The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN KOCHER,
#Y30177,
Plaintiff,
v. Case No. 19-cv-01204-NJR
PERCY MYERS,
JOHN R. BALDWIN,
ROB JEFFREYS,
SCOTT THOMPSON,
CHRISTINE BROWN,
WEXFORD HEALTH SOURCES, INC.,
and
JOHN/JANE DOES,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Brian Kocher, an inmate of the Illinois Department of Corrections who is
currently incarcerated at Big Muddy River Correctional Center, brings this civil action
pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights that occurred while
at Pinckneyville Correctional Center (“Pinckneyville”). He claims that Defendants acted
with deliberate indifference in the treatment of his epilepsy. He seeks monetary damages
and declaratory and injunctive relief.
The Complaint is now before the Court for preliminary review pursuant to 28
U.S.C. § 1915A. Under Section 1915A, any portion of a complaint that is legally frivolous,
malicious, fails to state a claim upon which relief may be granted, or requests money
damages from a defendant who by law is immune from such relief must be dismissed.
28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se Complaint are
to be liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
2009).
THE COMPLAINT
Kocher alleges the following: On July 5, 2018, he was transferred from the
Northern Reception Center to Pinckneyville. (Doc. 1, p. 5). Upon arrival, he was taken to
the health care unit for an initial intake medical exam. During the exam, he informed Jane
Doe Nurse that he was epileptic and takes seizure medication. Jane Doe Nurse did not
provide Kocher any medication or schedule him for a follow-up appointment with a
physician, physician assistant, or nurse practitioner. From August 20, 2018, until
December 17, 2018, he wrote letters to Dr. Percy Myers, Christine Brown, and Scott
Thompson informing them of his epilepsy and that he was not receiving medication. (Id.).
He did not receive a response to any letters. (Id. at p. 6).
On January 16, 2019, Kocher had a seizure and injured his head on the chuck hole,
requiring twelve stiches. He was left on the floor for over two hours before medical
personnel were called. Kocher was admitted to the health care unit and released on
January 18, 2019. He still was not placed on any medication, and so he wrote another
letter to Dr. Myers. (Id.). Dr. Myers did not respond. (Id. at p. 7). Around May 21, 2019,
he wrote to Thompson and Brown informing them that Dr. Myers had still not prescribed
any medication for his epilepsy and requested assistance, but neither Thompson nor
Brown responded. Kocher had another seizure on June 14, 2019, and was left for two
hours before medical personnel was called. Dr. Myers finally prescribed antiseizure
medication on June 23, 2019.
PRELIMINARY DISMISSALS
Kocher names IDOC Director Baldwin and Acting Director Jeffreys in the case
caption and in the list of defendants but makes no allegations against any of them in the
body of the complaint. Plaintiffs are required to associate specific defendants with
specific claims, so that defendants are put on notice of the claims brought against them
and so they can properly answer the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a defendant in
his statement of the claim, the defendant cannot be said to be adequately put on notice of
which claims in the complaint, if any, are directed against him. Furthermore, merely
invoking the name of a potential defendant is not sufficient to state a claim against that
individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). And in the case of
defendants who are in supervisory positions, the doctrine of respondeat superior is not
applicable to Section 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(citations omitted). Baldwin and Jeffreys cannot be liable merely because they are
directors and “responsible for the health a wellbeing of each and every inmate[.]” (Doc.
1, p. 3). Accordingly, Baldwin and Jeffreys are dismissed from this action without
prejudice.
Kocher also alleges that John and Jane Doe Defendants waited hours to provide
him medical treatment following his seizures on two separate occasions and that Jane
Doe Nurse failed to provide him seizure medication after arriving at Pinckneyville. (Id.
at pp. 5-7, 11). While Kocher may use “John Doe” or “Jane Doe” to refer to parties whose
names are unknown, he must still follow Federal Rule of Civil Procedure 8 pleading
standards and include a short, plain statement of the case against each individual. See
Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009). Because Kocher does not describe the
unknown defendants or identify particular acts or omissions by individuals, John and
Jane Doe Defendants, who failed to provide medical treatment following Kocher’s
seizures, are dismissed without prejudice. The Clerk of Court will be directed, however,
to list separately Jane Doe Nurse in the docket.
Finally, Kocher states that Wexford Health Sources, Inc. (“Wexford”) has an
ongoing campaign of defrauding the state of Illinois by failing to provide constitutionally
adequate health care. (Doc. 1, p. 11). Wexford will only be liable for deliberate
indifference if an unconstitutional policy or practice of the corporation caused the
constitutional deprivation. Kocher fails to point to any specific policy or practice that led
to a violation of his constitutional rights. He only offers legal conclusions of fraud, which
are not enough. As such, Wexford is also dismissed without prejudice.
DISCUSSION
Based on the allegations of the Complaint, the Court finds it convenient to
designate the following Count:
Count 1: Eighth Amendment claim against Dr. Myers, Thompson,
Brown, and Jane Doe Nurse for deliberate indifference in the
treatment of Kocher’s epilepsy.
The parties and the Court will use this designation in all future pleadings and orders,
unless otherwise directed by a judicial officer of this Court. Any other claim that is
mentioned in the Complaint but not addressed in this Order should be considered
dismissed without prejudice as inadequately pled under the Twombly pleading
standard.1
At this state, the allegations in the Complaint state a claim for deliberate
indifference against Dr. Myers, Thompson, Brown, and Jane Doe Nurse, and Count 1
survives preliminary review. See Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998).
MOTION TO APPOINT COUNSEL
Kocher has filed a motion asking the Court to recruit counsel on his behalf, which
is denied.2 (Doc. 3). It appears that Kocher has made reasonable efforts to obtain counsel
on his own, and he has included names and addresses of several attorneys he has
attempted to contact. As to his ability to represent himself, Kocher states that court
recruited counsel is necessary because his imprisonment greatly limits his ability to
litigate, and the case involves complex issues requiring significant research and
investigation. Nonetheless, the Court finds that Kocher is capable of proceeding pro se, at
least for now. His pleadings indicate that he can read and write in English effectively,
and he appears competent to try this matter without representation at this early stage.
Once discovery has commenced, if Kocher has significant difficulty, he may refile his
motion.
OFFICIAL CAPACITY CLAIMS AND INJUNCTIVE RELIEF
Kocher states that he is suing Dr. Myers, Thompson, Brown, and Jane Doe Nurse
in their official and individual capacities. State officials named in their official capacities
1 See Twombly, 550 U.S. at 570.
2 In evaluating Kocher’s Motion to Appoint Counsel, the Court applies the factors discussed in Pruitt v.
Mote, 503 F.3d 647, 654 (7th Cir. 2007) and related authority.
may not be sued for monetary damages in federal court. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989); Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001).
Because Kocher has been transferred from Pinckneyville to Big Muddy River
Correctional Center, his requests for injunctive relief regarding adequate medical
treatment at Pinckneyville are now moot. See, e.g., Lehn v. Holmes, 364 F.3d 862, 871 (7th
Cir. 2004). The only relief available to Koch is money damages and thus, his claims against
Defendants in their official capacities are dismissed.
IDENTIFICATION OF UNKNOWN DEFENDANT
Kocher will be allowed to proceed with claims against Jane Doe Nurse, but this
individual must be identified with particularity before service of the Complaint can be
made. Kocher will have the opportunity to engage in limited discovery to ascertain her
identity. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). In that
vein, Warden Thompson shall be responsible for responding to discovery aimed at
identifying this unknown defendant. Once the name of the individual is discovered,
Kocher shall file a motion to substitute the newly identified defendant in place of the
generic designation in the case caption and throughout the Complaint.
DISPOSITION
For the reasons set forth above, the Complaint survives preliminary review
pursuant to 28 U.S.C. § 1915A. Count 1 shall proceed against Dr. Myers, Thompson,
Brown, and Jane Doe Nurse. The Clerk of Court is DIRECTED to terminate Baldwin,
Jeffreys, Wexford, and John/Jane Does as defendants in this action. The Clerk is further
DIRECTED to list Jane Doe Nurse as a defendant in the docket.
The Motion to Appoint Counsel (Doc. 3) is DENIED without prejudice.
The Clerk of Court shall prepare for Dr. Myers, Thompson, Brown, and Jane Doe
Nurse (once identified): (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of
a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED
to mail these forms, a copy of the Complaint, and this Memorandum and Order to each
defendant’s place of employment as identified by Kocher. If a defendant fails to sign and
return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the
date the forms were sent, the Clerk shall take appropriate steps to effect formal service
on that defendant, and the Court will require that defendant pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a defendant who no longer can be found at the work address
provided by Kocher, the employer shall furnish the Clerk with that defendant’s current
work address, or, if not known, his or her last known address. This information shall be
used only for sending the forms as directed above or for formally effecting service. Any
documentation of the address shall be retained only by the Clerk. Address information
shall not be maintained in the court file or disclosed by the Clerk.
Service shall not be made on Jane Doe Nurse until such time as Kocher has
identified her by name in a properly filed motion for substitution. Kocher is ADVISED
that it is his responsibility to provide the Court with the name and service addresses for
this individual.
Defendants are ORDERED to timely file an appropriate responsive pleading to
the Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Administrative Order No. 244, Defendants need only respond to the issues
stated in this Merit Review Order.
If judgment is rendered against Kocher, and the judgment includes the payment
of costs under Section 1915, he will be required to pay the full amount of the costs, even
though his application to proceed in forma pauperis was granted. See 28 U.S.C. §
1915(£)(2(A).
Finally, Kocher is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court
will not independently investigate his whereabouts. This shall be done in writing and not
later than 7 days after a transfer or other change in address occurs. Failure to comply with
this order will cause a delay in the transmission of court documents and may result in
dismissal of this action for want of prosecution. See FED. R. Civ. P. 41(b).
IT IS SO ORDERED.
DATED: May 12, 2020
Tee Mow?
NANCY J. ROSENSTENGEL |
Chief U.S. District Judge
Page 8 of 9
NOTICE TO PLAINTIFF
The Court will take the necessary steps to notify the appropriate defendants of
your lawsuit and serve them with a copy of your complaint. After service has been
achieved, the defendants will enter their appearance and file an Answer to your
Complaint. It will likely take at least 60 days from the date of this Order to receive the
defendants’ Answers, but it is entirely possible that it will take 90 days or more. When all
the defendants have filed Answers, the Court will enter a Scheduling Order containing
important information on deadlines, discovery, and procedures. Kocher is advised to
wait until counsel has appeared for the defendants before filing any motions, 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.
Kocher need not submit any evidence to the Court at this time, unless specifically directed
to do so.