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Tisdale v. Wexford Health Sources, Inc.

United States District Court, C.D. Illinois

March 13, 2017

ERNIE TISDALE, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., et al., Defendants.

          MERIT REVIEW AND MANAGEMENT ORDER

          HAROLD A. BAKER UNITED STATES DISTRICT JUDGE

         The plaintiff, proceeding pro se, and currently incarcerated at the Western Illinois Correctional Center, 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.

         In 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.

         The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that he suffers from a hernia and that prison officials have refused to send him to an outside specialist despite his complaints that his condition is getting worse.

         Plaintiff states a claim for deliberate indifference to a serious medical need. See Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (refusal to engage specialist and persistence in a course of treatment known to be ineffective can support an inference of deliberate indifference).

         Plaintiff filed a motion for injunctive relief. A preliminary injunction is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); accord Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right”). To prevail, “the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a lack of an adequate remedy at law; and (3) an irreparable harm will result if the injunction is not granted.” Foodcomm Int'l v Barry, 328 F.3d 300, 303 (7th Cir. 2003) (citations omitted). If the moving party meets the first three requirements, then the district court balances the relative harms that could be caused to either party. Incredible Tech., Inc. v. Virtual Tech., Inc., 400 F.3d 1007, 1011 (7th Cir. 2005).

         The defendants in this case have not yet been served. The Court cannot enter a preliminary injunction at this time because Rule 65(a) of the Federal Rules of Civil Procedure states that a court “may issue a preliminary injunction on only on notice to the adverse party.” Fed.R.Civ.P. 65(a). The Court may issue a temporary restraining order without notice to an adverse party, but only upon a showing that “immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition, ” and presentation of a written certification as to the efforts that have been made to notify the adverse party and the reasons why notice should not be required. Fed.R.Civ.P. 65(b). Plaintiff has presented neither.

         Plaintiff has also not shown that he will suffer irreparable harm if an injunction does not issue. Therefore, plaintiff's request for injunctive relief is denied at this time but may be consolidated with the other matters for a trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2).

         IT IS THEREFORE ORDERED:

         1. 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 the named defendants. 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.

         2. This 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.

         3. The 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.

         4. With 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 the clerk.

         5. The 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 ...


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