Berry v. Myers

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL BERRY, #R49732, )

)

Plaintiff, )

vs. ) Case No. 23-cv-00892-SMY

)

DOCTOR MYERS, )

)

Defendant. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Michael Berry, an inmate of the Illinois Department of Corrections (“IDOC”)

currently incarcerated at Pinckneyville Correctional Center, filed the instant lawsuit pursuant to

42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. He claims Defendant Myers’

refusal to treat his serious skin condition violated the Eighth Amendment. Plaintiff seeks

declaratory and injunctive relief as well as 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 began

suffering from a skin condition while he was a prisoner at Stateville Correctional Center1 (Doc 1,

1 Stateville officials’ deliberate indifference to Plaintiff’s skin condition is alleged in a separate pending

action, Berry v. Hoeft, et. al, Case No. 20-cv-01340 (N.D. Ill. Feb. 24, 2020).

pp. 2-3). The skin over his entire body broke out, resulting in open wounds and scars. Plaintiff

later found out that his condition is called hyperpigmented lesion.

After Plaintiff’s transfer to Pinckneyville on September 25, 2019, he sought treatment from

Defendant Myers, the prison doctor. Dr. Myers informed Plaintiff that his condition was

untreatable, gave him no treatment, and refused his request for a referral to a dermatologist.

However, Plaintiff learned that his condition is in fact treatable (Doc. 1, pp. 3, 8-9). As of the

filing of the Complaint, Plaintiff has suffered with this condition for three years and has not

received any treatment or a referral to a specialist while at Pinckneyville. (Doc. 1, p. 3).

Based on the allegations in the Complaint, the Court designates the following claim in this

pro se action:

Count 1: Eighth Amendment deliberate indifference to serious medical needs

claim against Dr. Myers for failing to treat Plaintiff’s serious skin

condition or refer him to a specialist.

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.2

Discussion

Count 1

Prison medical providers violate the Eighth Amendment’s prohibition against cruel and

unusual punishment when they act with deliberate indifference to a prisoner’s serious medical

needs. Rasho v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state such a claim, a prisoner must

plead facts and allegations suggesting that (1) he suffered from an objectively serious medical

condition, and (2) the defendant acted with deliberate indifference to his medical needs. Id.

2 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (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.”).

Deliberate indifference is implicated if a prison official acted or failed to act despite his/her

knowledge of a serious risk of harm. Farmer v. Brennan, 511 U.S. 825, 842 (1994).

The allegations in the Complaint are sufficient for Plaintiff to proceed on the deliberate

indifference claim in Count 1 against Dr. Myers.

Injunctive Relief

Because the Complaint includes a request for injunctive relief, the Warden of Pinckneyville

Correctional Center, in his/her official capacity, will be added to the docket with regard to the

request for injunctive relief. See Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011)

(holding warden is proper defendant for injunctive relief claim as s/he would be responsible for

ensuring that any injunctive relief would be carried out).

Pending Motion

Plaintiff’s Motion for Appointment of Counsel (Doc. 2) is DENIED without prejudice.

There is no constitutional or statutory right to counsel in federal civil cases. Romanelli v. Suliene,

615 F.3d 847, 851 (7th Cir. 2010). In determining whether to recruit counsel, the Court considers

whether the pro se party has made reasonable efforts to secure counsel on his own and his ability

to litigate the case on his own. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).

Here, Plaintiff has not established any efforts made to obtain counsel on his own; he merely

notes that counsel was recruited for him in his pending Northern District case. Moreover, at this

early stage of the litigation, it is difficult to accurately evaluate the need for assistance of counsel,

so recruitment of counsel would be premature. See Kadamovas v. Stevens, 706 F.3d 843, 845 (7th

Cir. 2013) (“[U]ntil the defendants respond to the complaint, the plaintiff's need for assistance of

counsel...cannot be gauged.”).

Should Plaintiff encounter difficulties in self-representation as this case proceeds, he may

refile his motion seeking recruitment of counsel. If he renews his request, he should submit at least

3 rejection letters from attorneys to show that he has made reasonable efforts to obtain counsel on

his own.

Disposition

The Complaint states a colorable claim in Count 1 against Dr. Myers. The Clerk of Court

is DIRECTED to ADD the Warden of Pinckneyville Correctional Center, in his or her official

capacity, to the docket for purposes of Plaintiff’s claim for injunctive relief.

The Clerk shall prepare for Dr. Myers and the Warden of Pinckneyville Correctional Center

(official capacity only): (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 Plaintiff. 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 the Defendant, and the Court will

require the Defendant to pay the full costs of formal service, to the extent authorized by the Federal

Rules of Civil Procedure.

If a 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 and shall not be maintained in the court file or disclosed by the Clerk.

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.

Plaintiff is ADVISED that if judgment is rendered against him and the judgment includes

the payment of costs under 28 U.S.C. §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(f)(2)(A).

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

Court and the opposing parties 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).

Finally, based on the allegations in the Complaint, the Clerk of Court is DIRECTED to

ENTER the standard qualified protective order pursuant to the Health Insurance Portability and

Accountability Act.

IT IS SO ORDERED.

DATED: August 17, 2023

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

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

them with a copy of your Complaint. After service has been achieved, Defendants 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 Defendants’ Answer, but it is entirely possible that it will take 90 days

or more. When Defendants have filed their Answers, 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 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. Plaintiff need not submit any

evidence to the Court at this time, unless specifically directed to do so.