IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEREK CUNNINGHAM, ) ) Plaintiff, ) ) vs. ) Case No. 21-cv-247-NJR ) ) DEBBIE ISSACS and R. McBRIDE, ) ) Defendants. )
MEMORANDUM AND ORDER ROSENSTENGEL, Chief Judge: Plaintiff Derek Cunningham, an inmate of the Illinois Department of Corrections (“IDOC”) who is currently incarcerated at Big Muddy River Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In his Complaint (Doc. 1), Cunningham alleges Defendants were deliberately indifferent to his dental needs in violation of the Eighth Amendment. This case is now before the Court for preliminary review of the Complaint 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). 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). The Complaint
Cunningham makes the following allegations in the Complaint (Doc. 1): On September 9, 2020, Cunningham wrote an emergency grievance about his bad teeth (Id. at p. 11). Issacs reviewed the grievance and looked at his medical records—as opposed to his dental records— which would have shown that he had teeth that needed to be removed. After writing his grievance, he received pain medication from McBride but it did not help his pain (Id. at pp. 11 and 13). He had over fifteen teeth removed since July 2, 2019, and McBride knew the pain he was in, but only provided him with pain medication that would last for seven days (Id. at pp. 13-14). Neither McBride not Issacs would send him out for dental care (Id. at p. 14). Issacs and McBride also denied Cunningham’s request for a dental soft diet (Id. at p. 12). The food served at the prison was too hard for Cunningham and would cut his mouth. Discussion
Based on the allegations in the Complaint, the Court finds it convenient to designate a single count in this pro se action: Count 1: Eighth Amendment deliberate indifference claim against Debbie Issacs and R. McBride for improperly treating his teeth and failing to provide him with a special diet for his teeth.
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 other claim that is mentioned in the Complaint but not addressed in this Order should be considered dismissed without prejudice as inadequately pled under the Twombly pleading standard.1
1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”). At this stage, the Court finds that Cunningham states a viable deliberate indifference claim against Issacs and McBride in Count 1 for their alleged failure to provide him with proper care, pain medication, and diet to address his bad teeth. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (delay in treatment). But to the extent that Cunningham alleges that Issacs improperly
responded to his grievance, he fails to state a claim. The simple denial or mishandling of a grievance does not amount to a constitutional violation. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner’s] grievance by persons who otherwise did not cause or participate in the underlying conduct states no claim.”); George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007). Thus, that claim is DISMISSED without prejudice. Pending Motions As to Cunningham’s motion for counsel (Doc. 3), he states that he has written three attorneys. Given the early stage of the litigation, however, it is difficult to accurately evaluate the need for the assistance of counsel. See Kadamovas v. Stevens, 706 F.3d 843, 845 (7th Cir. 2013)
(“[U]ntil the defendants respond to the complaint, the plaintiff’s need for assistance of counsel ... cannot be gauged.”).2 Further, counsel is not needed at this time because the defendants have not yet been served and a discovery schedule has not been entered. Thus, Cunningham’s motion for counsel (Doc. 3) is DENIED without prejudice. He may renew his request for the recruitment of counsel at a later date.
2 In evaluating the motion for counsel, the Court applies the factors discussed in Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007), and related authority. Disposition For the reasons stated above, Count 1 shall proceed against Debbie Issacs and R. McBride. The Clerk of Court shall prepare for Defendants Debbie Issacs and R. McBride: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the Complaint, and this
Memorandum and Order to the defendants’ place of employment as identified by Cunningham. 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 that defendant, and the Court will require that defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure. If a defendant can no longer be found at the work address provided by Cunningham, the employer shall furnish the Clerk with the defendant’s current work address, or, if not known, 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. Section 1997e(g). Pursuant to Administrative Order No. 244, Defendants need only respond to the issues stated in this Merit Review Order. If judgment is rendered against Cunningham, and the judgment includes the payment of costs under Section 1915, Cunningham will be required to pay the full amount of the costs, regardless of whether his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEREK CUNNINGHAM, ) ) Plaintiff, ) ) vs. ) Case No. 21-cv-247-NJR ) ) DEBBIE ISSACS and R. McBRIDE, ) ) Defendants. )
MEMORANDUM AND ORDER ROSENSTENGEL, Chief Judge: Plaintiff Derek Cunningham, an inmate of the Illinois Department of Corrections (“IDOC”) who is currently incarcerated at Big Muddy River Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In his Complaint (Doc. 1), Cunningham alleges Defendants were deliberately indifferent to his dental needs in violation of the Eighth Amendment. This case is now before the Court for preliminary review of the Complaint 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). 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). The Complaint
Cunningham makes the following allegations in the Complaint (Doc. 1): On September 9, 2020, Cunningham wrote an emergency grievance about his bad teeth (Id. at p. 11). Issacs reviewed the grievance and looked at his medical records—as opposed to his dental records— which would have shown that he had teeth that needed to be removed. After writing his grievance, he received pain medication from McBride but it did not help his pain (Id. at pp. 11 and 13). He had over fifteen teeth removed since July 2, 2019, and McBride knew the pain he was in, but only provided him with pain medication that would last for seven days (Id. at pp. 13-14). Neither McBride not Issacs would send him out for dental care (Id. at p. 14). Issacs and McBride also denied Cunningham’s request for a dental soft diet (Id. at p. 12). The food served at the prison was too hard for Cunningham and would cut his mouth. Discussion
Based on the allegations in the Complaint, the Court finds it convenient to designate a single count in this pro se action: Count 1: Eighth Amendment deliberate indifference claim against Debbie Issacs and R. McBride for improperly treating his teeth and failing to provide him with a special diet for his teeth.
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 other claim that is mentioned in the Complaint but not addressed in this Order should be considered dismissed without prejudice as inadequately pled under the Twombly pleading standard.1
1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”). At this stage, the Court finds that Cunningham states a viable deliberate indifference claim against Issacs and McBride in Count 1 for their alleged failure to provide him with proper care, pain medication, and diet to address his bad teeth. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (delay in treatment). But to the extent that Cunningham alleges that Issacs improperly
responded to his grievance, he fails to state a claim. The simple denial or mishandling of a grievance does not amount to a constitutional violation. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner’s] grievance by persons who otherwise did not cause or participate in the underlying conduct states no claim.”); George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007). Thus, that claim is DISMISSED without prejudice. Pending Motions As to Cunningham’s motion for counsel (Doc. 3), he states that he has written three attorneys. Given the early stage of the litigation, however, it is difficult to accurately evaluate the need for the assistance of counsel. See Kadamovas v. Stevens, 706 F.3d 843, 845 (7th Cir. 2013)
(“[U]ntil the defendants respond to the complaint, the plaintiff’s need for assistance of counsel ... cannot be gauged.”).2 Further, counsel is not needed at this time because the defendants have not yet been served and a discovery schedule has not been entered. Thus, Cunningham’s motion for counsel (Doc. 3) is DENIED without prejudice. He may renew his request for the recruitment of counsel at a later date.
2 In evaluating the motion for counsel, the Court applies the factors discussed in Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007), and related authority. Disposition For the reasons stated above, Count 1 shall proceed against Debbie Issacs and R. McBride. The Clerk of Court shall prepare for Defendants Debbie Issacs and R. McBride: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the Complaint, and this
Memorandum and Order to the defendants’ place of employment as identified by Cunningham. 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 that defendant, and the Court will require that defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure. If a defendant can no longer be found at the work address provided by Cunningham, the employer shall furnish the Clerk with the defendant’s current work address, or, if not known, 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. Section 1997e(g). Pursuant to Administrative Order No. 244, Defendants need only respond to the issues stated in this Merit Review Order. If judgment is rendered against Cunningham, and the judgment includes the payment of costs under Section 1915, Cunningham will be required to pay the full amount of the costs, regardless of whether his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A). Finally, Cunningham is ADVISED that he is under a continuing obligation to keep the Clerk of Court and each opposing party informed of any change in his address; the Court will not independently investigate his whereabouts. This shall be done in writing and not later than 7 days after a transfer or other change in address occurs. Failure to comply with this order will cause a delay in the transmission of court documents and may result in dismissal of this action for want of prosecution. See Fed. R. Civ. P. 41(b). IT IS SO ORDERED. DATED: 5/18/2021 7 g i
NANCY J. ROSENSTENGEL Chief U.S. 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 your Complaint. It will likely take at least 60 days from the date of this Order to receive the defendants’ Answer, but it is entirely possible that it will take 90 days or more. When all 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 this time, unless specifically directed to do so.