Opinion
CASE NUMBER 13 C 4670
07-10-2013
Willie H. Davis (#A-15810) v. Wexford Health Sources, Inc., et al.
Name of Assigned Judge or Magistrate Judge
Sitting Judge if Other than Assigned Judge
DOCKET ENTRY TEXT:
Plaintiff's motion for leave to proceed in forma pauperis [3] is granted. The Court authorizes and orders the trust fund officer at Plaintiff's place of incarceration to deduct $3.56 from Plaintiff's account for payment to the Clerk of Court as an initial partial filing fee and to continue making monthly deductions in accordance with this order. The Clerk shall send a copy of this order to the trust fund officer at the Stateville Correctional Center. On the Court's own motion, Wexford Health Sources, Inc., is dismissed as a defendant on initial review pursuant to 28 U.S.C. § 1915A. The Court directs the Clerk to issue summons for service on Defendant Ghosh by the U.S. Marshal and to send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order. Plaintiff's motion for attorney representation [4] is denied without prejudice.
[X] [For further details see text below.]
Docketing to mail notices.
STATEMENT
Plaintiff, an Illinois state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants, health care providers at the Stateville Correctional Center, violated Plaintiff's constitutional rights by acting with deliberate indifference to his serious medical needs. More specifically, Plaintiff alleges that he was denied needed care and treatment for severe headaches and high blood pressure for over a year despite MRI results that should have alerted Plaintiff's treating physician as to the likely cause for his symptoms.
Plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is assessed an initial partial filing fee of $3.56. The trust fund officer at Plaintiff's place of incarceration is authorized and ordered to collect the partial filing fee from Plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, Plaintiff's trust fund officer is directed to collect monthly payments from Plaintiff's trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier's Desk, 20th Floor, and shall clearly identify Plaintiff's name and this case number. This payment obligation will follow Plaintiff wherever he may be transferred.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Here, accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendant Ghosh. Correctional officials and health care providers may not act with deliberate indifference to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Fields v. Smith, 653 F.3d 550, 554 (7th Cir. 2011). The fact that a prisoner received some medical treatment does not necessarily defeat his claim; deliberate indifference to a serious medical need can be manifested by "blatantly inappropriate" treatment, Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (emphasis in original), or by "woefully inadequate action" as well as by no action at all. Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 1999). It should be noted that neither medical malpractice nor a mere disagreement with a doctor's medical judgment amounts to deliberate indifference. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010); Estelle, 429 U.S. at 106; Greeno, 414 F.3d at 653. Nevertheless, Plaintiff's allegations of deliberate indifference state an arguable claim against Dr. Ghosh. While a more fully developed record may belie Plaintiff's allegations, Defendant Ghosh must respond to the complaint.
However, the Court dismisses Wexford Health Sources, Inc. as a Defendant on preliminary review. Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, "to be liable under § 1983, an individual defendant must have caused or participated in a constitutional deprivation." Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). A private corporation can be held liable under Section 1983 for its employees' constitutional violations only if an official corporate policy caused the violation. See, e.g., Woodward v. Correctional Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). In the case at bar, Plaintiff provides no basis for holding Wexford responsible for Ghosh's allegedly deficient medical care.
The Clerk shall issue summons forthwith for service on Defendant Ghosh only. The Court appoints the United States Marshals Service to serve Defendant Ghosh. Any service forms necessary for Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendant with process. The Court directs the U.S. Marshal to make all reasonable efforts to serve Defendant Ghosh. As Dr. Ghosh is no longer employed at Stateville, the Illinois Department of Corrections and/or Wexford Health Sources shall furnish the Marshal with Defendant's last-known address. The information shall be used only for purposes of effectuating service [or for proof of service, should a dispute arise] and any documentation of the address shall be retained only by the Marshal. Address information shall not be maintained in the court file, nor disclosed by the Marshal. The Marshal is authorized to mail a request for waiver of service to Defendant in the manner prescribed by Fed. R. Civ. P. 4(d)(2) before attempting personal service.
The Court instructs Plaintiff to file all future papers concerning this action with the Clerk of Court in care of the Prisoner Correspondent. Plaintiff must provide the Court with the original plus a complete judge's copy, including any exhibits, of every document filed. In addition, Plaintiff must send an exact copy of any court filing to Defendant [or to defense counsel, once an attorney has entered an appearance on Defendant's behalf]. Every document filed with the Court must include a certificate of service stating to whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded by the Court or returned to Plaintiff.
Finally, Plaintiff's motion for attorney representation is denied. There is no constitutional or statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
When a pro se litigant submits a request for assistance of counsel, the Court must first consider whether the indigent Plaintiff has made reasonable attempts to secure counsel on his own. Navejar v. Iyiola, No. 12-1182, --- F.3d ---, 2013 WL 2321349, at *3 (7th Cir. May 29, 2013) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc)). If so, the Court must examine "whether the difficulty of the case--factually and legally--exceeds the particular Plaintiff's capacity as a layperson to coherently present it." Navejar, 2013 WL 2321349, at *3 (quoting Pruitt, 503 F.3d at 655). "The question * * * is whether the plaintiff appears competent to litigate his own claims, given their degree of difficulty, and this includes the tasks that normally attend litigation: evidence gathering, preparing and responding to motions and other court filings, and trial." Pruitt, 503 F.3d at 655. The Court also considers such factors as the plaintiff's "literacy, communication skills, education level, and litigation experience." Id.
After considering the above factors, the Court concludes that the solicitation of counsel is not warranted in this case at this time. First, Plaintiff has failed to show either that he has made reasonable efforts to retain private counsel or that he has been effectively precluded from making such efforts. In any event, although the complaint sets forth cognizable claims, Plaintiff has alleged no physical or mental disability that might preclude him from adequately investigating the facts giving rise to his complaint. Plaintiff, whose initial submissions are coherent and articulate, appears more than capable of litigating this matter. It should additionally be noted that the Court grants pro se litigants wide latitude in the handling of their lawsuits. Therefore, Plaintiff's motion for attorney representation is denied at this time. Should the case proceed to a point that assistance of counsel is appropriate, the Court may revisit this request.