United States District Court, C.D. Illinois
MERIT REVIEW AND MANAGEMENT ORDER
plaintiff, proceeding pro se, and currently
incarcerated in the Pontiac Correctional Center
(“Pontiac”), was granted leave to proceed in
forma pauperis. The case is now before the court for a
merit review of plaintiff's claims. The court is required
by 28 U.S.C. § 1915A to “screen” the
plaintiff's complaint, and through such process to
identify and dismiss any legally insufficient claim, or the
entire action if warranted. A claim is legally insufficient
if it “(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A.
reviewing the complaint, the court accepts the factual
allegations as true, liberally construing them in the
plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 649 (7thCir. 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)(citation omitted). The court
has reviewed the complaint and has also held a merit review
hearing in order to give the plaintiff a chance to personally
explain his claims to the court.
plaintiff filed this lawsuit pursuant to 42 U.S.C. §
1983 alleging that he developed enlarged breasts
(gynecomastia) and nipples, and experienced chest pain as a
side effect of a medication (Risperdal) he was prescribed
from 2004 until 2016 for schizophrenia and bi-polar disorder.
Plaintiff alleges that no treating physician informed him of
the side effects of Risperdal, and if so informed, he would
not have taken the drug. Plaintiff alleges that Defendant
McCormick, a physician, treated him from February 2016
through at least July 2016, prescribed Risperdal, and failed
to advise the plaintiff of the side effects.
construed, plaintiff states an Eighth Amendment claim for
deliberate indifference to a serious medical need. Plaintiff
will, however, need to show more than negligence to prevail
in the later stages of litigation. See McGee v.
Adams, 721 F.3d 474, 481 (7th Cir.
2013)(“Even gross negligence is insufficient to impose
constitutional liability.”). In addition, the Seventh
Circuit has acknowledged that prisoners may have a
substantive due process right “to such information as
is reasonably necessary to make an informed decision to
accept or reject proposed treatment.” Cox v.
Brubaker, 558 Fed.Appx. 677, 678-79 (7th
Circ. 2014)(citations omitted). On that basis, plaintiff also
states a Fourteenth Amendment due process claim for the
alleged failure of Defendant McCormick to inform him of the
potential side effects of the prescribed medication. Finally,
plaintiff states a claim against Wexford Health Sources, Inc.
(“Wexford”), for the allegations that his
injuries were caused by an alleged policy or practice.
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the court finds that the plaintiff states an
Eighth Amendment claim for deliberate indifference to a
serious medical need against defendant Dr. McCormick and
Wexford, and a Fourteenth Amendment Due Process Claim against
defendant Dr. McCormick. 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.
case is now in the process of service. The plaintiff is
advised to wait until counsel has appeared for the defendants
before filing any motions, in order to give the defendants
notice and an opportunity to respond to those motions.
Motions filed before defendants' counsel has filed an
appearance will generally be denied as premature. The
plaintiff need not submit any evidence to the court at this
time, unless otherwise directed by the court.
court will attempt service on the defendants by mailing each
defendant a waiver of service. The defendants have 60 days
from the date the waiver is sent to file an answer. If the
defendants have not filed answers or appeared through counsel
within 90 days of the entry of this order, the plaintiff may
file a motion requesting the status of service. After the
defendants have been served, the court will enter an order
setting discovery and dispositive motion deadlines.
respect to a defendant who no longer works at the address
provided by the 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
defendants shall file an answer within 60 days of the date
the waiver is sent by the clerk. 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. In
general, an answer sets forth the defendants' positions.
The court does not rule on the merits of those positions
unless and until a motion is filed by the defendants.
Therefore, no response to the answer is necessary or will be
district uses electronic filing, which means that, after
defense counsel has filed an appearance, defense counsel will
automatically receive electronic notice of any motion or
other paper filed by the plaintiff with the clerk. The
plaintiff does not need to mail to defense counsel copies of
motions and other papers that the plaintiff has filed with
the clerk. However, this does not apply to discovery requests
and responses. Discovery requests and responses are not filed
with the clerk. The plaintiff must mail his discovery
requests and responses directly to defendants' counsel.
Discovery requests or responses sent to the clerk will be
returned unfiled, unless they are attached to and the subject
of a motion to compel. Discovery does not begin until defense
counsel has filed an appearance and the court has entered a
scheduling order, which will explain the discovery process in
Counsel for the defendants is hereby granted leave to depose
the plaintiff at his place of confinement. Counsel for the
defendants shall arrange the time for the deposition.
plaintiff shall immediately notify the court, in writing, of
any change in his mailing address and telephone number. The
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.
9. 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. Marshals service on that defendant and will require that
defendant to pay the ...