Reuter v. Foley

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PERRIN W. REUTER, )

Plaintiff, )

)

vs. ) Case No. 21-1330

)

SALLY FOLEY, et. al., )

Defendants )

MERIT REVIEW ORDER

JAMES E. SHADID, U.S. District Judge:

This cause is before the Court for merit review of the Plaintiff’s complaint. 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.

Plaintiff, a pro se prisoner, claims Defendants Healthcare Administrator Sally

Foley, Sheriff Brian Asbell, Chief Deputy Joseph Needham, and Corrections Supervisor

Ronda Guyton violated his constitutional rights at the Peoria County Jail.

On July 21, 2021, Plaintiff entered the jail with a shoulder which was injured

during his arrest. Apparently, he was first diagnosed with a sprain. Plaintiff says he

received no medical care for two days until he was moved to the medical wing.

Plaintiff asked Defendant Foley repeatedly for pain medication, but he was denied any

pain relief for two weeks. A nurse finally provided Plaintiff with Naproxen, but only

for a few days.

Plaintiff says the swelling in his arm reduced, but the pain did not. Plaintiff says

it was clearer at this point that his shoulder was dislocated. Plaintiff continued to ask

Defendant Foley for additional medical care, but she took no action. Finally, a nurse

approved an x-ray on August 27, 2021 and it was confirmed Plaintiff’s shoulder was

dislocated. Plaintiff was again moved back into the medical unit.

Plaintiff has adequately alleged Defendant Foley violated his constitutional

rights based on a delay in providing medical care or scheduling appointments to

address Plaintiff’s shoulder injury and pain.

Plaintiff also alleges during his first stay in the medical unit, he suffered with

spider bites and rashes due to the unsanitary conditions. During his second stay, there

was mold in the unit which began to impact his health. Plaintiff says he verbally

complained and filed grievances with Defendants Asbell, Needham, and Guyton, but

not action was taken. For the purposes of notice pleading, Plaintiff has adequately

alleged the Defendants violated his constitutional rights based on his living conditions

in the medical unit.

However, Plaintiff is admonished he will need to clarify specifically how each

Defendant knew about his living conditions in order to hold each Defendant liable for

his claims under Section 1983. Plaintiff must “show that the defendants were personally

responsible for the deprivation of their rights.” Wilson v. Warren Cty., Illinois, 830 F.3d

464, 469 (7th Cir. 2016). “A defendant is personally responsible ‘if the conduct causing

the constitutional deprivation occurs at his direction or with his knowledge and

consent.’” Id. quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). In addition,

the mere fact that a defendant was a supervisor is insufficient to establish liability

because the doctrine of respondeat superior (supervisor liability) does not apply to actions

filed under 42 USC §1983. See Smith v. Gomez, 550 F.3d 613, 616 (7th Cir. 2008)

(supervisor liability not permitted under § 1983); Pacelli v. DeVito, 972 F.2d 871, 877 (7th

Cir. 1992)(supervisors are not liable for the errors of their subordinates).

In addition, Plaintiff will need to clarify whether he was a pretrial detainee or an

inmate convicted of a crime at the time of his allegations in order to determine whether

his claims proceed pursuant to the Fourteenth Amendment or the Eighth Amendment.

Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015)(fourteenth amendment applies to pretrial

detainees and eighth amendment applies to convicted prisoners).

Plaintiff has also filed a motion for appointment of counsel. [4]. Plaintiff has no

constitutional right to the appointment of counsel. In addition, the Court cannot

require an attorney to accept pro bono appointment in a civil case. The most the Court

can do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071

(7th Cir. 1992).

In considering Plaintiff’s motion, the Court must ask two questions: “(1) has the

indigent plaintiff made a reasonable attempt to obtain counsel or been effectively

precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff

appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007),

citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). In this case, Plaintiff has not

demonstrated any attempt to find counsel on his own such as a list of attorneys

contacted, or copies of letters sent or received. This is a mandatory, threshold inquiry

that must be determined before moving to the second inquiry.” Eagan v. Dempsey, 2021

WL 456002, at *8 (7th Cir. 2021); citing Davis v. Moroney, 857 F.3d 748, 753 (7th Cir. 2017).

Therefore, Plaintiff’s motion is denied with leave to refile. [4].

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the

Court finds the Plaintiff alleges: a) alleged Defendant Foley violated Plaintiff’s

constitutional rights based on a delay in providing medical care or scheduling

appointments to address Plaintiff’s shoulder injury and pain; and b) Defendants

Asbell, Needham, and Guyton violated Plaintiff’s constitutional rights based on

his living conditions in the medical unit. The claims are stated against the

Defendants in their individual capacities only. 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. 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 denied as

premature. 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 Defendants by mailing each Defendant a

waiver of service. Defendants have 60 days from service 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.

4) 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.

5) 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 Order. 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.

6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of

his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will

file Plaintiff's document electronically and send a notice of electronic filing to

defense counsel. The notice of electronic filing shall constitute service on

Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not

available, Plaintiff will be notified and instructed accordingly.

7) 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.

8) 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.

9) 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.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) Deny Plaintiff’s motion for appointment of counsel with leave to renew, [4];

2) Attempt service on Defendants pursuant to the standard procedures; 3) Set

an internal court deadline 60 days from the entry of this order for the court to

check on the status of service and enter scheduling deadlines; and 4) Enter the

Court's standard qualified protective order pursuant to the Health Insurance

Portability and Accountability Act.

ENTERED this 7th day of April, 2022.

s/ James E. Shadid

____________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE