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Green v. Kaupas

United States District Court, N.D. Illinois, Eastern Division

July 28, 2014

EDWARD GREEN (# N-83325) Plaintiff,
v.
SHERIFF PAUL KAUPAS, DR. H. HARMSTON, DR. ELAZEGUI ROZEL, and NURSE BARBARA MILLER, Defendants.

ORDER

JAMES F. HOLDERMAN, District Judge.

The motion to dismiss filed by Dr. Elazegui Rozel and Nurse Barbara Miller [27], which defendant Dr. H. Harmston joined, and the motion to dismiss filed by Sheriff Paul Kaupas [16] are denied. The Court revisits its prior denials of Green's requests for counsel. Attorney Catherine Steege (of Jenner & Block LLP, 330 N. Wabash Avenue, Chicago, Illinois, 60611, csteege@jenner.com) is recruited to represent Green in accordance with counsel's trial bar obligations under the District Court's Local Rule 83.37. After investigation, counsel may file an amended complaint within sixty days if this comports with counsel's obligations under Rule 11 of the Federal Rules of Civil Procedure. If counsel is unable to proceed with the complaint on file or file an amended complaint, she should so inform the Court. A status hearing is scheduled for October 14, 2014, at 9:00 a.m.

STATEMENT

Plaintiff Edward Green, who is currently incarcerated at the Dixon Correctional Center, filed this pro se civil rights action against Dr. H. Harmston, Dr. Elazegui Rozel, and Nurse Barbara Miller (medical staff at the Will County Jail) and Paul Kaupas (the Will County Sheriff) based on treatment Green received for a lung condition while he was housed at the Will County Jail. (Compl. pp. 6-8.) Before the Court are motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Dr. Rozel (referred to in the motion as "Dr. Elazegui") and Nurse Miller, which Dr. Harmston joined, and a motion to dismiss filed by Sheriff Kaupas. For the following reasons, both motions are denied. In addition, the Court revisits its prior denials of Green's requests for counsel and recruits counsel to represent Green.

BACKGROUND

The Court draws the following facts from Green's complaint (Dkt. 1) and accepts them as true for purposes of the motion to dismiss. See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). In addition, the Court will construe Green's allegations liberally because he is proceeding pro se. See Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014).

Green is an Illinois state prisoner who is currently incarcerated at the Dixon Correctional Center but was confined at the Will County Jail at all times relevant to this action. (Compl. p. 6.) Dr. Harmston, Dr. Rozel, and Nurse Miller treated Green while he was at the Will County Jail. ( Id. pp. 7-7a.). Will County Sheriff Paul Kaupas is in charge of the Will County Jail. (Id. p. 7.)

On November 1, 2011, Green was arrested and transported to the Will County Jail. ( Id. p. 6.) He advised the intake staff about his medications, including Letairis, a prescription drug used to treat pulmonary arterial hypertension. ( Id. ) This is a chronic, life-threatening lung condition that causes the pulmonary arteries in the lungs to narrow and places Green at high risk for pulmonary embolisms. ( Id. ) Green told the intake staff that he had been taking Letairis for approximately four months prior to his incarceration to treat his lung condition, that "[i]t real[ly] helped [him] in avoiding pulmonary embolisms, " and that without the Letairis, he believed that his condition would worsen. ( Id. )

Two months passed, and Green did not receive Letairis despite his repeated requests to Dr. Harmston and Dr. Rozel for this medication. ( Id. ) When he asked Nurse Miller about Letairis and discussed his health concerns with her, she told him that the jail was not permitted to dispense Letairis. ( Id. ) On December 20, 2011, Green wrote to Sheriff Kaupas to advise him about his condition and the lack of a prescription for Letairis but Kaupas did not respond to Green's request for help. ( Id. p. 7.)

In January 2012, Green had a "medical episode" that caused him to have "blood pouring from [his] lungs." ( Id. p. 6.) Correctional officers quickly summoned aid, and Green was taken to the hospital by ambulance and placed in the Intensive Care Unit, where he was successfully treated. ( Id. pp. 6-7.) Dr. Labaidy, Green's personal pulmonologist, visited Green multiple times during Green's hospitalization. ( Id. ) Dr. Labaidy believed that Green needed to continue therapy with Letairis, and when Green was transported back to the Will County Jail, Dr. Labaidy advised "jail personnel" accordingly. ( Id. p. 7.) Dr. Labaidy gave Green a 30-day supply of Latairis in June of 2011, and jail staff dispensed it to Green despite the prior representations that this medication could not be dispensed in the Will County Jail. ( Id. p. 7a.)

Green was subsequently transferred to the Dixon Correctional Center. ( Id. p. 3.) He filed a grievance about the medical care he received at the Will County Jail but did not receive a ruling due to his transfer to state custody. ( Id. )

In June 2013, Green filed this civil rights action pursuant to 42 U.S.C. ยง 1983 in the United States District Court for the Northern District of Illinois, Western Division, where the Dixon Correctional Center is located. (Dkt. 1.) The Court found that the Eastern Division was a more convenient venue because the events underlying the complaint all took place while Green was confined at the Will County Jail, which is located in the Eastern Division. (Dkt. 6.) After the case was transferred to the Eastern Division, this Court denied Green's request to recruit counsel to represent him based on its finding that Green had articulated cognizable claims and appeared to be capable of litigating this matter on his own. (Dkt. 9.) The Court, however, noted that it would consider revisiting this issue later if appropriate. ( Id. )

Next, Sheriff Kaupas filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 16.) In response, Green wrote the Court to request the recruitment of counsel, and the Court again declined to recruit counsel. (Dkt. 24.) Dr. Rozel and Nurse Miller then filed their own Rule 12(b)(6) motion to dismiss (Dkt. 27), which Dr. Harmston joined (Dkt. 42, 44). In the meantime, Green renewed his motion for recruitment of counsel for a third time, asserting that his shortness of breath and fatigue hampered his ability to go to the prison library and stating that he was on supplemental oxygen at all times. (Dkt. 32.) The Court again declined to recruit counsel. (Dkt. 33.)

In March 2014, Green sought an extension of time to respond to the pending motions to dismiss. (Dkt. 48.) In support, he alleged that his illness continued to hamper his ability to go to the prison library. The Court extended the date for Green to respond but stated that if he failed to file a timely response, it would rule on the motions without the benefit of his views. (Dkt. 50.) Green did not file a response as ordered by the Court. On July 9, 2014, the Court ordered Green to show cause why his case should not be dismissed for want of prosecution. (Dkt. 53.) A letter from Green dated July 3, 2014, crossed in the mail with the Court's July 9th order, and was filed on July 16, 2014. (Dkt. 54.) Green repeated his request for counsel, stated that he did not believe he could "argue [his] case" due to his health, enclosed ...


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