The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
NED JAMES, III, )
)
Plaintiff, )
)
v. ) 19-1369
)
PATRICK HORN, et al. )
)
Defendants. )
MERIT REVIEW AND CASE MANAGEMENT ORDER
The plaintiff, proceeding pro se, and currently incarcerated at
Joliet Treatment 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 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).
Plaintiff alleges that he was knocked unconscious after falling
into a construction hole while he was incarcerated at Pontiac
Correctional Center. Plaintiff alleges that Defendants Vilt, Brown,
and Harmon escorted inmates through that area despite the fact
that it was marked as off limits. Plaintiff alleges that he was taken
to the healthcare unit, that Defendant Ojelade admitted him for 24-
hour observation, but that he was not provided any medical
treatment other than being told to drink a lot of water.
Plaintiff states an Eighth Amendment claim against
Defendants Vilt, Brown, and Harmon for the alleged failure to take
reasonable steps to avoid the risks posed by the construction area.
See Anderson v. Morrison, 835 F.3d 681, 683 (7th Cir. 2016).
Plaintiff also states a claim against Defendant Ojelade for deliberate
indifference to a serious medical need. Petties v. Carter, 836 F.3d
722, 729-30 (7th Cir. 2016) (en banc).
Plaintiff does not allege that any of the other defendants were
personally involved in the incidents described above. Plaintiff
cannot sue prison officials just because they are in charge, and,
therefore, Defendants Horn, Baldwin, Wexford Health Director,
Kennedy, and Sokol will be dismissed without prejudice to
amendment. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
It is therefore ordered:
1. 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 against Defendants Vilt, Brown, and Harmon for
failure to address known risks of substantial harm, and an Eighth
Amendment claim against Defendant Ojelade for deliberate
indifference to a serious medical need. 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. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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).
10. The clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability and
Accountability Act.
11. The clerk is directed to terminate Defendants Horn,
Baldwin, Wexford Health Director, Kennedy, and Sokol.
12. The clerk is directed to attempt service on Defendants
Vilt, Brown, Harmon, and Ojelade pursuant to the standard
procedures.
13. Plaintiff’s motion for counsel [5] 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 17th day of January, 2020.
___s_/__ H__a_r_o_l_d_ _A_._ B__a_k_e_r______________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE