United States District Court, C.D. Illinois
AMENDED MERIT REVIEW ORDER
BILLY MCDADE, UNITED STATES DISTRICT JUDGE.
proceeding pro se, filed a complaint under § 1983
alleging deliberate indifference to his serious medical needs
and inhumane conditions of confinement at the Pontiac
Correctional Center ("Pontiac")- Plaintiff had
accumulated three strikes for filing frivolous claims, and
requested leave to proceed in forma pauperis, without pre
paying the filing fee. Due to his 3-strike status, Plaintiffs
request was reviewed under 28 U.S.C.§1915(g), which
provides that a 3-strike plaintiff may not proceed in
forma pauperis unless "under imminent danger of
serious physical injury." On March 22, 2017, the Court
issued its merit review order, dismissing all claims, finding
that Plaintiff had not established imminent danger. The
Seventh Circuit Court of Appeals vacated in part, and
remanded back for further proceedings.
Seventh Circuit agreed that Plaintiff had failed to plead
imminent danger as to his claim that Defendants Melvin, and
Kennedy exacerbated his asthma by refusing to allow him to
possess an inhaler asthma while in segregation. The Court
also found that Plaintiff had failed to plead imminent danger
in his claim that Defendants Melvin and Kennedy subjected him
to unconstitutional conditions of confinement when they
placed, a Plexiglas covering over his door. Plaintiffs
additional claim that Defendants Melvin, Moss, Marano, Haag,
Nelson, Duckworth and Lanterman failed to provide him a
personalized treatment plan or outdoor exercise appears
precluded by the Appellate Court's ruling that a damages
claim of a general "deteriorating mental state"
fails to establish a physical injury under § 1.915(g).
This ruling is also applied to Plaintiffs claim that
conditions in isolation have contributed to a general
deterioration in his mental state. These claims are
Seventh Circuit found, however, that Plaintiff had
sufficiently pled imminent danger in his claim that his
serious mental health needs had been so ignored by Defendants
Moss, Haag and Marano that the only way to receive treatment
was to engage in self-harm. Plaintiff has alleged, further,
that Defendants Moss, a mental health professional, refused
to see him even though aware that Plaintiff was suicidal.
Plaintiff makes the additional claim that Defendant Moss
placed him on suicide watch when he was not suicidal and had
alleged suicidal ideation only to receive care.
case will proceed on Plaintiffs deliberate indifference
claim, against Defendants Moss, Haag and Marano, only.
1. This case shall proceed solely on the federal claim(s)
identified herein. Any claims not identified will not be
included in the case, except in the Court's discretion
upon motion by a party for good cause shown, or by leave of
court pursuant to Federal Rule of Civil Procedure 15.
Defendants Melvin, Nelson, Duckworth, Lanterman and Kennedy
2. The Clerk is directed to send to each Defendant pursuant
to this District's internal procedures: 1) a Notice of
Lawsuit and Request for Waiver of Service; 2) a Waiver of
Service; 3) a copy of the Complaint; and 4) a copy of this
3. 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 on that Defendant and will require that Defendant pay
the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2). If a Defendant no longer works at
the address provided by Plaintiff, the entity for which
Defendant worked at the time identified in the Complaint
shall provide to the Clerk Defendant's current work
address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of
effecting service. Documentation of forwarding addresses will
be maintained only by the Clerk and shall not be maintained
in the public docket nor disclosed by the Clerk.
4. Defendants shall file an answer within the prescribed by
Local Rule. A Motion to Dismiss is not an answer. The answer
it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the
issues and claims identified in this Order.
5. Plaintiff shall serve upon any Defendant who has been
served, but who is not represented by counsel, a copy of
every filing submitted by Plaintiff for consideration by the
Court, and. shall also file a certificate of service stating
the date on which the copy was mailed. Any paper received by
a District Judge or Magistrate Judge that has not been filed
with the Clerk or that fails to include a required
certificate of service will be stricken by the Court.
6. Once counsel has appeared for a Defendant, Plaintiff need
not send copies of filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file
Plaintiffs document electronically and send notice of
electronic filing to defense counsel. The notice of
electronic filing shall constitute notice to Defendant
pursuant to Local Rule 5.3. If electronic service on
Defendants is not available, Plaintiff will be notified and
7. Counsel for Defendants is hereby granted leave to depose
Plaintiff at Plaintiffs place of confinement. Counsel for
Defendants shall arrange the time for the depositions.
8. Plaintiff shall immediately notice the Court of any change
in mailing address or phone number. The Clerk is directed to
set an internal court deadline 60 days from the entry of this
Order for the Court to check on the ...