Abernathy v. Myers

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

EDWARD ABERNATHY, )

)

Plaintiff, )

)

18-1432

v. )

)

PICKNEYVILLE MEDICAL STAFF, et al.

)

)

Defendants.

)

MERIT REVIEW AND CASE MANAGEMENT ORDER

The plaintiff, proceeding pro se, and currently incarcerated at

Pickneyville Correctional Center, was granted leave to proceed in

forma pauperis. The case is now before the court for a merit review

of plaintiff’s claims. The court is required by 28 U.S.C. § 1915A to

“screen” the plaintiff’s amended complaint, and through such

process to identify and dismiss any legally insufficient claim, or the

entire action if warranted. A claim is legally insufficient if it “(1) is

frivolous, malicious, or fails to state a claim upon which relief may

be granted; or (2) seeks monetary relief from a defendant who is

immune from such relief.” 28 U.S.C. § 1915A.

In reviewing the complaint, the court accepts the factual

allegations as true, liberally construing them in the plaintiff's favor.

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 (7th Cir. 2013)(citation

omitted).

The Court dismissed Plaintiff’s original complaint and granted

him leave to amend. Thereafter, Plaintiff filed several motions and

documents with the Court that appear to be an attempt to sue

numerous officials at Pickneyville. In his first amended complaint,

Plaintiff alleges that he suffers from hearing loss and “bodily pain”

that he believes are symptoms of dementia. Plaintiff alleges that

M.D. Myers and C. Brown have provided inadequate treatment for

these conditions and that they have not adequately tested him for

dementia. (Doc. 35 at 5-9). Based on these allegations, Plaintiff

states a claim for deliberate indifference to a serious medical need

against M.D. Myers and C. Brown. Petties v. Carter, 836 F.3d 722,

729-30 (7th Cir. 2016) (en banc).

Plaintiff also alleges generally that he has been retaliated

against, that he has had trouble using the grievance process, and

that his mail has been opened and copied. Id. Plaintiff does not

identify any specific prison officials responsible for these incidents,

and, therefore, these allegations will be dismissed without prejudice

to amendment.

Plaintiff also filed several motions that appear to be an attempt

to add claims to this lawsuit. (Docs. 34, 36, 37). If Plaintiff desires

to amend his complaint, he must file a proposed amended

complaint that lists all claims against all defendants he wants to

sue. The Court does not accept partial complaints or piecemeal

amendments. Plaintiff’s motions are denied without prejudice.

Finally, Plaintiff filed two motions that seek injunctive relief.

(Docs. 38, 41). Plaintiff alleges that the medical services at

Pickneyville are inadequate, and he seeks an order directing prison

officials to send him to an outside facility or specialist to diagnose

him with dementia, and to treat his knees and other pain. As

explained in the Court’s previous order, the Court cannot order

injunctive relief before defendants have been served or without a

showing as to why defendants should not be served. Fed. R. Civ. P.

65(a). Plaintiff has not made the latter showing. Further, Plaintiff

has not described the medical treatment he has received for these

conditions. At best, Plaintiff has presented his opinion that the

diagnostic testing he has received is outdated and otherwise

inadequate. This is not sufficient to show a reasonable likelihood of

success of the merits. See McDonald v. Hardy, 821 F.3d 882, 888

(7th Cir. 2016) (claims of negligence, medical malpractice, or

disagreement with a prescribed course of treatment are not

sufficient to show deliberate indifference); Foodcomm Int’l v Barry,

328 F.3d 300, 303 (7th Cir. 2003) (a movant seeking injunctive

relief must show, among other things, a reasonable likelihood of

success on the merits). Plaintiff’s motions are denied.

It is therefore ordered:

1. Plaintiff’s Motion [35] is granted to the extent that

Plaintiff seeks leave to file an amended complaint and denied as to

any other relief requested. Clerk is directed to docket the amended

complaint, [35] at 5-9, attached to that order.

2. Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the court finds that the plaintiff states an Eighth

Amendment claim for deliberate indifference to a serious medical

need against M.D. Myers and C. Brown. 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.

3. This case is now in the process of service. The plaintiff is

advised to wait until counsel has appeared for the defendants

before filing any motions, in order to give the 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. The plaintiff need not submit any evidence to the

court at this time, unless otherwise directed by the court.

4. The court will attempt service on the defendants by

mailing each defendant a waiver of service. The defendants have 60

days from the date the waiver is sent to file an answer. If the

defendants have not filed answers or appeared through counsel

within 90 days of the entry of this order, the plaintiff may file a

motion requesting the status of service. After the defendants have

been served, the court will enter an order setting discovery and

dispositive motion deadlines.

5. With respect to a defendant who no longer works at the

address provided by the 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.

6. The 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 the defendants' positions. The court does not rule

on the merits of those positions unless and until a motion is filed by

the defendants. Therefore, no response to the answer is necessary

or will be considered.

7. 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 the plaintiff with the clerk. The plaintiff does not need to

mail to defense counsel copies of motions and other papers that the

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. The 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.

8. Counsel for the defendants is hereby granted leave to

depose the plaintiff at his place of confinement. Counsel for the

defendants shall arrange the time for the deposition.

9. The plaintiff shall immediately notify the court, in

writing, of any change in his mailing address and telephone

number. The 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.

10. 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 through the U.S.

Marshals 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).

11. The clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability and

Accountability Act.

12. The clerk is directed to add M.D. Myers and C. Brown as

defendants and attempt service via the standard procedures.

13. The clerk is directed to terminate Pickneyville Medical

Staff as a defendant.

14. Plaintiff’s motions [34][36][37][38][41] are denied for the

reasons stated above.

15. Plaintiff’s motion for counsel [30] is denied, with leave to

renew upon demonstrating that he made attempts to hire his own

counsel. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This

typically requires writing to several lawyers and attaching the

responses. If Plaintiff renews his motion, he should set forth how

far he has gone in school, any jobs he has held inside and outside

of prison, any classes he has taken in prison, and any prior

litigation experience he has.

Entered this 27th day of June, 2019.

/s/Harold A. Baker

___________________________________________

HAROLD A. BAKER

UNITED STATES DISTRICT JUDGE