested form of the order is included as Appendix 2 to these Rules. As far as is practicable, the litigants are encouraged to resolve any disputes concerning the order prior to the conference. When the plaintiff is represented by counsel, a final, agreed-to order will be presented at the conference.
(4) At the final pretrial conference, the presiding judge and the litigants will consider the following:
(a) The prospects of settlement. Plaintiff will make a definite demand for settlement and defendants will have authority to make a definite offer of settlement.
(b) Simplification of the issues for trial;
(c) The final witness lists, including the issuance of subpoenas and writs for witnesses;
(d) Any problems of evidence;
(e) Limitation on the number of expert witnesses;
(f) The desirability and timing of trial briefs;
(g) Such other matters that may aid in the fair and expeditious trial and disposition of the action;
(h) The estimated length of trial.
(5) In cases to be tried to a jury, the parties will submit an agreed set of jury instructions, unless otherwise directed by the court. Instructions upon which the parties are unable to agree will be submitted separately by each party, unless excused by the presiding judge. Each instruction will be appropriately numbered and on a separate sheet of 8 ½" by 11" (letter size) paper; will cover no more than one subject; will identify the source and authority upon which it is based; and will have the name of the party submitting it noted at the bottom of the page.
(6) Changes or amendments to the proposed final pretrial order will be made at the final pretrial conference. At the close of the pretrial conference, the parties and the presiding judge will sign the pretrial order. The court may direct that the parties' signatures be electronically affixed to the final pretrial order if the parties have not appeared in person for the final pretrial conference. The signed pretrial order takes the place of all prior pleadings. Any issue not contained in the final pretrial order WILL NOT BE TRIED. The parties are cautioned to consider the contents of the order very carefully, especially as to jury demand, types of damages sought, claims and defenses.
(7) A sample form of pretrial order is contained in Local Rules Appendix 2. The parties are cautioned to conform their pretrial order to the sample format.
Failure of counsel or parties, if not represented by counsel, to appear at any scheduled pretrial conference, including telephone conferences, or otherwise to comply with the provisions of this Rule, may result in dismissal, default, awarding of attorney's fees and costs and such other sanctions as may be appropriate.
(K) Change of Address
Every pro se plaintiff must notify the clerk of this court in writing of any change of address during the entire pendency of his case. Failure to notify the clerk of a change of address will result in the dismissal of the case.
A plaintiff may request a waiver of any of the provisions of this rule by filing a motion with the clerk of this court stating in brief what requirements the plaintiff wants waived and why. The Court will consider each motion individually; however, motions to waive these requirements will not be routinely allowed.