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Newman v. Anglin

United States District Court, C.D. Illinois

October 9, 2014

TERRY L. NEWMAN, Plaintiff,
v.
WARDEN K. ANGLIN, et. al., Defendants.

MERIT REVIEW OPINION

SUE E. MYERSCOUGH, District Judge.

The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour , 729 F.3d 645, 649 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "state a claim for relief that is plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).

ALLEGATIONS

The Plaintiff, a pro se prisoner, alleges his constitutional rights were violated at Danville Correctional Center by seven Defendants including Warden K. Anglin, Illinois Department of Corrections (IDOC) Director S.A. Godinez, Health Care Administrator Mary Miller, Dentist Dr. Thomas Burrell, Officer Shackman, Nurse Patty and Dental Assistant Amber Davis. The Plaintiff alleges the Defendants were deliberately indifferent to his serious medical condition when they delayed care for his serious tooth pain.

The Plaintiff says Dentist Dr. Burrell and Assistant Davis attempted to remove one of his teeth on April 22, 2013, but the tooth broke during the procedure. The Plaintiff was given pain medication, but he was still unable to eat or sleep. The Plaintiff was sent to an oral surgeon the next day to have the remainder of the root removed. The surgeon took x-rays and prescribed pain medication and antibiotics, but the Plaintiff claims Dentist Burrell refused to approve surgery.

The Plaintiff has attached several documents to his complaint including the response to his grievance. Danville's Health Care Unit maintains the Plaintiff was sent to the surgeon on April 22, 2013 for a consultation only. The surgery was not scheduled until medical providers could review the possible risks with the Plaintiff and the Plaintiff had signed a consent form. (Comp, 1-1, p. 3, 13). The rest of the Plaintiff's tooth was removed on June 3, 2013. Nevertheless, the Plaintiff maintains his gums were swollen and bleeding, he could not eat, and he suffered in extreme pain for over a month while he waited for the surgery.

ANALYSIS

The Plaintiff has adequately alleged Defendants Burrell, Adams, Miller, Nurse Patty, Schackman, and Davis violated his Eighth Amendment rights when they either refused to provide care for his tooth pain or delayed needed surgery. The Plaintiff states he spoke with each Defendant, but they ignored his complaints.

The Plaintiff only mentions Defendants Warden Anglin and IDOC Director Godinez in the list of Defendants which is not sufficient. See Potter v Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)("Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed, even under the liberal construction to be given pro se complaints."). A defendant cannot be held liable under 42 USC §1983 unless a Plaintiff can demonstrate that the defendant caused or participated in the alleged constitutional violation. McBride v. Soos, 679 F.2d 1223, 1227 (7th Cir. 1982). In addition, the mere fact that a defendant was a supervisor is insufficient to establish liability because the doctrine of respondeat superior (supervisor liability) does not apply to actions filed under 42 USC §1983. Pacelli v. DeVito , 972 F.2d 871, 877 (7th Cir. 1992). Therefore, the court will dismiss Defendants Anglin and Godinez.

The court notes the Plaintiff has also filed a motion to amend his complaint. [6]. However, the document does not include a complete, proposed amended complaint. Instead, the Plaintiff is asking to add claims such as a due process violation for failing to properly respond to his grievance. First, the court does not allow piecemeal amendments. In other words, if the Plaintiff wishes to amend his claims he must file a motion with a proposed amended complaint attached in full. The amended complaint must stand complete on its own, include all claims against all Defendants and not make reference to any previous complaint. Second, a Defendant's failure to respond to a grievance does not rise to the level of a constitutional violation. See Perales v Bowlin, 644 F.Supp.2d 1090, 1100 (N.D. Ill. 2009)(ignoring grievance or failing to investigate does not make an official liable for damages under Sec. 1983). Therefore, the motion to amend is denied. [6]

MOTION FOR COUNSEL

The Plaintiff has filed a motion for the appointment of pro bono counsel.[3] Although there is no right to court appointed counsel in federal civil litigation, district courts may ask attorneys to represent indigent litigants on a volunteer basis. See 28 U.S.C. § 1915(e)(1).

Whether to recruit an attorney is a difficult decision: Almost everyone would benefit from having a lawyer, but there are too many indigent litigants and too few lawyers willing and able to volunteer for these cases. District courts are thus placed in the unenviable position of identifying, among a sea of people lacking counsel, those who need counsel the most. Olson v. Morgan , 750 F.3d 708, 711 (7th Cir. 2014), reh'g denied (May 16, 2014).

In deciding this issue, district courts must ask two questions: "(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?" Pruitt v. Mote , 503 F.3d 647, 654 (7th Cir. 2007), citing Farmer v. Haas , 990 F.2d 319, 322 (7th Cir. 1993). In this case, the Plaintiff has demonstrated an attempt to find counsel on ...


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