Graham-Bey v. Miller et al, No. 2:2015cv02277 - Document 6 (C.D. Ill. 2015)

Court Description: MERIT REVIEW OPINION: Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states a claim for deliberate indifference to his serious medical need for surgery for his hernia. The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to ent er the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The clerk is directed to terminate Defendants Witherspoon, Anglin, and Miller. The clerk is directed to add Dr. Louis Shicker and Wexford Health Sources, Inc., as Defendants. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 12/7/2015. (MJ, ilcd)
Download PDF
Graham-Bey v. Miller et al Doc. 6 E-FILED Monday, 07 December, 2015 04:50:05 PM Clerk, U.S. District Court, ILCD UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS DAVID GRAHAM-BEY, Plaintiff, v. MARY MILLER, et al., Defendants. ) ) ) ) ) ) ) ) ) 15-CV-2277 MERIT REVIEW OPINION SUE E. MYERSCOUGH, U.S. District Judge. Plaintiff proceeds pro se from his incarceration in Graham 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.1 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. 1 A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Page 1 of 7 Dockets.Justia.com 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 (7th Cir. 2013)(quoted cite omitted). Plaintiff alleges that he entered the IDOC in the Spring of 2013 and was diagnosed with a hernia. The hernia allegedly continues to worsen and cause Plaintiff pain, but he has received only a hernia belt, which allegedly exacerbates the problem. Plaintiff has been told that surgery will not be authorized so long as his hernia is reducible. These allegations state a plausible claim for deliberate indifference to Plaintiff’s serious medical needs. Gonzalez v. Feinerman, 663 F.3d 311 (7th Cir. 2011)(failure to provide surgery for inmate with unincarcerated hernia may state a claim). However, no plausible inference arises that the health care administrator (Defendant Miller), nurse practitioner (Defendant Witherspoon) or the warden (Defendant Anglin) have the authority to override the doctor’s decision or the alleged policy on treatment of hernias. The individuals responsible for setting that policy is not in the record yet. At this point, the Court will add as Defendants the IDOC Medical Director (Dr. Louis Shicker) and Wexford Health Sources, Page 2 of 7 Inc., for the purposes of Plaintiff’s challenge to the hernia policy as applied to him. IT IS THEREFORE ORDERED: 1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states a claim for deliberate indifference to his serious medical need for surgery for his hernia. 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. 2) Defendants Witherspoon, Anglin, and Miller are dismissed, without prejudice, for the failure to state a claim against them. 3) Dr. Louis Shicker and Wexford Health Sources, Inc., are added as Defendants. 4) This 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 Page 3 of 7 denied as premature. Plaintiff need not submit any evidence to the Court at this time, unless otherwise directed by the Court. 5) The 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. 6) With 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 the Clerk. 7) 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 Page 4 of 7 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. 8) This 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 more detail. Page 5 of 7 9) 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. 10) 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 number will result in dismissal of this lawsuit, with prejudice. 11) If a Defendants 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 through the U.S. Marshal's service on that Defendant and will require that Defendant to pay the full costs of formal service pursuant to Federal Rule of Civil Procedure 4(d)(2). 12) Within 10 days of receiving from Defendants' counsel an authorization to release medical records, Plaintiff is directed to sign and return the authorization to Defendants' counsel. 13) The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an Page 6 of 7 initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures. 14) The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. 15) The clerk is directed to terminate Defendants Witherspoon, Anglin, and Miller. 16) The clerk is directed to add Dr. Louis Shicker and Wexford Health Sources, Inc., as Defendants. ENTERED: December 7, 2015 FOR THE COURT: s/Sue E. Myerscough SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE Page 7 of 7