United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH, UNITED STATES DISTRICT JUDGE
proceeds pro se from his incarceration in Hill Correctional
Center. His Complaint is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint
or dismiss claims that are not cognizable. In reviewing the
complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor and taking
Plaintiff's pro se status into account. 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
(7thCir. 2013)(quoted cite omitted).
alleges that a delay in diagnosing and treating injuries to
his left arm and both shoulders (ruptured tendons, fractured
collar bone, rotator cuff tear) precluded successful surgery
and caused Plaintiff to suffer severe and unnecessary pain
allegations state a plausible Eighth Amendment claim for
deliberate indifference to Plaintiff's serious medical
needs. Plaintiff has similar claims proceeding in this
district in two other cases-16-cv-4024 and 16-cv-4269-but
this case appears to involve a later time period. In any
event, whether this case overlaps with the other two should
await a more developed record.
Plaintiff cannot sue the State of Illinois. Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989)(State
not a “person” subject to suit under 42 U.S.C.
§ 1983). Additionally, the current allegations do not
state a plausible claim against the IDOC Director, the CEO of
Wexford Health Sources, Inc., or the Director of the Illinois
Department of Healthcare and Family Services. These
individuals cannot be held responsible for the constitutional
violations of their subordinates simply because they are in
charge. Kuhn v. Goodlow, 678 F.3d 552. 556 (7th Cir.
2012)("'An individual cannot be held liable in a
§ 1983 action unless he caused or participated in an
alleged constitutional deprivation.'")(quoted cite
omitted); Chavez v. Illinois State Police, 251 F.3d
612, 651 (7th Cir. 2001)(no respondeat superior liability
under § 1983). And, Dr. Patel is not a state actor under
the present allegations. Dr. Patel is a private physician who
saw Plaintiff once at St. Joseph's hospital in Joliet,
Illinois. Shields v. IDOC, 746 F.3d 782
(7th Cir. 2014)(SIU doctors who saw inmate one
time for consult were not state actors).
IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the Court finds that Plaintiff states an Eighth
Amendment claim for deliberate indifference to his serious
medical needs. This case proceeds solely on the claims
identified in this paragraph. 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
the date the waiver is sent 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 motion deadlines.
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 Opinion. In
general, an answer sets forth Defendants' positions. The
Court does not rule on the merits of those positions unless
and until a motion is filed by Defendants. Therefore, no
response to the answer is necessary or will be considered.
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 Plaintiff with the Clerk. Plaintiff does
not need to mail to Defense counsel copies of motions and
other papers that 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. 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 Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for 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.
Plaintiff's failure to notify the Court of a change in
mailing address or phone ...