United States District Court, C.D. Illinois
MERIT REVIEW AND CASE MANAGEMENT ORDER
E. SHADID UNITED STATES DISTRICT JUDGE.
cause is before the Court for merit review of the
Plaintiff's complaint and consideration of his motion for
appointment of counsel. .
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.
Plaintiff, a pro se prisoner, says his constitutional rights
were violated at Jacksonville Correctional Center by Wexford
Healthcare and Dr. Goodman. Plaintiff was injured while
working at the facility on January 7, 2015. As a result,
Plaintiff has suffered with “extreme pain throughout
his back and down his legs.” (Comp., p. 4).
Nonetheless, Dr. Goodman failed to take x-rays or even fully
examine Plaintiff. Plaintiff says he has made several
requests for medical care and admits he has received some
pain relievers, but he claims Dr. Goodman has refused to
provide any other treatment. Consequently, Plaintiff's
condition has deteriorated” over the last two years.
(Comp., p. 5).
establish an Eighth Amendment violation, Plaintiff must
demonstrate he suffered from a serious medical condition and
the Defendant was deliberately indifferent to that condition.
See Farmer v Brennan, 511 U.S. 825 (1994). An inmate
may demonstrate a medical professional was deliberately
indifferent if he presents “evidence that the patient
repeatedly complained of enduring pain with no modifications
in care.” Petties v. Carter, 836 F.3d 722, 731
(7th Cir. 2016). Plaintiff has alleged Dr. Goodman
violated his Eighth Amendment rights. However, Plaintiff has
not articulated an official capacity claim against Dr.
Goodman's employer, Wexford Healthcare. Therefore, the
Court will dismiss Defendant Wexford.
Court notes Plaintiff's injury occurred outside the two
year statute of limitations period, but Plaintiff has alleged
he suffered from a continuing violation of his constitutional
rights. See Jervis v. Mitcheff, 258 Fed.Appx. 3, 5-6
(7th Cir. 2007) (“Deliberate indifference to
a serious medical need is a continuing violation that accrues
when the defendant has notice of the untreated condition and
ends only when treatment is provided or the inmate is
released.”). However, Plaintiff‘s complaint
indicates his current address is Taylorville Correctional
Center. (Comp., p. 1). Therefore, his claim before this Court
is limited to his medical care from his injury to his
transfer to another facility.
addition, it is unclear from Plaintiff's complaint
whether Plaintiff exhausted his administrative remedies for
his claim before filing his lawsuit. Plaintiff has checked
the box on his complaint form indicating he completed the
grievance procedure. (Comp., p. 3). Nonetheless, Plaintiff
attached only partial grievances to his complaint. Defendants
may choose to address this issue in a motion for summary
Plaintiff has filed a motion for appointment of counsel.
Plaintiff has no constitutional right to the appointment of
counsel and the Court cannot require an attorney to accept
pro bono appointment in a civil case. The most the Court can
do is ask for volunteer counsel. See Jackson v. County of
McLean, 953 F.2d 1070, 1071 (7th Cir. 1992).
Nonetheless, in considering Plaintiff's motion, the Court
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 (7thCir. 2007), citing Farmer v.
Haas, 990 F.2d 319, 322 (7th Cir. 1993).
Plaintiff states he has written letters to attorneys, but he
has not provided evidence of a reasonable attempt to find
counsel on his own such as a copy of any letters sent or
received or a list of attorneys contacted. Therefore, his
motion is denied with leave to renew.
THEREFORE ORDERED that:
Pursuant to its merit review of the complaint under 28 U.S.C.
§ 1915A, the Court finds the Plaintiff alleges Dr.
Goodman was deliberately indifferent to his back and leg pain
in violation of Plaintiff's Eighth Amendment rights. The
claim is stated against the Defendant in this individual
capacity only. 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. Plaintiff is advised
to wait until counsel has appeared for Defendants before
filing any motions, in order to give 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. Plaintiff need not submit
any evidence to the Court at this time, unless otherwise
directed by the Court.
Court will attempt service on Defendants by mailing each
Defendant a waiver of service. Defendants have 60 days from
service to file an Answer. If Defendants have not filed
Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting
the status of service. After Defendants have been served, the
Court will enter an order setting discovery and dispositive
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
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 Order. In
general, an answer sets forth Defendants' positions. The
Court does not rule on the merits of those positions ...