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Ruffin v. Ahmed

United States District Court, S.D. Illinois

January 10, 2020

MWAMBA M. RUFFIN, Plaintiff,
v.
FAIYAZ AHMED, DR. RITZ, VIPIN K. SHAH, WEXFORD HEALTH SOURCES, INC., and JOHN BALDWIN, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE

         This matter is before the Court on Plaintiff's motion for not to dismissal (Doc. 13). On November 19, 2019, this case was severed from Ruffin v. Trotter, No. 19-cv-896-SMY. It involves the claims in Counts 3 and 4 in the original case, described as follows:

Count 3: Eighth Amendment claim against Defendants Faiyez Ahmed, Dr. Ritz, Vipin K. Shah, Wexford Health Sources, Inc., and John Baldwin for their deliberate indifference to Plaintiff's painful left shoulder mass and infection at Lawrence.
Count 4: Illinois medical negligence claim against Defendants Ahmed, Ritz, Shah, Wexford, and Baldwin for delaying or denying Plaintiff medical care and surgery for a painful left shoulder lipoma and infection at Lawrence.

         Plaintiff was ordered to inform the Court in writing by December 26, 2019, as to whether he wished to proceed with his lawsuit and was warned that a failure to respond would result in a dismissal of his case (Doc. 5). Plaintiff did not respond by the deadline and the case was dismissed on January 2, 2020 (Docs. 9 and 12). Plaintiff requests that the Court reconsider that Order. He argues that he filed a response stating his intention to proceed with this lawsuit (Doc. 13, p. 1). The Court notes that the filing he refers to was not filed in the current lawsuit but in his original case (See Trotter Case, Doc. 17). Nevertheless, the Court notes that Plaintiff's “affidavit” in that case does indicate his intentions to pursue this case. Because Plaintiff did inform the Court of his intentions to proceed with this lawsuit, albeit in the wrong case, the Court GRANTS Plaintiff's motion (Doc. 13) and VACATES the Court's dismissal Order (Doc. 9) and Judgment (Doc. 12). The Clerk is also DIRECTED to REINSTATE Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) and motion for counsel (Doc. 3).

         This case is now before the Court for preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b).

         The Complaint

         Plaintiff makes the following allegations with respect to Counts 3 and 4 in the Complaint: Plaintiff has been denied surgery and medical care for a painful left shoulder mass and infection by Defendants Ahmed, Shah, Ritz, Wexford, and Baldwin (Doc. 2, pp. 5-7, 15-22, 25-28, 44-71).

         Discussion

         At this stage, Plaintiff has stated a viable claim for deliberate indifference in Count 3 for the treatment of his lipoma. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (delay in treatment).

         Plaintiff's medical negligence claim in Count 4 derives from the same facts as his federal constitutional claim and will be allowed to proceed at this stage. 28 U.S.C. § 1367(a). To ultimately pursue this claim, before the completion of the summary judgment phase of the case, Plaintiff must file an affidavit stating that “there is a reasonable and meritorious cause” for litigation against the defendants and a physician's report to support the assertions in the affidavit, pursuant to 735 ILCS § 5/2-622. See Young v. United States, ___ F.3d ___, 2019 WL 5691878 (7th Cir. Nov. 4, 2019).

         Pending Motions

         As to Plaintiff's motion for counsel (Doc. 4), Plaintiff states that he has written a number of attorneys, but they have declined to take his case. Given the early stage of the litigation, however, it is difficult to accurately evaluate the need for the assistance of counsel. See Kadamovas v. Stevens, 706 F.3d 843, 845 (7th Cir. 2013) (“[U]ntil the defendants respond to the complaint, the plaintiff's need for assistance of counsel ... cannot be gauged.”).[1] Further, counsel is not needed at this time because the defendants have not yet been served and a discovery schedule has not been entered. Thus, Plaintiff's motion for counsel (Doc. 4) is DENIED without prejudice. Plaintiff may renew his request for the recruitment of counsel at a later date.

         D ...


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