Nicholson v. Sullivan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT E. NICHOLSON, #S08199, )

)

Plaintiff, )

)

vs. ) Case No. 20-cv-00117-SMY

)

WARDEN SULLIVAN, and )

DR. LARSON, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Robert E. Nicholson, an inmate of the Illinois Department of Corrections currently

incarcerated at Big Muddy River Correctional Center (“BMRCC”), filed this action pursuant to 42

U.S.C. § 1983 for alleged deprivations of his constitutional rights. Plaintiff claims deliberate

indifference to serious medical needs in violation of the Eighth Amendment and seeks monetary

damages. (Doc. 1).

This case is now before the Court for preliminary review of the Complaint under 28 U.S.C.

§ 1915A, which requires the Court to screen prisoner Complaints to filter out nonmeritorious

claims. 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally frivolous, malicious,

fails to state a claim for relief, or requests money damages from an immune defendant must be

dismissed. 28 U.S.C. § 1915A(b).

The Complaint

Plaintiff makes the following allegations in his Complaint (Doc. 1): Plaintiff was advised

in March 2019 by Dr. Larson that he needed surgery on his right hip. He was referred to an outside

doctor for consultation, and hip replacement surgery was scheduled for September 2019. The

surgery was twice re-scheduled – for November 2019 and January 2, 2020. As of January 24,

2020, the surgery had not been done. Plaintiff suffered extreme pain on a daily basis while under

Dr. Larson’s care and awaiting surgery. He also suffered from an infection in his genital area.

Based on the allegations in the Complaint, the Court designates the following single Count:

Count 1: Eighth Amendment claim against Defendant Dr. Larson for

deliberate indifference to Plaintiff’s serious medical needs.

Any other intended claim that has not been recognized by the Court is considered dismissed

without prejudice as inadequately pleaded under the Twombly pleading standard.1

Preliminary Dismissal

Plaintiff named Warden Sullivan as a defendant but makes no allegations against him in

the statement of claim. Instead, he identifies Sullivan in the list of defendants as the Warden of

BMRCC and asserts that as the warden, Sullivan is responsible for Dr. Larson’s actions and

inactions. Plaintiff also asserts that as the warden, Sullivan is duty bound to ensure Plaintiff

receives adequate, specific medical care and treatment.

Sullivan cannot be held liable based solely on his position as an administrator because the

doctrine of respondeat superior does not apply to § 1983 actions. Chavez v. Illinois State Police,

251 F.3d 612, 651 (2001). Because there is no suggestion that Sullivan is personally responsible

for allegedly violating Plaintiff’s constitutional rights, he will be dismissed from the case without

prejudice. See Pepper v. Village of Oak Park, 430 F.3d 806, 810 (7th Cir. 2005) (“[T]o be liable

under § 1983, the individual defendant must have caused or participated in a constitutional

deprivation.”).

1 An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim

that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Discussion

To state a claim for deliberate indifference to a serious medical need, an inmate must show

that (1) he suffered from an objectively serious medical condition; and (2) the defendant was

deliberately indifferent to a risk of serious harm from that condition. Rasho v. Elyea, 856 F.3d

469, 475-76 (7th Cir. 2017). The allegations in the Complaint are sufficient to allow Plaintiff’s

deliberate indifference claim to proceed against Dr. Larson.

Motion for Recruitment of Counsel

Civil litigants do not have a constitutional or statutory right to counsel. Pruitt v. Mote, 503

F.3d 647, 649 (7th Cir. 2007). Under 28 U.S.C. § 1915(e)(1), the Court has discretion to recruit

counsel to represent indigent litigants in appropriate cases. Johnson v. Doughty, 433 F.3d 1001,

1006 (7th Cir. 2006). When determining whether to grant a plaintiff’s request for recruitment of

counsel, the court must consider 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?” Id. at 654. The

first prong of the analysis is a threshold question. If a plaintiff has made no attempt to obtain

counsel on his own, the court should deny the request. See Pruitt, 503 F.3d at 655.

Here, although Plaintiff states that he has written to attorneys, he does not provide proof.

Therefore, he has not met his threshold burden. He also does not identify any impediments to self-

representation and his pleadings demonstrate the ability to articulate clearly and effectively on his

own behalf. The Motion for Recruitment of Counsel (Doc. 3) is therefore DENIED. If Plaintiff

chooses to file a request for counsel at a later date, he should provide rejection letters from at least

three attorneys to prove that he has made reasonable efforts to obtain counsel on his own.

Motion for Service of Process at Government Expense

Plaintiff’s Motion for Service of Process at Government Expense (Doc. 4) is DENIED as

MOOT. Summons will be issued and served on the Defendant as provided in this Order.2

Disposition

Count 1 will proceed against Dr. Larson. Warden Sullivan is DISMISSED without

prejudice for failure to state a claim for relief and the Clerk of Court is DIRECTED to

TERMINATE him as a party.

The Clerk of Court shall prepare for Dr. Larson: (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 of Court is DIRECTED to mail these forms, a copy of the Complaint, and this Memorandum

and Order to Defendant’s place of employment as identified by Plaintiff. If 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 Defendant,

and the Court will require Defendant to pay the full costs of formal service, to the extent authorized

by the Federal Rules of Civil Procedure.

If Defendant cannot be found at the work address provided by Plaintiff, the employer shall

furnish the Clerk with the Defendant’s current work address, or, if not known, the Defendant’s

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.

Defendant is ORDERED to timely file an appropriate responsive pleading to the

2 It is not necessary for a litigant proceeding in forma pauperis to file a motion requesting service of process by the

United States Marshal Service or other process server.

Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendant need only respond to the issues stated in this Merit

Review Order.

If judgment is rendered against Plaintiff, and the judgment includes the payment of costs

under Section 1915, Plaintiff will be required to pay the full amount of the costs, regardless of

whether his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).

Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is DENIED without prejudice; the

Motion for Service of Process at Government Expense (Doc. 4) is DENIED as moot.

The Clerk of Court is DIRECTED to ENTER the standard qualified protective order

pursuant to the Health Insurance Portability and Accountability Act.

Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court

and the 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: June 22, 2020

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the Defendant of your lawsuit and serve

him or her with a copy of your Complaint. After service has been achieved, Defendant will enter

an 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 Defendant’s Answer, but it is entirely possible that it will take 90

days or more. When Defendant has filed an Answer, the Court will enter a Scheduling Order

containing important information on deadlines, discovery, and procedures. Plaintiff is advised to

wait until counsel has appeared for Defendant before filing any motions, to give the 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 specifically directed to do so.