Allen v. Jeffreys

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEITH ALLEN, M21830, )

)

Plaintiff, )

)

vs. )

)

ROB JEFFREYS, )

WEXFORD HEALTH SOURCES, INC., )

ANTHONY WILLS, )

DeANNA KINK, )

ANGELA CRAIN, )

J. CRANE, ) Case No. 23-cv-3775-DWD

ALISA DEARMOND, )

NICOLE BRAND, )

M. MOLDENHAUER, )

N. FLORENCE, )

N. YOUSUF, )

CLARA RICHMOND, )

KELLY PIERCE, )

NURSE REVA, )

NURSE SUZIE, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Keith Allen, an inmate of the Illinois Department of Corrections (IDOC)

currently detained at Menard Correctional Center (Menard), brings this civil rights action

pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. (Doc.

1). Plaintiff’s 158-page complaint focuses entirely on a hand injury he sustained on

August 16, 2021, and his subsequent efforts to seek care to treat his injury and to alleviate

his pain. He seeks compensatory and injunctive relief and has also moved to certify a

class action on behalf of all inmate’s currently incarcerated in IDOC (Doc. 2).

Plaintiff’s Complaint (Doc. 1) is now before the Court for preliminary review

pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen

prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a)-(b).

Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon

which relief may be granted, or asks for 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

Plaintiff’s complaint is verbose and redundant. It is 158-pages, accompanied by

more than 400 pages of exhibits. At many points throughout the complaint, Plaintiff

quotes administrative directives and internal prison guidance at great length, directives

that he also attached in full form as exhibits. The Court will not recount the complaint in

exhaustive detail here, but it did review the pleading in great detail, and it reviewed the

exhibits with particular attention to grievances and medical documents.1 What follows

is a brief recitation of key facts and actions sufficient for purposes of initial review.

1 The Court notes that some of the exhibits appear to contradict allegations that Plaintiff makes in his

complaint, and some of these contradictions are rather troublesome for purposes of the integrity of

Plaintiff’s pleading. For example, in the opening paragraphs of his complaint, Plaintiff alleges that he

sought medical care during cellhouse medication rounds on August 16, 2021, from Nurse Reva. In the

complaint he describes his hand as broken during a fight on August 16 while he was trying to defend

himself. However, when Plaintiff was seen in the medical unit on August 17, 2021, the nurse’s notes

indicate that he self-reported the cause of his injury as falling off his bunk bed at night. (Doc. 1-1 at 23).

Plaintiff also included a Disciplinary Report from September 15, 2021, at which point he was found guilty

Plaintiff alleges that on August 16, 2021, he severely injured his right hand while

defending himself during an altercation with another inmate. (Doc. 1 at 16). That evening

during medication rounds in segregation, Plaintiff caught the attention of Nurse Reva, he

showed her his swollen hand, described his symptoms, and asked for care. Nurse Reva

refused all care and simply told him to file a sick call slip. (Id. at 16-17).

On August 17, 2021, Plaintiff saw J. Crane, a nurse practitioner, at sick call for his

hand injury. His hand was swollen, painful and discolored, but Crane did not accurately

record all of his symptoms, gave him an ice pack and ibuprofen and dismissed him.

Plaintiff saw Crane again on August 20, 2021, at which time she noted discoloration and

put him in for an immediate x-ray. Crane and Dearmond conducted the x-ray together

and concluded that it showed no fracture or break. An outside radiologist—Dr.

Florence—concurred that there was no fracture or break. Plaintiff was given Motrin,

which Crane knew to be ineffective, and he was denied other care.

Plaintiff saw Crane again in August and had a second x-ray on August 31, 2021.

An “M.D. Review” of the second x-ray by Dr. N. Yousef produced a recommendation

that he see an outside specialist.2 Crane ignored this recommendation. (Id. at 26). After

of assaulting another offender on August 16, 2021. (Doc. 1-1 at 37). In Plaintiff’s first emergency grievance

on his injury on October 15, 2021, he states that the “next day” after his injury he asked the nurse for pain

pills. (Doc. 1-1 at 39). The Court also notes that in the October 15, 2021, grievance, Plaintiff spoke in a

neutral tone about interactions with Defendants J. Crane and Dearmond during his x-rays, but later when

he learned from the orthopedic specialist that he may have an old fracture, he then recharacterized Crane

and Dearmond’s behavior as “laughing” and joking about his condition (Doc. 1 at 20-21), and he accuses

them of falsifying records. Despite contradictions like these, the Court still read Plaintiff’s complaint with

broad deference and construed it in his favor.

2 The actual x-ray report from N. Yusuf says, “if symptoms persist or progress, a follow-up study may be

considered.” (Doc. 1-1 at 32).

the second x-ray, Dearmond prescribed Ibuprofen despite knowing it would be

ineffective. (Id. at 27).

Plaintiff saw Dearmond and Crane for a third x-ray September 14, 2021. (Doc. 1 at

28). Dr. Yousef noted mild soft swelling and other conditions and recommended a

physician’s appointment,3 but Crane and Dearmond denied or delayed this and

continued ineffective pain medicine.

Plaintiff also alleges that N. Yousuf misdiagnosed his x-ray on or around

September 2, 2021, and then inconsistent with the misdiagnosis, on September 14 or 16,

2021, he noted mild degenerative changes and swelling. Plaintiff further alleges N.

Yousuf should have or did refer him to a specialist, but then never followed-up to ensure

he was seen for further care. (Doc. 1 at 33-41).

Plaintiff filed an emergency grievance on October 15, 2021, about his hand injury,

and Warden Wills deemed it an emergency on October 21 and sent it to the grievance

office for further expedited processing. (Doc. 1-1 at 39-42). Despite the grievance being

deemed an emergency, and despite it being received, Defendant Kelly Pierce (a

correctional counselor) never responded to it. (Doc. 1 at 44). On November 3, 2021,

Plaintiff filed a ‘supplemental grievance’ because he had yet to receive a response to the

emergency or to get follow-up care. (Doc. 1-1 at 45-47). The second grievance was

rejected by Kelly Pierce as a duplicate of the earlier grievance. (Doc. 1-1 at 50-51). Plaintiff

3 Dr. Yusuf’s radiology report notes mild degenerative changes and swelling, but no acute fracture or dislocation.

(Doc. 1-1 at 38). He again suggests a follow-up study be “considered” if symptoms persist. (Doc. 1-1 at 38). The

radiology report is also stamped as reviewed by an “M.D.” on October 13, 2021. This stamping has a notation to

“see patient.”

alleges that Pierce was made aware of his predicament by the grievances but failed to

investigate or to render assistance. (Doc. 1 at 54-59). Plaintiff faulted both Wills and

Pierce for turning a blind eye to the second grievance without verifying anything had

been done in response to the first grievance. (Id. at 54-66)

Plaintiff goes on at length about the failures of Allison Hargis and Sheila Ramsey

to properly process or respond to his emergency grievances. (Doc. 1 at 44-52). Among

other things, he alleges Ramsey and Hargis discriminated against him and acted to

deprive black prisoners of adequate healthcare, in violation of multiple IDOC Directives,

and without consideration for Wexford’s own policies that support the provision of 24/7

emergency care.

On the topic of grievances, Plaintiff alleges that Deanna Kink and Rob Jeffreys

further violated his rights when they received his emergency grievances in their roles

with the Administrative Review Board and failed to act or turned a blind eye to his

situation. (Doc. 1 at 68-71). He adds that these two, along with Wills and Pierce,

discriminated against him in the handling of the grievance because the grievance form

calls for an inmate’s race, and he is black. He further alleges black inmates receive worse

grievance responses and worse medical care. (Doc. 1 at 71-73).

On two occasions, Plaintiff saw Nurse Practitioner Moldenhauer concerning his

hand injury. (Doc. 1 at 74-83). At the first visit on November 6, 2021, he alleges she

simply continued medication and treatment that was ineffective despite three prior x-

rays and multiple visits in 30 days, which he believed warranted escalating the issue to a

doctor or specialist.4 At the second visit on December 1, 2021, she changed his

medication, deemed his issue an emergency, and referred him to an orthopedic specialist,

but the specialist visit did not occur until February 8, 2022. Plaintiff alleges the delay

constituted deliberate indifference and caused unnecessary pain and suffering as well as

permanent damage.

Plaintiff provides nearly 30-pages of allegations against healthcare unit

administrator Angela Crain. (Doc. 1 at 84). Of importance for his Eighth Amendment

claims, he alleges that Crain turned a blind-eye to his need for care in her handling of his

emergency grievances in October and November of 2021. He further alleges that when

he was finally referred to an orthopedic specialist, Crain delayed the appointment up to

two-and-a-half months by her delay in approving the referral for care. Plaintiff raises

many additional theories about Crain’s responsibilities to oversee medical personnel, to

implement procedures in the healthcare unit and the prison, and to comply with

professional obligations, among other things, but the Court will not recite 30 pages of

detailed allegations at length here.

Plaintiff then explains that after the specialist visit on February 8, 2022, he saw Dr.

Glen Babich. Dr. Babich diagnosed him with an old fracture, internal damage from

improper handling, and carpal tunnel nerve damage syndrome. (Doc. 1 at 113). Dr.

Babich offered carpal tunnel release nerve surgery, but Plaintiff declined because he

believed it would make him vulnerable in a maximum-security violent prison. Dr. Babich

4 The visit note from November 6, 2021, is signed by a nurse with an illegible signature. (Doc. 1-1 at 48).

However, the December 1, 2021, notes are clearly signed by M. Moldenhauer. (Doc. 1-1 at 52).

also informed Plaintiff that not much could be done for the improperly healed fracture

because it has not limited his range of motion, so surgery would not be an optimal option.

(Doc. 1 at 113-14). These recommendations and findings are consistent with the notes

from the orthopedic visit on February 8, 2022. (Doc. 1-1 at 61-64).

A week later, on February 15, 2022, Plaintiff filed an emergency grievance wherein

he sought a second opinion as well as a standing prescription for 500mg of ibuprofen to

manage his pain. (Doc. 1 at 114). Although Warden Wills deemed it an emergency, the

grievance was ultimately denied after Crain reviewed his records and concluded that

surgery was not recommended by the orthopedic specialist. (Doc. 1-1 at 69-72; 75). The

grievance denial was affirmed by Defendants DeAnna Kink and Rob Jeffreys. (Doc. 1 at

114-115; Doc. 1-1 at 76). Ultimately, Plaintiff faults Defendants Pierce, Crain, Wills, Kink,

and Jeffreys for turning a blind eye to this grievance. (Doc. 1 at 119).

In May of 2022, Plaintiff initiated another round of attempts to secure further care

and pain medication for his injured hand. (Doc. 1 at 115-118). He began with sick call

slips for medical and mental health attention on May 10, 2022, and also verbally informed

a non-party counselor of his ongoing pain on May 13, 2022. (Doc. 1 at 115). On May 14,

2022, he saw Jane Doe Nurse Suzie at sick call. Suzie indicated she would contact Angela

Crain about pain medication. Plaintiff alleges that Suzie exhibited deliberate indifference

because she knew he had an order from the orthopedic specialist for pain medication that

was not being followed, and she did not even offer an alternative medication while she

waited for Angela Crain’s response. (Doc. 1 at 120).

On May 18, 2022, Plaintiff wrote Angela Crain about his ongoing issues. Plaintiff

saw a telepsychiatrist on May 24, 2022, and he began antidepressants for his ongoing

mental anguish over his injury and treatment. (Doc. 1 at 117). On May 31, 2022, Plaintiff

sent requests to Crain and Wills describing his ongoing problems. Finally, on June 2,

2022, Plaintiff saw a non-party nurse who gave him some ibuprofen and said she would

refer him to a doctor of his ongoing nerve pain. (Doc. 1 at 118).

On June 17, 2022, Plaintiff was sent on a medical furlough to UIC/UIH Hospital

for evaluation of his nerve pain. The provider offered interim forms of relief such as a

wrist/hand splint, physical therapy, and stronger pain medication, but she also referred

him back to the orthopedic specialist for further consultation. She suggested that the only

viable form of relief would be carpal tunnel surgery. (Doc. 1 at 121). Plaintiff faults Wills

and Crain for allowing a 15-day delay between his June 2 visit to sick call and his June 17

specialist visit. He alleges this violates internal policies that dictate emergency care be

rendered within 72 hours. (Id. at 121-22).

Plaintiff went on a medical writ to the orthopedic specialist for a second time on

September 27, 2022. (Doc. 1 at 127). He attributes the 3-month delay from the June 2022

hospital visit until the September specialist visit to Crain and Wills. The specialist

suggested a wrist brace, stronger prescription pain medication and physical therapy as

options to try prior to surgery. (Doc. 1 at 127).

Plaintiff got the prescribed pain medication on October 2, 2022, he started physical

therapy on October 3, and on October 13 he got a soft wrist brace. (Doc. 1 at 127). Plaintiff

alleges that the soft brace did not satisfy the orthopedic specialist’s order, so he faults

Wills and Crain for deliberate indifference by not carrying out the specialist’s orders. (Id.

at 128). In late October, Plaintiff fell while trying to access his top bunk and further

injured his wrist. He alleges this was in-part due to having the wrong kind of brace. He

was seen on sick call and got additional pain medication, but he also lodged an

emergency grievance on November 3, 2022, to seek carpal tunnel surgery because he did

not feel the alternative treatments were working. He alleges Crain and Wills were

deliberately indifferent to this grievance. (Doc. 1 at 128-29).

On November 15, 2022, Plaintiff was seen again by the orthopedic specialist who

confirmed that the soft brace Plaintiff had was not the type he intended. (Doc. 1 at 129-

30). The specialist re-ordered the brace and referred Plaintiff for surgery.

Plaintiff alleges that on November 18, 2022, Defendant Nurse Nicole Brand came

to his cell and gave him a medical permit form to sign for a new wrist brace. (Doc. 1 at

130). When she returned to collect the signed form she informed him it could still take

up to two months for the brace to arrive, which he protested. He alleges the nurse then

“gave it to him,” which constituted deliberate indifference. (Id.). Plaintiff further alleges

that Defendant M. Moldenhauer signed his medical permit when in fact the medical

director should have signed, and he alleges this somehow resulted in him not receiving

the brace. (Doc. 1 at 130). Plaintiff ultimately got the brace on December 9, 2022, a delay

which he attributes to Moldenhauer. He alleges this was deliberate indifference because

it delayed the specialist’s recommendations.

Meanwhile, Plaintiff alleges he submitted two grievances to Defendant Clara

Richmond on November 21, 2022, about the missing wrist brace, and for a status of his

surgery. (Doc. 1 at 131; Doc. 1-2 at 46-51). Plaintiff alleges he did not get responses to

these grievances until June 27, 2023, from Angela Crain. (Doc. 1-2 at 57-58). He alleges

this delay amounted to deliberate indifference. (Doc. 1 at 131-32).

Plaintiff alleges that he was approved for surgery at Menard on December 1, 2022,

but that surgery was delayed multiple times for non-medical reasons and errors. (Doc. 1

at 132-33). He ultimately did not get surgery until March 3, 2023. He attributes the four-

month delay from the specialist’s recommendation in mid-November 2022, until surgery

in March of 2023 to Wills and Crain. (Doc. 1 at 133). After surgery, Plaintiff was returned

to the prison, and then sent back out on March 20, 2023, to have his stitches removed.

(Doc. 1 at 135). He was supposed to return for a second follow-up six weeks after surgery,

but that appointment was cancelled for non-medical reasons, and he was not returned

until August 3, 2023. (Doc. 1 at 135-36). Plaintiff faults Crain and Wills for the delay.

At the end of his factual narrative, Plaintiff attributes his problems securing care

for his right wrist to a host of policies, customs or practices maintained by Wexford

Health Sources, Inc. (Doc. 1 at 137-143). Specifically, he alleges that Wexford’s policies,

customs, or practices include:

e Directing staff when conditions are pre-existing or chronic to simply

monitor and observe them instead of providing treatment;

e Directing staff to maintain doubt or suspicion of inmate’s complaints and

to misdiagnose their injuries to avoid having to offer treatment;

e Failing to maintain a full-time doctor at Menard to offer adequate medical

care;

e Giving staff full discretion to disregard inmate’s needs if it is convenient for

medical and correctional staff;

e Encouraging staff to falsify information on medical documentation to

support a misdiagnosis and to avoid offering treatment;

e Allowing Angela Crain to undermine recommendations of a provider by

having final authority to decide on recommended procedures or services;

e Directing nurses or nurse practitioners to review x-ray films and to evaluate

the need for treatment;

e Encouraging staff to prescribe ineffective courses of treatment for long

periods of time to save costs;

e Instructing medical staff to give less attention to proposed corrective

treatment that may only give some relief, and to give more weight to a

proposal only if it will make a significant difference;

e Telling staff they do not have an obligation to provide treatment simply

because an inmate requests it;

e Prescribing non-formulary or generic drugs instead of brand medications;

e Prolonging and delaying access to care to save money.

(Doc. 1 at 137-43). Asa result of all of these alleged policies, customs, or practices, Plaintiff

alleges that Wexford contributed to delays in his care which caused unnecessary pain,

and which allowed permanent damage.

Plaintiff presents an Eighth Amendment claim against Defendants Jeffreys,

Wexford, Wills, Kink, Crain, Crane, Dearmond, Brand, Moldenhauer, Florence, Yousuf,

Richmond, Pierce, Reva, and Suzie related to his injury and delayed care. (Doc. 1 at 143-

144). He alleges state law negligence or medical malpractice against Defendants Crane,

Dearmond, Yousuf, and Florence, for their early involvement in misdiagnosing him and

failing to line up specialist care. (Doc. 1 at 144-149). And he alleges state law intentional

infliction of emotional distress against all Defendants. (Doc. 1 at 149-154).

Plaintiff seeks compensatory and punitive damages, as well as many forms of

injunctive relief. (Doc. 1 at 154-155).

Based on the allegations in the Complaint, the Court will designate the following

claims:

Count 1: Eighth Amendment deliberate indifference claim against

Defendants J. Crane, Alisa Dearmond, Nicole Brand, M.

Moldenhauer, N. Florence, N. Yousuf, Nurse Reva, and

Nurse Susie concerning their handling of his right-hand

injury as medical professionals;

Count 2: Eighth Amendment deliberate indifference claim against

Defendants Rob Jeffreys, Anthony Wills, DeAnna Kink,

Angela Crain, Clara Richmond, and Kelly Pierce for their

handling of Plaintiff’s grievances and other correspondence

about his need for care;

Count 3: Monell claim against Wexford for maintaining multiple

allegedly harmful customs, policies, or practices that

prevented Plaintiff from getting timely and appropriate

care;

Count 4: State law medical negligence claim against Defendants J.

Crane, Alisa Dearmond, N. Yousuf, and N. Florence for their

early handling and diagnosis of Plaintiff’s injury;

Count 5: State law intentional infliction of emotional distress claim

against all Defendants.

The parties and the Court will use these designations in all future pleadings and orders

unless otherwise directed by a judicial officer of this Court. Any claim that is mentioned

in the Complaint but not addressed in this Order is considered dismissed without

prejudice as inadequately pled under Twombly. See Bell Atl. 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”).

Preliminary Dismissals

Throughout the complaint, there are times when Plaintiff refers to individuals by

name who were not listed in the master caption of the case, or in the list of defendants.

Examples include Sheila Ramsey and Allison Hargis, whom he discusses in relation to

the processing of his grievances. The title of the complaint must name all the parties.

FED. R. CIV. P. 10. Because Plaintiff has not properly named these individuals in the case

caption, any claims against them are dismissed without prejudice.

Throughout the vast majority of Plaintiff’s complaint, he repeatedly quotes at

length or cites state and local guidance that he believes was not followed by medical staff

and prison administrators in the handling of his injury. For example, he frequently

complains that per the Administrative Directives and Wexford’s guidance, emergency

care should have been available 24/7, and he should have been seen within 24 to 72 hours

after it was determined that his hand injury necessitated emergency care. While

contentions of this nature might point to evidence that could be used to argue that a

defendant acted with deliberate indifference, all of this state and local guidance (the

Administrative Directives, Menard’s handbook, Wexford’s handbook and treatment

protocols, etc.) does not give rise to a freestanding constitutional claim under the Eighth

Amendment because a violation of state law or local policy does not rise to the level of a

§ 1983 claim. See e.g., Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (“42

U.S.C. § 1983 protects plaintiffs from constitutional violations, not violations of state laws,

or in this case, departmental regulations and police practices.”). As such, any of Plaintiff’s

allegations premised on the failure to follow state or local directives are dismissed with

prejudice as insufficient to state a § 1983 claim against any defendant.

On a more granular level, Plaintiff alleged multiple times throughout his

complaint that he was subject to differential or discriminatory treatment based upon his

race. He hinged this assertion on the notion that he is required to report his race on a

grievance form, and the disclosure of his race as black then allowed anyone processing

his grievance to target him for worse treatment.5 (Doc. 1 at 71-72, 110-11). “The Equal

Protection Clause of the Fourteenth Amendment prohibits intentional racial

discrimination.” Williams v. Dart, 967 F.3d 625, 637 (7th Cir. 2020). To assert an equal

protection claim, a prisoner must allege that he is a member of a protected class and that

the prison treated him less favorably than other prisoners not in the class but who are

similarly situated. Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005). The Court is mindful

that the pleading standard for an Equal Protection claim is lenient6, but the Court must

still ask under Federal Rule of Civil Procedure 8(a)(2) “whether the defendant has fair

notice of what he must defend himself against and whether there is some reason to

believe he could be found liable at the end of the case.” Williams v. Dart, 967 F.3d 625,

637-38 (7th Cir. 2020) (reversing the dismissal of an Equal Protection claim at the pleading

stage where a group of detainees alleged the Sheriff targeted them for detention in

defiance of the court’s bail orders because of their race, and where they alleged that the

statistics on those detained showed that blacks were disproportionately being detained

by the Sheriff). And the Court must also ask if the allegations are plausible, or if they are

conclusory.

5 Plaintiff’s October 15, 2021, grievance had a box that made race an “optional” characteristic to disclose.

(Doc. 1-1 at 39). His November 3, 2021, grievance did not have a box for that characteristic on the template

form. (Doc. 1-1 at 45). A November 21, 2022, grievance also had an option box to report race. (Doc. 1-1 at

46). Neither the grievance officer response form nor the ARB response form appear to record race. See e.g.

(Doc. 1-1 at 50-51).

6 At the pleading stage an inmate need not identify a similarly situated individual as long as the complaint

plausibly alleges differential treatment motivated by plaintiff’s membership in a group that is distinct for

equal protection purposes. See, Hess v. Garcia, 72 F.4th 753, 760 (7th Cir. 2023) (a district court should not

have dismissed an equal protection claim at the pleading stage for lack of an identified similarly situated

individual).

Here, Plaintiff’s allegations are overly conclusory. He alleges that his grievances

were handled differently because he disclosed his race on the grievance form, but the box

allowing an inmate to record his race is clearly marked as “optional.” See e.g., Doc. 1-1 at

39. Plaintiff also does not explain beyond bald assertion how his elective decision to

tender this optional information actually impacted the processing of his grievance by the

personal actions of the defendants. Nor does he point to any information that even

remotely suggests that others experienced a different outcome by either omitting this

information or indicating a different race than his. While an inmate is not required to

affirmatively identify and present a similarly situated comparator at the pleading stage,

Plaintiff’s silence on this issue undermines the plausibility of his theory. Unlike the

plaintiffs in Williams that included some generic information about disparate impact in

their complaint that could support a plausible finding of discrimination, Plaintiff’s

allegations are based purely on speculation. As such, the Court finds that Plaintiff’s

allegations related to equal protection or discrimination are insufficient as pled. Any

equal protection claim is dismissed without prejudice.

Analysis

Claim 1

An Eighth Amendment claim arising from the denial of medical care consists of

an objective and a subjective component. Berry v. Peterman, 604 F.3d 435, 439–40 (7th Cir.

2010). A plaintiff must show that he suffered from a serious medical condition (i.e., an

objective standard) and also show that each defendant responded with deliberate

indifference (i.e., a subjective standard). Id. To satisfy the subjective component, a

prisoner must demonstrate that an official knew of and disregarded an excessive risk to

inmate health. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Neither medical

malpractice, nor mere disagreement with a doctor’s medical judgment will amount to

deliberate indifference. Id. Additionally, an inmate is not entitled to demand specific

care, and a medical professional may choose from a range of acceptable courses of care.

Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 965 (7th Cir. 2019). If an inmate alleges

a delay in treatment, he must present verifying medical evidence that the delay, and not

the medical condition itself, cause some harm. Jackson v. Pollion, 733 F.3d 786, 790 (7th

Cir. 2013). He must also show it was the defendant’s actions or inaction that caused the

delay in treatment. Walker, 940 F.3d at 964.

Here, Plaintiff alleges that he fractured his hand defending himself during a fight

on August 16, 2021, but he was not seen by a specialist to confirm his injury until February

8, 2022, and he did not undergo surgery that provided any relief for his pain until March

of 2023. At first glance, these allegations are plainly enough to proceed on a claim of

deliberate indifference because Plaintiff insists that he repeatedly contacted medical

providers about his ongoing extreme pain and suffering, and he showed them a severely

swollen and deformed hand on multiple occasions. However, it is also important to note

that Plaintiff did receive at least some care during the months from his injury until

surgery, and when carpal tunnel surgery was initially suggested in February of 2022 by

a specialist, he declined to undergo that surgery at the time for fear it would make him

vulnerable in a maximum-security prison environment. When he saw a specialist a

second time in October or November of 2022 the specialist offered alternative methods to

try to mitigate his problems to try before surgery, and it was after trying those alternatives

for only a month that Plaintiff then opted to demand immediate surgery. Given the sheer

length of Plaintiff’s complaint, the Court did not recite every obscure detail of his

complaint in the factual summary above, but it is important to note that the Court did

carefully read everything and that it took stock of the things Plaintiff said and

demonstrated in exhibits. Having thoroughly read the complaint, and having reviewed

supporting exhibits, the Court finds that this case is likely more nuanced than is

suggested by a high-level initial review.

The Court will not discuss every medical provider in great detail here, however, a

few warrant specific discussion. First, Plaintiff alleges that during medication rounds on

the day of his injury, he flagged down Defendant Nurse Reva and showed her his swollen

right hand. He asked for pain medication and a doctor’s visit to address his injury, but

Reva offered nothing. Instead of helping him, Reva simply told him there was nothing

that she could do, and she told Plaintiff to file a sick call slip. Plaintiff contests this

response for many reasons related to administrative directives and Reva’s obligation as

a medical professional. He also alleges this was deliberate indifference. Plaintiff also

states that the next day he attended sick call. Against this backdrop, the Court is not

convinced that a single interaction with a nurse, who was doing rounds in the cellhouse

for a different purpose, is sufficient to sustain a claim for deliberate indifference. Plaintiff

does not suggest he made any other efforts to inform other prison staff of his injury on

that day, and it is not apparent that the staff who reported to the altercation when he

injured his hand believed that he was severely injured. As such, the Court finds that

Plaintiff does not have sufficient factual allegations to sustain an Eighth Amendment

claim against Nurse Reva for this single brief encounter, and it will dismiss Claim 1

against her without prejudice.

Likewise, Plaintiff alleges that he saw Defendant Nurse Suzie on a single occasion

on May 14, 2022, at nurse sick call. (Doc. 1 at 116). He informed Suzie of his hand injury,

and he told her that Angela Crain was denying his requests for a follow-up specialist

appointment to consider surgery and she was depriving him of pain for his carpal tunnel

nerve damage. Plaintiff alleges Suzie said she would contact Crain, but she did not

provide any other assistance. Like the brief interaction with Reva, the Court also finds

that this brief single interaction with Suzie is insufficient to form a basis for an Eighth

Amendment deliberate indifference claim. Plaintiff explained that all of his problems

stemmed from Crain either denying or ignoring his grievances, and Suzie promised to

contact Crain. It’s not clear what else Plaintiff expected Suzie to do on his behalf since he

seemed to believe Crain’s authorization was needed to get what he sought. As such,

Claim 1 against Nurse Suzie is dismissed without prejudice.

Additionally, Plaintiff alleges that Nurse Nicole Brand violated his rights on

November 18, 2022, when she came to his cell and asked him to sign a medical permit

form for his right wrist brace. (Doc. 1 at 130). Plaintiff alleges when Brand came back to

collect her copy of the form, that she did not have a brace to give him and instead

informed him it could take up to two months to arrive. Plaintiff admits later that he got

the brace on December 9, 2022, just weeks after Brand asked him to sign the permit form.

(Doc. 1 at 131-32; Doc. 1-2 at 57 (Memorandum indicating the permit for the second brace

was delivered on December 9, 2022)). Based on this series of interactions, Plaintiff has

not stated a valid deliberate indifference claim against Defendant Brand and Claim 1 is

dismissed as to Brand without prejudice.

This leaves Defendants J. Crane, Alisa Dearmond, M. Moldenhauer, N. Florence,

and N. Yousuf, as medical professionals whom Plaintiff alleges were deliberately

indifferent to his serious medical condition. Other than N. Florence, these providers all

saw Plaintiff in person or participated in reviewing images and diagnosing his condition

on multiple occasions. N. Florence is notable because, despite only appearing to review

x-ray films once, the films he reviewed were the first ones taken after Plaintiff’s injury.

As medical professionals who were directly involved in the decision-making process to

assess, diagnose and treat Plaintiff’s injury, the Court finds that Plaintiff’s allegations

against these providers are sufficient to proceed beyond initial review.

It is important to note that it is not entirely clear if Defendants N. Florence and N.

Yousuf are employees of the state or of Wexford (the state’s medical contractor for prison

healthcare). Plaintiff refers to these individuals as radiologists and employees of

OneRadiology in Normal, Illinois. This place of employment tracks with the exhibits to

his complaint. See e.g., Doc. 1-1 at 29 (Dr. Florence’s radiology report); Doc. 1-1 at 32 (Dr.

Yousuf’s radiology report). Nevertheless, the viability of this claim will turn on inquiries

that the Court cannot complete at the stage of initial review. First, the Court will need to

determine, through a “functional inquiry” what the relationship is between the state and

Drs. Florence and Yusuf. See Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 797-98 (7th

Cir. 2014) (“whether a medical provider is a state actor is a functional inquiry, focusing

on the relationship between the state, the medical provider, and the prisoner.”) This is

true because § 1983 liability is only proper against those who are “state actors,” and not

all private doctors that provide care to inmates are considered “state actors.” See e.g.

Manzanales v. Krishna, 113 F.Supp.3d 972, 980-81 (N.D. Ill. June 30, 2015) (finding that the

factual allegations in the complaint were not sufficient to determine if the private doctors

were state actors for purposes of § 1983 at the motion to dismiss stage); Rackemann v.

Robinson, 2019 WL 4737194 at *2-3 (S.D. Ind. Sept. 27, 2019) (granting summary judgment

in favor of a doctor because he was not a ‘state actor’ for purposes of § 1983 where he

only occasionally saw patients from the prison at a local hospital, and where he was

privately employed). The Complaint provides insufficient information to determine if

Drs. Florence or Yusuf are or are not state actors, so construing the complaint broadly in

Plaintiff’s favor, he will be allowed to proceed against Drs. Florence and Yusuf at this

stage.

In sum, Plaintiff may proceed against Defendants J. Crane, Alissa Dearmond, M.

Moldenhauer, N. Florence, and N. Yusuf related to their treatment and handling of his

injury from August 2021 onward.

Claim 2

Aside from the medical personnel, Plaintiff devoted a substantial portion of his

complaint to the involvement of administrative or non-medical prison personnel for their

role in responding to his injury. Defendant Clara Richmond was a counselor who

received grievances from him, Defendant Kelly Pierce was a grievance officer who was

involved in some of his grievances, Defendants Angela Crain (healthcare administrator)

and Anthony Wills (warden) participated in processing his grievances at the last level of

review, and Defendants Rob Jeffreys and DeAnna Kink participated in the final stage of

review at the Administrative Review Board.

Generally, the mere role of processing a grievance is not enough to give rise to

constitutional liability. See e.g., Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (the

alleged mishandling of a grievance by an official who did not cause the underlying

conduct states no claim). To be liable, an individual must have either caused or

participated the underlying harm, or they must have blatantly turned a blind eye to a

serious issue for fear of what they might learn. Id., see also Perez v. Fenoglio, 792 F.3d 768,

781-82 (7th Cir. 2015) (a prison official may not turn a blind eye to an inmate’s plight).

Prison administrators are allowed to defer to the expertise of medical professionals in the

review of grievances, but they cannot shirk all knowledge of or responsibility for a serious

situation if they fail to ensure an adequate investigation into a grieved issue. Hayes v.

Snyder, 546 F.3d 516, 527-28 (7th Cir. 2008) (“the presumption that non-medical officials

are entitled to defer to the professional judgment of the facility’s medical officials on

questions of prisoners’ medical care is a sound one.”)

Plaintiff’s allegations closely straddle the divide between what is enough and what

is not enough to make out an Eighth Amendment claim. As to Defendant Clara

Richmond, a counselor, Plaintiff alleges that on November 21, 2022, he submitted two

grievances to her complaining that he did not get the appropriate wrist brace from Nicole

Brand, and demanding carpal tunnel surgery because the alternative forms of treatment

were not working. (Doc. 1 at 131). Remember, Plaintiff got his wrist brace on December

9, 2022, and records show that Plaintiff was referred for carpal tunnel surgery on

December 1, 2022. In light of this information, it is not clear what Richmond would have

done, but that is beside the point. The records also show that Richmond noted his

grievances as received on November 23, 2022, and that when she got responsive

memorandums back from the healthcare unit in late May of 2023, she transmitted those

to Plaintiff. (Doc. 1-2 at 46-51; 56-57). By the time Richmond got responses from Crain,

Plaintiff had already received the wrist brace and had the requested surgery. (Id. at 56-

57). Against this backdrop, it does not appear that Richmond did anything more than

process the grievances as a counselor and transmit them through the needed channels for

input from the medical unit. The simple processing of grievances, even if erroneous, is

not sufficient to state a claim. Accordingly, Claim 2 against Defendant Richmond is

dismissed without prejudice.

As to Defendants Rob Jeffreys (the former head of IDOC) and DeAnna Kink (a

member of the Administrative Review Board), Plaintiff also has little by way of

allegations that suggest they knowingly turned a blind-eye to his plight. Plaintiff would

have the reader believe that Kink and Jeffreys first gained knowledge of his problems by

his appeal of his second emergency grievance, that he claims he submitted because he

had not gotten a response to the first, and which they ultimately denied as duplicative.

Plaintiff’s presentation of the facts does not completely square with the exhibits he

presented. Although he alleges in his factual allegations that he never got a response at

the prison to his first emergency grievance, the exhibits to his complaint suggest a

different story. The grievance officer’s response to Plaintiff’s second emergency

grievance indicated that it was a duplicate of the first, so it would not be addressed

further. (Doc. 1-1 at 50). When Plaintiff appealed this outcome to the ARB, the ARB

indicated that it had “previously addressed this issue on 11.29.21” and that it was a

duplicate with his first emergency grievance. These notations both strongly suggest that

the ARB received and reviewed an appeal of Plaintiff’s first emergency grievance either

at the same time or shortly after his appeal of his second emergency grievance.

On these facts, the Court does not find that Plaintiff has a plausible claim against

Jeffreys and Kink for turning a blind eye to his situation. The Court acknowledges that

Plaintiff made additional allegations about Jeffreys and Kink’s participation in reviewing

more grievances, but it is not persuaded on the facts available that these two officials did

anything more than review grievances in the ordinary course of business, with deference

given to medical professionals. For example, in response to a February 15, 2022,

grievance in which Plaintiff asked for surgery shortly after his first visit to the orthopedic

specialist, Kink reported that “per HCUA—medical reports from Orthopedic specialist

indicate surgery is not suggested at this point.” (Doc. 1 at 76). This finding by Kink is

supported by the records from the orthopedic visit, which indicated “[i]t was explained

to the patient this does not appear to be a surgical issue. Surgery would be less than

optimal.” (Doc. 1-1 at 63). The same visit notes also indicate that the provider discussed

carpal tunnel surgery with Plaintiff, but he was “not interested at [that] point in carpal

tunnel surgery.” (Doc. 1-1 at 63). With this information from a medical specialist

immediately prior to Plaintiff’s February grievance, it is not plausible that Kink or Jeffreys

would have had any reason to doubt that Plaintiff was receiving ongoing care deemed

adequate by professionals, or that they needed to investigate further. As such, the Court

will dismiss Claim 2 against Defendants Kink and Jeffreys because their involvement

seems to be nothing more than the administrative review of grievances with deference to

treating professionals.

On the local level, Plaintiff alleges that grievance officer Kelly Pierce was involved

in the processing of his emergency grievances, and thus was deliberately indifferent to

the emergency care he needed. (Doc. 1 at 44, 52-59). Plaintiff makes a variety of

allegations against Pierce. For example, he alleges that if she had begun to investigate his

emergency grievance when she received it, she would have discovered that Dr. Yusuf

had twice suggested that he see an outside doctor.7 Plaintiff also suggests that Pierce left

him to suffer for many months without pain medication, but the medical records that he

submitted show that he had Ibuprofen 600mg for a week from August 20, 2021, and again

from September 1, 2021 to October 3. (Doc. 1-1 at 27, 33). He also was prescribed

Naproxen 500mg on December 1, 2021, until February 1, 2022. (Doc. 1-1 at 53). His next

sick call slip complaining of pain that he included with his complaint was not tendered

until October 28, 2021. (Doc. 1-1 at 43).

At the stage of initial review, the Court reads the complaint broadly in Plaintiff’s

favor and construes any plausible inferences on his behalf to support a claim. In doing

so on the facts presented, the Court will allow Plaintiff to proceed against Defendant

Pierce on the theory that she may have turned a blind eye to issues presented in the

7 This assertion appears to be an exaggeration of Dr. Yusuf’s notes. The radiology reports from Dr. Yusuf

stated on two occasions, “if symptoms persist or progress, a follow-up study may be considered.” (Doc. 1-

1 at 32, 38). This language does not clearly indicate a referral to an outside provider, as Plaintiff contends.

grievances or may have acted more slowly in response to an emergency grievance than

was appropriate. However, the Court set forth the factual details in the previous

paragraph about Plaintiff’s underlying care to signal that, although it is reading the

complaint broadly in Plaintiff’s favor, there is significant doubt about the ultimate

viability of a claim for turning a blind-eye against Pierce. If records ultimately show that

she was timely in contacting the healthcare unit about Plaintiff’s grievance, and if she was

awaiting a response or had information that a course of care was ongoing, then Plaintiff

will not be able to prevail on a deliberate indifference claim against her for her role in

processing his grievances.

Finally, Plaintiff has alleged at great length that Defendants Wills and Crain did

not do enough in response to his multiple grievances about his hand injury, as well as in

response to his correspondence that he sent on multiple occasions in addition to the

grievances. Plaintiff’s allegations against Wills and Crain, and the details he gives about

their involvement in his medical situation are much more comprehensive than the

information provided about the other defendants associated with Claim 2. For example,

Plaintiff alleges that Crain was aware of his medical situation at the latest by October of

2021 when his first grievance was deemed an emergency, but when he was referred for a

specialist visit in early December of 2021, he claims Crain delayed in approving the visit

despite knowing of his situation and/or she allowed it to be scheduled for more than two

months from the date it was originally recommended. Allegations of this nature suggest

sufficient personal involvement by Crain both through the receipt, investigation and

responses to grievances, as well as through her role as the healthcare unit administrator.

The Court will also allow Plaintiff to proceed against Defendant Wills for his

handling of Plaintiff’s grievances, which he deemed emergencies on multiple occasions.

While the Court is not convinced that Plaintiff’s first emergency grievance went entirely

unanswered at the prison, the records do suggest that it may not have been processed in

a very expedient fashion, and that possibly to get a response to it, Plaintiff did have to

submit the second emergency grievance before it shook things free. Against this

backdrop, it is plausible to infer that Wills was notified of a medical condition that he

viewed as urgent based on Plaintiff’s allegations, and that perhaps he was not diligent in

ensuring the emergency grievance was handled in an expeditious fashion. While Wills

is certainly entitled to defer to the medical professionals, his deference cannot be blind

and unthinking, and he cannot simply deem a grievance an emergency and forget about

it. Reading the complaint broadly in Plaintiff’s favor, he has provided sufficient

allegations about Wills’ involvement in his question for care to proceed on Claim 2

against Wills.

One additional thing is worth mention in relation to Wills and Crain. Plaintiff

alleges at great length in his complaint that Wills and Crain were liable for harm he

suffered because in their roles as high-level administrators they had various

responsibilities and duties to ensure the adequate provision of care and emergency

services at the prison. These allegations are almost entirely rooted in Plaintiff’s extensive

citations to state law and local directives, which the Court already explained to be

deficient in the preliminary dismissal section. However, it is also worth noting that there

is no general theory of respondeat superior liability under § 1983. Burks v. Raemisch, 555

F.3d 592, 593-94 (7th Cir. 2009) (“Section 1983 does not establish a system of vicarious

responsibility. Liability depends on each defendant’s knowledge and actions, not on the

knowledge or actions of the persons they supervise.”). So, to the extent that Plaintiff

attempted to present additional theories for relief against Wills or Crain premised solely

on their leadership roles, he cannot succeed, and any such claims are dismissed without

prejudice.

Claim 4

In Claim 4, Plaintiff alleges that Defendants J. Crane, Alissa Dearmond, and Drs.

Florence and Yusuf should be held liable for negligence or medical malpractice under

state law. Because the Court has allowed Claim 1 to proceed against these Defendants, it

will also allow Plaintiff to proceed on Claim 4 for the time-being. However, if these

parties are later dismissed from this suit (like if Florence and Yusuf are not state actors),

then the Court will also decline to exercise further supplemental jurisdiction over this

claim as to any dismissed party.

Claim 5

In Claim 5 Plaintiff alleges in broad terms that all defendants’ actions amounted

to the intentional infliction of emotional distress. To state a claim for intentional infliction

of emotional distress (“IIED”) under Illinois common law, a plaintiff must show that: (1)

the defendant's conduct was extreme and outrageous; (2) the defendant intended to

inflict severe emotional distress or knew there was a high probability that his conduct

would cause severe emotional distress; and (3) the defendants' conduct did cause severe

emotional distress. Lifton v. Bd. of Educ. of City of Chi., 416 F.3d 571, 579 (7th Cir. 2005).

Conduct is extreme and outrageous only if “the conduct has been so outrageous in

character and so extreme in degree, as to go beyond all possible bounds of decency....”

Public Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976); Cook v. Winfrey, 141 F.3d 322,

331 (7th Cir. 1998).

Based on Plaintiff’s detailed allegations about his injury, his attempts to secure

care, and his allegations that he was so distraught he sought mental health care to cope,

the Court will allow him to proceed on Claim 5 at this juncture against Defendants J.

Crane, Alissa Dearmond, N. Florence, N. Yousuf, M. Moldenhauer, Kelly Pierce, Angela

Crain, Anthony Wills, and Wexford Health Sources, Inc.. By contrast, the Court declines

to exercise supplemental jurisdiction over any potential IIED claim against any defendant

for whom all other claims are being dismissed in this order (Nurse Reva, Nurse Suzie,

Nicole Brand, Clara Richmond, Rob Jeffreys, and DeAnna Kink).

Motion for Class Certification

Plaintiff seeks to certify this matter as a class action on the notion that the relief he

seeks and the problems he describes are common to all people currently incarcerated in

the IDOC. (Doc. 2 at 1). He describes common questions such as: the adequacy of

healthcare in IDOC, the constitutionality of Wexford’s policies, and the prison’s ability to

follow its own healthcare directives. (Doc. 2 at 1-2). To be certified as a class, Plaintiff

must first satisfy the four elements in Rule 23(a): numerosity, commonality, typicality,

and adequacy of representation. See Messner v. Northshore Univ. Health Sys., 669 F.3d 802,

811 (7th Cir. 2012). Then, the case must fall under one of the conditions specified in Rule

23(b). See FED. R. CIV. P. 23(a), (b); Lacy v. Cook Cnty., 897 F.3d 847, 864 (7th Cir. 2018).

Here, Plaintiff cannot satisfy the element of adequacy of representation because as a

nonlawyer, he cannot represent the other potential members of the class. See Howard v.

Pollard, 814 F.3d 476, 478 (7th Cir. 2015) (“[I]t is generally not an abuse of discretion for a

district court to deny a motion for class certification on the ground that a pro se litigant

is not an adequate class representative.”) (emphasis omitted). Therefore, this motion

(Doc. 2) will be denied.

Motion for Recruitment of Counsel

Plaintiff has moved for recruited counsel (Doc. 4). He indicated that he is a high-

school graduate with some college education. (Doc. 4 at 2). Plaintiff’s Motion (and

exhibits to his complaint) show that he has corresponded with a variety of attorneys from

whom he sought representation. (Doc. 4 at 1, Doc. 1-3 at 35-57). Plaintiff also included a

memorandum in support of his request for counsel wherein he explained his concerns

about the complexity of his case, including his belief that he will need expert testimony,

that he wishes to pursue a class action, that his ability to investigate his claims is hindered

by his incarceration, and that there may be conflicted testimony, among other things.

(Doc. 4 at 5-6).

There is no right to the appointment of counsel in civil matters. Romanelli v.

Suliene, 615 F.3d 847, 851 (7th Cir. 2010). When presented with a request to appoint

counsel, the Court must consider: “(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). Plaintiff has clearly attempted to retain

his own counsel, but this is not the end of the inquiry. At this very early juncture, Plaintiff

has done a sufficient job presenting his claims, and the next stages will involve the

exchange of basic information and will not yet include any of the complex tasks for which

Plaintiff expressed concern in his supporting memorandum. Based on the early status of

this litigation, the Court will deny Plaintiff’s motion without prejudice.

Disposition

IT IS HEREBY ORDERED THAT Claim 1 of the Complaint (Doc. 1) survives

against Defendants J. Crane, Alissa Dearmond, N. Florence, N. Yusuf, and M.

Moldenhauer, Claim 2 survives against Kelly Pierce, Anthony Wills and Angela Crain,

Claim 3 survives against Wexford, and Claim 4 survives against J. Crane, Alissa

Dearmond, N. Yusuf, and N. Florence, and Claim 5 survives against Defendants J. Crane,

Alissa Dearmond, N. Florence, N. Yusuf, M. Moldenhauer, Anthony Wills, Angela Crain,

and Wexford. By contrast, Claim 1 is dismissed as insufficient against Nurse Reva, Nurse

Suzie and Nicole Brand, Claim 2 is dismissed as insufficient against Clara Richmond,

DeAnna Kink, and Rob Jeffreys, and Claim 5 is dismissed as insufficient against Nurse

Reva, Nurse Suzie, Nicole Brand, Clara Richmond, DeAnna Kink, and Rob Jeffreys. The

Clerk of Court is DIRECTED to TERMINATE Defendants Nurse Reva, Nurse Suzie,

Nicole Brand, Clara Richmond, DeAnna Kink, and Rob Jeffreys, for failure to state a

claim.

The Clerk of Court is DIRECTED to prepare for Defendants: J. Crane, Alissa

Dearmond, N. Florence, N. Yusuf, M. Moldenhauer, Kelly Pierce, Angela Crain, Anthony

Wills and Wexford Health Sources, Inc.: (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 (Doc. 1), and this

Memorandum and Order to Defendants’ 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 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 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. Address information 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 Merits 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 was granted. See 28

U.S.C. § 1915(f)(2)(A).

Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk

of Court and each opposing party of any address changes; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later

than 14 days after a change of 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 failure to prosecute. FED. R. CIV. P. 41(b).

The Clerk of Court is DIRECTED to enter the standard HIPAA Order in this case

because it will involve the exchange of medical records.

Plaintiff's Motion for Counsel (Doc. 4) is DENIED without prejudice. Plaintiff's

Motion for Class Certification (Doc. 2) is also DENIED.

IT IS SO ORDERED. A Z

Dated: January 26, 2024

DAVID W.DUGAN

United States District Judge

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 the 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 of the defendants

have filed 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 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. Plaintiff need not

submit any evidence to the Court at his time, unless otherwise directed by the Court.

The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles

that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but

it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening

only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some

relief. At trial, he will need to prove by a preponderance of evidence that the facts alleged

actually occurred and that those facts satisfy the legal requirements for recovery. Trial is

the highest and most difficult of hurdles for any Plaintiff to clear.