Cerritos v. Robeen

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

RODOLFO CERRITOS, )

Plaintiff, )

)

v. ) Case No. 23-cv-03027

)

CHRIS ROBEEN et al., )

Defendants. )

ORDER

COLLEEN R. LAWLESS, United States District Judge:

Before the Court for screening is a Complaint (Doc. 1) filed under 42 U.S.C § 1983

by Plaintiff Rodolfo Cerritos, who is currently incarcerated at Southwestern

Correctional Center. Plaintiff has also filed a Motion for Counsel (Doc. 5).

I. Complaint

A. Screening Standard

The Court must “screen” Plaintiff’s complaint and dismiss any legally

insufficient claim or the entire action if warranted. 28 U.S.C. § 1915A. 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.” Id. In reviewing the complaint, the court accepts the factual allegations as

accurate, 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. United States, 721 F.3d 418, 422 (7th Cir. 2013) (citation omitted).

B. Factual Allegations

Plaintiff’s pleading concerns alleged constitutional violations during his

imprisonment at Jacksonville Correctional Center. Plaintiff identifies the following

Defendants: Warden Cherryle Hinthorne and Healthcare Administrator Chris Robeen.

In January 2022, Plaintiff began experiencing tooth pain due to a defective filling.

Plaintiff sought dental care on eleven occasions to no avail because Jacksonville did not

have a dentist. From March to June 2022, Plaintiff submitted monthly emergency

grievances that Defendants addressed. Over two days in June 2022, Plaintiff ingested

thirty 600 milligrams (“mg”) Motrin pills for tooth pain, prompting further diagnostic

testing due to the increased medication. In July 2022, Plaintiff took 1000 mg of Tylenol

thrice daily for his pain, which was ineffective. On July 7, 2022, a Dentist extracted

Plaintiff’s tooth as the damage could not be repaired. Plaintiff claims that, as a result, he

suffers from a “dental disfigurement.” (Doc. 1 at 6.)

C. Analysis

The Seventh Circuit has clarified that severe tooth decay or abscesses can cause

acute medical needs requiring prompt treatment. Dobbey v. Mitchell-Lawshea, 806 F.3d

938, 940 (7th Cir. 2015); see also Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)

(“Tooth decay can constitute an objectively serious medical condition because of pain

and the risk of infection.”); Board v. Farnham, 394 F.3d 469, 480 (7th Cir. 2005) (“At the

outset, we reiterate our view that dental care is one of the most important medical

needs of inmates.” (internal quotation marks omitted)).

Plaintiff asserts that Defendants Hinthorne and Robeen were aware of his severe

dental needs through the many grievances he submitted that Defendants processed,

which the Court concludes is sufficient to state a deliberate indifference claim for lack of

timely dental care. See Perez v. Fenoglio, 792 F.3d 768, 781–82 (7th Cir. 2015) (“An

inmate’s correspondence to a prison administrator may . . . establish a basis for personal

liability under § 1983 where that correspondence provides sufficient knowledge of a

constitutional deprivation.”). Thus, the Court concludes that Plaintiff’s account, taken

as accurate, is enough to state a deliberate indifference claim against Defendants

Hinthorne and Robeen for lack of timely dental care.

The Court notes that Plaintiff also seeks to proceed on a claim that Defendant

Robeen violated his rights under the Health Insurance Portability and Accountability

Act (“HIPPA”). However, HIPPA does not confer a private right of action or rights

enforceable in a § 1983 action. Stewart v. Parkview Hosp., 940 F.3d 1013, 1015 (7th Cir.

2019); see also Acara v. Banks, 470 F.3d 569, 570–72 (5th Cir. 2006); Dodd v. Jones, 623 F.3d

563, 569 (8th Cir. 2010); Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010); Wilkerson v.

Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010). Thus, Plaintiff’s HIPPA allegation fails

to state a plausible claim for relief.

II. Recruitment of Counsel

Plaintiff has no constitutional right to counsel, and the Court cannot require an

attorney to accept pro bono appointments in civil cases. 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)

(holding that although indigent civil litigants have no constitutional right to counsel, a

district court may, in its discretion, request counsel to represent indigent civil litigants

in certain circumstances). In considering Plaintiff’s motion for counsel, 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).

The Court denies Plaintiff’s Motion for Recruitment of Counsel because he has

not demonstrated that he attempted to find counsel by attaching the responses he has

received to his solicitations. Furthermore, the Court concludes that recruiting counsel at

this early stage of the proceedings is not warranted. As explained below, entry of the

Court’s Merit Review Order begins the service phase. After Defendants have been

served and have filed their answers to Plaintiff’s complaint, which usually takes sixty

days, the Court will enter a scheduling order that provides guidance and deadlines to

assist Plaintiff during the discovery process. Therefore, the Court denies Plaintiff’s

Motion for Recruitment of Counsel, with leave to renew on a more developed record.

IT IS THEREFORE ORDERED:

1) Plaintiff’s Motion for Counsel (Doc. 5) is DENIED for the reasons stated in the

Court’s Merit Review Order.

2) According to the Court’s screening of Plaintiff’s Complaint [1] under 28 U.S.C.

§ 1915A, Plaintiff has alleged enough facts to proceed with an Eighth

Amendment deliberate indifference claim against Defendants Hinthorne and

Robeen. Plaintiff’s claim against Defendants proceeds in their individual

capacity only. 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 under Federal

Rule of Civil Procedure 15.

3) This case is now in the process of service. The Court advises Plaintiff to wait

until counsel has appeared for Defendants before filing any motions to give

Defendants notice and an opportunity to respond to those motions. Motions

filed before Defendants’ counsel has filed an appearance will be denied as

premature. Plaintiff need not submit evidence to the Court unless otherwise

directed by the Court.

4) The Court will attempt service on Defendants by mailing each Defendant a

waiver of service. Defendants have sixty days from service to file an Answer. If

Defendants have not filed Answers or appeared through counsel within ninety

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.

5) Concerning a Defendant who no longer works at the address provided by

Plaintiff, the entity for whom that Defendant worked while at that address

shall submit to the Clerk of the Court (“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) Defendants shall file an Answer within sixty days of the date the Clerk sends

the waiver. 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 Defendants file a motion. Therefore, no

response to the Answer is necessary or will be considered.

7) This District uses electronic filing, which means that after Defendants’ counsel

has filed an appearance, Defendants’ counsel will automatically receive

electronic notice of any motion or other paper filed by Plaintiff with the Clerk.

Therefore, Plaintiff does not need to mail copies of motions and other

documents that Plaintiff has filed with the Clerk to Defendants’ counsel.

However, this does not apply to discovery requests and responses. Discovery

requests and responses are not filed with the Clerk. Instead, 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 Defendants’ counsel has filed an appearance, and the

Court has entered a scheduling order, which will explain the discovery process

in more detail.

8) Defendants’ counsel is granted leave to depose Plaintiff at his place of

confinement. Defendants’ counsel shall arrange the time for the deposition.

9) Plaintiff shall immediately notify the Court, in writing, of any change in his

mailing address and telephone number. Plaintiff’s failure to inform the Court

of a change in mailing address or phone number will result in the dismissal of

this lawsuit with prejudice.

10) If a Defendant fails to sign and return a waiver of service to the Clerk within

thirty 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 total costs of formal service under

Federal Rule of Civil Procedure 4(d)(2).

11) The Court directs the Clerk to enter the standard qualified protective order

under the Health Insurance Portability and Accountability Act.

12) The Court directs the Clerk to attempt service on Defendants under the

standard procedures.

ENTERED June 14, 2023.

s/ Colleen R. Lawless

____________________________________

COLLEEN R. LAWLESS

UNITED STATES DISTRICT JUDGE