United States District Court, S.D. Illinois
MWAMBA M. RUFFIN, Plaintiff,
FAIYAZ AHMED, DR. RITZ, VIPIN K. SHAH, WEXFORD HEALTH SOURCES, INC., and JOHN BALDWIN, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE
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
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.
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).
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).
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).
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).
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).
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.”). 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