The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
HENRY SMITH, )
Plaintiff, )
)
v. ) Case No. 1:24-cv-1491-SEM-DJQ
)
J. BROWN, )
Defendant. )
MERIT REVIEW ORDER
SUE E. MYERSCOUGH, United States District Judge:
Plaintiff pro se Henry Smith has filed a Complaint (Doc. 1)
pursuant to Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), a Motion to Request
Counsel (Doc. 5), and a Motion for Leave to File Amended
Complaint (Doc. 8), which are now before the Court.
I. Screening Standard
The Court must “screen” Plaintiff’s complaint and dismiss any
legally insufficient claim or the entire action if warranted. 28 U.S.C.
§ 1915A. A claim is legally insufficient if it “(1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” Id. In reviewing the complaint, the Court
accepts the factual allegations as accurate, liberally construing
them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649
(7th Cir. 2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to “state a claim for
relief that is plausible on its face.” Alexander v. United States, 721
F.3d 418, 422 (7th Cir. 2013) (citation omitted).
II. Facts Alleged
In the Complaint (Doc. 1), Plaintiff alleges that he fell on an icy
sidewalk at the Federal Correction Institute in Pekin, Illinois (“FCI
Pekin”), on January 22, 2024. Defendant is J. Brown, whom
Plaintiff identifies in the Complaint as the Healthcare Administrator
at FCI Pekin.
Plaintiff was diagnosed with a broken arm two days later, on
January 24, 2024. Plaintiff alleges that he was scheduled to see an
orthopedic doctor at an outside clinic on January 26, 2024, but
that due to Defendant’s failure to make proper arrangements he
was not actually seen until six weeks later, on March 1, 2024.
As a result of the delay, Plaintiff alleges that his arm had
already healed improperly and the surgery therefore included
rebreaking his arm and fitting it with a plate and screws. Plaintiff
alleges he is suffering excruciating pain from a “botched operation.”
He further alleges that he has only 50 percent use in his right
(dominant) arm.
Finally, Plaintiff alleges in his Complaint that Defendant
refuses to send him to an outside doctor for the removal of the plate
and screws, which Plaintiff alleges are causing him pain. In his
Motion to Amend Complaint, Plaintiff adds only that Defendant is
“refusing to reschedule” his appointment to have a doctor remove
the plate and screws from his arm.
III. Analysis
As a preliminary matter, the Court typically does not accept
piecemeal amendments to pleadings. Rather, a motion to amend
complaint should include as an attachment a proposed amended
complaint that would completely replace the original complaint and
would stand on its own without reference to or reliance upon the
earlier complaint. See Flannery v. Recording Indus. Ass’n of Am.,
354 F.3d 632, 638 n.1 (7th Cir. 2004).
Regardless, Plaintiff’s allegation that Defendant is interfering
in some way his appointments to remove the plate and screws is
adequately alleged in the initial Complaint. Therefore, the Motion to
Amend (Doc. 8) is DENIED as MOOT. The original Complaint will
remain the operative pleading.
Turning to the allegations in Plaintiff’s Complaint, in order to
state an Eighth Amendment deliberate indifference claim, Plaintiff
must allege that (1) he suffered an objectively serious medical need
and (2) Defendant was deliberately indifferent to that need. Further,
“an inmate who complains that delay in medical treatment rose to a
constitutional violation must...[allege] the detrimental effect of delay
in medical treatment.” Langston v. Peters, 100 F.3d 1235, 1240 (7th
Cir. 1996).
Plaintiff has adequately alleged that he suffered an objectively
serious medical need when he broke his arm. At this stage, he has
also adequately alleged that a delay in treatment for his broken arm
had a detrimental effect because the surgery was more complicated
and less effective, resulting in pain and reduced use of his arm.
As for allegations that the delay was a result of deliberate
indifference by Defendant, at this stage the Court liberally
construes the facts alleged in the Complaint in Plaintiff’s favor. See
Turley, 729 F.3d at 649. Plaintiff has plausibly alleged that he was
promptly scheduled to see an outside surgeon just two days after
his diagnosis with a broken arm, but that he was not actually seen
for an additional six weeks due to Defendant’s failure to make
necessary arrangements for the appointment. Similarly, Plaintiff
alleges that Defendant is refusing to schedule follow-up care,
despite the surgery allegedly causing extreme pain and other
complications.
Plaintiff may therefore proceed on an Eighth Amendment
medical deliberate indifference claim against Defendant J. Brown.
IV. Request for Counsel
Plaintiff has also filed a Motion to Request Counsel (Doc. 5).
A pro se litigant has no right to counsel in a civil case. Olson v.
Morgan, 750 F.3d 708, 711 (7th Cir. 2014). However, the federal
statute authorizing in forma pauperis status provides a court “may
request an attorney to represent any person unable to afford
counsel.” See 28 U.S.C. 1915(e)(1). A court does not have the
authority to require an attorney to accept pro bono appointments in
civil cases. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
When considering a request for counsel by a pro se litigant the
Court undertakes a two-part inquiry: (1) whether the plaintiff made
a reasonable attempt to obtain counsel or has 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 at 655.
As to the first inquiry, plaintiffs normally make this showing
by filing copies of letters sent to several attorneys seeking
assistance, along with copies of the responses they received from
the attorneys they contacted. Plaintiff has not done so, nor has he
included any other information suggesting that he has made any
attempts to obtain counsel. Because Plaintiff has not satisfied this
first, threshold requirement, his Motion to Request Counsel (Doc. 5)
is DENIED.
IT IS THEREFORE ORDERED:
1) Plaintiff’s Motion for Leave to File Amended Complaint [8]
is DENIED as MOOT, and the original Complaint [1]
remains the operative pleading in this case.
2) Plaintiff’s Motion to Request Counsel [5] is DENIED.
3) According to the Court’s Merit Review of Plaintiff’s
Complaint under 28 U.S.C. § 1915A, Plaintiff has alleged
enough facts to proceed with an Eighth Amendment
medical deliberate indifference claim against Defendant
Brown. Additional claims shall not be included in the case,
except at the Court’s discretion on motion by a party for
good cause shown or under Federal Rule of Civil Procedure
15.
4) The Clerk of Court is directed to send, by certified mail, a
Waiver of Service, a copy of Plaintiff’s Complaint, and a
copy of this Order to Defendant Brown at FCI Pekin.
Summons must also be sent to the United States Attorney
for the Central District of Illinois, the Attorney General of
the United States, and the Federal Bureau of Prisons.
5) This case is now in the process of service. The Court
advises Plaintiff to wait until counsel has appeared for
Defendant before filing any motions, to give 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 evidence to the Court unless otherwise
directed by the Court.
6) If Defendant has not filed an Answer or appeared through
counsel within ninety days of the entry of this Order,
Plaintiff may file a motion requesting the status of
service. After Defendant has been served, the Court will
enter an order setting discovery and dispositive motion
deadlines.
7) If Defendant no longer works at the address provided by
Plaintiff, the entity for whom that Defendant worked while
at that address shall submit to the Clerk said Defendant’s
current work address or, if not known, said Defendant’s
forwarding address. This information shall be used only for
effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not
be maintained in the public docket nor disclosed by the
Clerk.
8) This District uses electronic filing, which means that,
after Defendant’s counsel has filed an appearance, counsel
will automatically receive electronic notice of any motion
or other paper filed by Plaintiff with the Clerk. Therefore,
Plaintiff does not need to mail copies of motions and other
documents that Plaintiff has filed with the Clerk to
Defendant’s counsel. However, this does not apply to
discovery requests and responses. Discovery requests and
responses are not filed with the Clerk. Instead, Plaintiff
must mail his discovery requests and responses directly to
Defendant’s counsel. Discovery requests or responses sent
to the Clerk will be returned unfiled unless they are
attached to and the subject of a motion to compel.
Discovery does not begin until Defendant’s counsel have
filed an appearance, and the Court has entered a
scheduling order, which will explain the discovery process
in more detail.
9) Defendant’s counsel is granted leave to depose Plaintiff.
Defendant’s counsel shall arrange the time for the
deposition.
10) Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff’s failure to inform the Court of a change in
mailing address or phone number will result in the
dismissal of this lawsuit with prejudice.
11) The Court directs the Clerk to enter the standard qualified
protective order under the Health Insurance Portability
and Accountability Act.
ENTERED September 18, 2025.
s/ Sue E. Myerscough
____________________________________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE