Stevenson v. Disher

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

DWAYNE STEVENSON, )

Plaintiff, )

)

vs. ) Case No. 21-3243

)

TIM DISHER and WEXFORD )

HEALTH SOURCES, )

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 Nurse Tim Disher and Wexford

Health Sources violated his constitutional rights at Graham Correctional Center.

Plaintiff says on or around February 19, 2019, he began to experience severe stomach

pain which prevented him from urinating or defecating. Plaintiff says his stomach

began “to swell and harden.” (Comp., p. 5).

The next day, Plaintiff asked to see medical staff. Plaintiff could no longer walk

and he was taken to the Healthcare Unit in a wheelchair where he met with Defendant

Nurse Disher. Plaintiff explained his symptoms and his increasing pain, but Plaintiff

says the nurse was rude and did not conduct a thorough examination. Instead, the

nurse told Plaintiff there was nothing wrong with him, provided him with Ibuprofen,

and sent him back to his housing unit. The nurse also failed to consult with a doctor or

any other medical professional concerning Plaintiff’s symptoms.

On February 19, 2019, officers found Plaintiff unresponsive in his cell. Plaintiff

was rushed to St. John’s Hospital where the medical records indicate Plaintiff was in

“severe shock” and “was also in multiorgan failure.” (Comp, p. 17). Plaintiff was rushed

into surgery with a perforated bowel. Plaintiff says additional surgery or surgeries

were also required.

Plaintiff has alleged Defendant Nurse Disher violated his Eighth Amendment

rights when he was deliberately indifferent to Plaintiff’s serious medical condition in

February of 2019. Plaintiff has failed to articulate a claim against Wexford Health

Source.

Plaintiff has also filed a motion for appointment of counsel. [3]. 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).

Almost everyone would benefit from having a lawyer, but there are too

many indigent litigants and too few lawyers willing and able to volunteer

for these cases. District courts are thus placed in the unenviable position of

identifying, among a sea of people lacking counsel, those who need counsel

the most. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014).

Ultimately “[t]he question is not whether a lawyer would present the case more

effectively than the pro se plaintiff; if that were the test, district judges would be

required to request counsel for every indigent litigant.” Pruitt v. Mote, 503 F.3d 647, 655

(7th Cir. 2007)(internal quotation omitted). The text is whether the litigant is competent

to litigate his own claims. Pruitt, 503 F.3d 655.

Specifically, the Court must consider two questions. First, “has the indigent

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

from doing so.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007), citing Farmer v. Haas, 990

F.2d 319, 322 (7th Cir. 1993). Plaintiff has provided evidence of his attempt to find

counsel with his complaint.

Therefore, the Court must focus on the second inquiry, “whether the difficulty of

the case—factually and legally—exceeds the particular plaintiff's capacity as a

layperson to coherently present it to the judge or jury himself.” Pruitt, 503 F.3d at 655.

The Court must consider all aspects of the litigation including gathering evidence and

responding to motions. Eagan v. Dempsey, 2021 WL 456002, at *8.

Plaintiff’s complaint very clearly states his claims against Defendant Disher and

Plaintiff has also attached relevant documentation. While Plaintiff’s claim does involve

his medical care, Plaintiff should be able to testify to the pain he experienced, his

attempts to obtain help, and the response he received to demonstrate deliberate

indifference. See Ledford v. Sullivan, 105 F.3d 354, 358 (7th Cir. 1997)(expert testimony

not necessarily required to establish deliberate indifference). Plaintiff will also be able to

obtain additional medical records during discovery.

Once the Defendant is served, the Court will set this matter for a hearing to

discuss Plaintiff’s claims, potential defenses, and needed discovery. In addition, the

Court will enter a Scheduling Order which will provide additional information to assist

a pro se Plaintiff with the discovery process. Based on the current record, the motion is

denied. [3].

IT IS THEREFORE ORDERED:

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

Court finds Plaintiff has alleged Defendant Nurse Disher violated Plaintiff’s

Eighth Amendment rights when the Defendant was deliberately indifferent to

Plaintiff’s serious medical condition in February of 2019. The claim is stated

against the Defendant in his 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 Defendant before filing any motions, in order to give

Defendant notice and an opportunity to respond to those motions. Motions filed

before Defendant’s 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 Defendant by mailing Defendant a waiver of

service. Defendant has 60 days from service to file an Answer. If Defendant has

not filed an Answer or appeared through counsel within 90 days of the entry of

this order, Plaintiff may file a motion requesting the status of service. After

Defendant has 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) Defendant 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 Defendant’s positions. The Court does not rule on the merits of

those positions unless and until a motion is filed by Defendant. 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

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

available, Plaintiff will be notified and instructed accordingly.

7) Counsel for Defendant is hereby granted leave to depose Plaintiff at his place of

confinement. Counsel for Defendant 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 Defendant’s counsel an authorization to

release medical records, Plaintiff is directed to sign and return the authorization

to Defendant’s Counsel.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) Dismiss Defendant Wexford for failure to state a claim upon which relief

can be granted pursuant to by 28 U.S.C. §1915A; 2) Deny Plaintiff’s Motion for

Appointment of Counsel, [3]; 3) Attempt service on Defendant pursuant to the

standard procedures; 4) 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 5) Enter the Court's standard qualified protective order

pursuant to the Health Insurance Portability and Accountability Act.

Entered this 11th day of April, 2022.

s/James E. Shadid

_________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE