Davey

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

JERRY DAVEY, )

Plaintiff, )

)

v. ) Case No. 3:25-cv-03296-SEM

)

ZORIAN TRUSEWYCH et al., )

Defendants. )

ORDER

SUE E. MYERSCOUGH, United States District Judge:

Before the Court is a Motion for Leave to File an Amended

Complaint (Doc. 11) filed under 42 U.S.C § 1983, a Motion for

Extension of Time (Doc. 12), and a Motion for Counsel (Doc. 5) filed

by Plaintiff Jerry Davey, an inmate at Western Illinois Correctional

Center (“WICC”).

Plaintiff’s Motions for extension of time and for leave to file an

amended pleading are granted. The Court concludes that Plaintiff’s

account is sufficient to state Eighth Amendment deliberate

indifference to serious medical needs claims against Healthcare

Unit (“HCU”) Administrators Black and Burke, Licensed Practical

Nurse Dixon, and Dr. Zorian Trusewych (deceased). Plaintiff also

states a plausible policy claim against Wexford Health Sources,

Incorporated (“Wexford”) pursuant to the Supreme Court’s decision

in Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978).

Because Plaintiff does not name or assert any claim against

former WICC Warden Britanny Greene, Illinois Department of

Corrections Director Latoya Hughes, or Administrative Review

Board member Rebecca Riggs, as Plaintiff raised in his dismissed

initial pleading (Doc. 1), Greene, Hughes, and Riggs are dismissed

as parties. Plaintiff’s Motion for Counsel is denied.

I. AMENDED COMPLAINT

A. Screening Standard

The Court must “screen” Plaintiff’s pleading 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. Upon reviewing the complaint, the

court accepts the factual allegations as accurate, construing them

liberally 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).

B. Factual Allegations

Plaintiff alleges constitutional violations at WICC against the

following officials: Healthcare Unit (“HCU”) Administrators Black

and Burke, Licensed Practical Nurse Dixon, Dr. Zorian Trusewych

(deceased), and Wexford Health Sources, Incorporated (“Wexford”).

Plaintiff asserts that he repeatedly explained to Defendants

that he has chronic prostatitis,1 which has caused him to urinate

hourly and has resulted in sleep deprivation, but Defendants have

not taken any action. Plaintiff also asserts that Wexford has

instituted a policy requiring every inmate to attend sick call three

times before being referred to a physician for treatment.

C. Analysis

Plaintiff’s Motions for an Extension of Time (Doc. 12) to file his

amended pleading and for Leave to File an Amended Complaint

1 “Prostatitis is a condition of the prostate gland most often linked with swelling and irritation, called inflammation.

Prostatitis can make it painful or hard to urinate. It also may cause pain in the groin, pelvic area or genitals.” Mayo

Clinic, Prostatitis, https://www.mayoclinic.org/diseases-conditions/prostatitis/symptoms-causes/syc-20355766 (last

visited May 1, 2026).

(Doc. 11) are granted. The Clerk of the Court is directed to docket

Plaintiff’s amended pleading (Doc. 11 at 3-12.)

“Prison officials violate the Eighth Amendment’s proscription

against cruel and unusual punishment when their conduct

demonstrates ‘deliberate indifference to serious medical needs of

prisoners.’” Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997)

(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To succeed on

a claim of deliberate indifference to a serious medical need, a

plaintiff must satisfy a test that contains both an objective and

subjective component. Vance v. Peters, 97 F.3d 987, 991 (7th Cir.

1996).

Under the objective component, a plaintiff must demonstrate

that his medical condition is sufficiently severe. Farmer v. Brennan,

511 U.S. 825, 834 (1994). Under the subjective component, the

prison official must have acted with a “sufficiently culpable state of

mind.” Id. Thus, a plaintiff can establish deliberate indifference by

showing that a defendant “knew of a substantial risk of harm to the

inmate and disregarded the risk.” Greeno v. Daley, 414 F.3d 645,

653 (7th Cir. 2005).

“A medical professional acting in his professional capacity may

be held to have displayed deliberate indifference only if the decision

by the professional is such a substantial departure from accepted

professional judgment, practice, or standards, as to demonstrate

that the person responsible actually did not base the decision on

such a judgment.” Rasho v. Elyea, 856 F.3d 469, 476 (7th Cir.

2017) (quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)

(internal quotation marks omitted)).

Plaintiff’s account is sufficient to state an Eighth Amendment

deliberate indifference to serious medical needs claims against

Defendants Black, Burke, Dixon, and Trusewych.

Defendant Wexford can be held liable under § 1983 if an

unconstitutional act is caused by: “(1) an official policy adopted and

promulgated by its officers; (2) a governmental practice or custom

that, although not officially authorized, is widespread and well

settled; or (3) an official with final policy-making authority.” Thomas

v. Cook Cty. Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2010); see

also Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927-28

(7th Cir. 2004) (stating that municipal liability under Monell applies

to corporations as well). “The ‘official policy’ requirement was

intended to distinguish acts of the municipality from acts of

employees of the municipality, and thereby make clear that

municipal liability is limited to action for which the municipality is

actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469,

479 (1986) (emphases in original).

Plaintiff’s allegation that Wexford instituted a policy that

requires every inmate to attend sick call three times before being

referred to a physician for treatment is also sufficient to state a Monell

claim against Wexford.

However, because Plaintiff does not name or assert any claim

against former WICC Warden Britanny Greene, Illinois Department

of Corrections Director Latoya Hughes, or Administrative Review

Board member Rebecca Riggs, as Plaintiff raised in his dismissed

initial pleading (Doc. 1), Greene, Hughes, and Riggs are dismissed

as parties. See Carver v. Condie, 169 F.3d 469, 472 (7th Cir. 1999)

(“Once the amended complaint was filed . . . it became the

governing document in the case and any allegations . . . not

brought forward fell by the wayside.”).

II. COUNSEL

Plaintiff has no constitutional right to counsel, and the Court

cannot require an attorney to accept pro bono appointments in civil

cases. The most the Court can do is ask for volunteer counsel. See

Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992)

(holding that although indigent civil litigants have no constitutional

right to counsel, a district court may, in its discretion, request

counsel to represent indigent civil litigants in certain

circumstances). In considering Plaintiff’s motion for counsel, the

Court must ask 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?” Pruitt v. Mote, 503

F.3d 647, 654 (7th Cir. 2007).

Plaintiff’s motion demonstrates that he has satisfied his

threshold burden by attempting to find counsel independently.

“The second inquiry requires consideration of both the factual

and legal complexity of the plaintiff’s claims and the competence of

the plaintiff to litigate those claims himself.” Eagan v. Dempsey, 987

F.3d 667, 682 (7th Cir. 2021). “These two considerations ‘are

necessarily intertwined; the difficulty of the case is considered

against the plaintiff’s litigation capabilities, and those capabilities

are examined in light of the challenges specific to the case at

hand.’” (Id.) (quoting Pruitt, 503 F.3d at 655).

Specifically, courts should consider “whether the difficulty of

the case—factually and legally—exceeds the particular plaintiff’s

capacity as a layperson to coherently present it to the judge or jury

himself.” Eagan, 987 F.3d at 682. “This assessment of the plaintiff’s

apparent competence extends beyond the trial stage of

proceedings.” Id. The assessment “must include ‘the tasks that

normally attend litigation: evidence gathering, preparing[,] and

responding to motions and other court filings, and trial.’” Id.

“Although there are no fixed criteria for determining whether a

plaintiff is competent to litigate his … case, a district court certainly

should consider the plaintiff’s literacy, communication skills,

educational level, litigation experience, intellectual capacity, and

psychological history.” Id. at 682-83.

The Court concludes that the recruitment of counsel at this

early stage of the proceedings is not warranted. As explained below,

entry of the Court’s Merit Review Order begins the service phase.

After Defendants have been served and filed their answers to

Plaintiff’s complaint, which usually takes sixty days, the Court will

enter a scheduling order that provides guidance and deadlines to

assist Plaintiff during the discovery process. Therefore, the Court

denies Plaintiff’s motions for recruitment of counsel, with leave to

renew on a more developed record.

IT IS THEREFORE ORDERED:

1) Plaintiff’s Motions for an Extension of Time (Doc. 12) to file

his amended pleading and for Leave to File an Amended

Complaint (Doc. 11) are GRANTED. The Clerk of the Court

is DIRECTED to docket Plaintiff’s amended pleading.

2) Plaintiff’s Motion for Counsel (Doc. 5) is DENIED with leave

to renew.

3) The Court DIRECTS the Clerk of the Court to terminate

Britanny Greene, Latoya Hughes, and Rebecca Riggs as

parties.

4) According to the Court’s Merit Review screening of

Plaintiff’s Amended Complaint under 28 U.S.C. § 1915A,

Plaintiff has alleged enough facts to proceed with an Eighth

Amendment deliberate indifference to serious medical need

claims against Defendants Black, Burke, Dixon, and

Trusewych. Plaintiff also states a plausible Monell policy

claim against Wexford. Plaintiff’s claims against Black,

Burke, Dixon, and Trusewych proceed in their individual

capacities only. 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.

5) This case is now in the process of service. The Court

recommends that Plaintiff wait until counsel has appeared

for Defendants before filing any motions to give Defendants

notice and an opportunity to respond to those motions.

Motions filed before Defendants’ counsel has filed an

appearance will be denied as premature. Plaintiff need not

send evidence to the Court unless otherwise directed by the

Court.

6) The Court will attempt service on Defendants by mailing a

waiver of service. Defendant has sixty days from service to

file an Answer. If Defendants have not filed their respective

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 Defendants have

been served, the Court will enter an order setting discovery

and dispositive deadlines.

7) If a defendant no longer works at the address provided by

Plaintiff, the entity for whom Defendant worked while at

that address shall send to the Clerk Defendant’s current

work address or, if not known, Defendant’s forwarding

address. This information shall be used only for

effectuating service. Documentation of forwarding

addresses shall be kept only by the Clerk and shall not be

kept in the public docket nor disclosed by the Clerk.

8) Defendants shall file an Answer within sixty days of the

date the Clerk sends the waiver. A motion to dismiss is not

an answer. The Answer should include all defenses proper

under the Federal Rules. The Answer and later pleadings

shall be to the issues and claims stated in this Order. An

answer sets forth the Defendants’ positions. The Court does

not rule on the merits of those positions unless and until

Defendants file a motion. Therefore, no response to the

Answer is necessary or will be considered.

9) This District uses electronic filing, which means that after

Defendants’ counsel has filed an appearance, Defendants’

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 Defendants’ counsel. However, this does not apply to

discovery requests and responses. Discovery requests and

responses are not filed with the Court. Instead, Plaintiff

must mail his discovery requests and responses directly to

Defendants’ 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 Defendants’ counsel files an

appearance and the Court enters a scheduling order, which

will provide more detailed information about the discovery

process.

10) Defendants’ counsel is granted leave to depose Plaintiff at

his place of confinement. Defendants’ counsel shall arrange

the time for the deposition.

11) 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.

12) If a Defendant fails to sign and return a waiver of service to

the Clerk within thirty days after the waiver is sent, the

Court will take appropriate steps to effect formal service

through the U.S. Marshals Service on that Defendant and

will require Defendant to pay the total costs of formal

service under Federal Rule of Civil Procedure 4(d)(2).

13) The Court directs the Clerk to enter the standard qualified

protective order under the Health Insurance Portability and

Accountability Act.

14) The Court directs the Clerk to attempt service on

Defendants under the standard procedures.

ENTERED May 5, 2026.

s/ Sue E. Myerscough

_______________________________________

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE