UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS

MARTIN ALLBRITTON, JR., ) ) Plaintiff, ) ) v. ) 19-CV-3109 ) NURSE LYNDSEY, et al., ) ) ) Defendants. )

MERIT REVIEW ORDER COLIN STIRLING BRUCE, U.S. DISTRICT JUDGE. Plaintiff proceeds pro se from his incarceration in Graham Correctional Center. His Complaint is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. This section requires the Court to identify cognizable claims stated by the Complaint or dismiss claims that are not cognizable.1 In reviewing the complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor and taking Plaintiff’s pro se status into account. Turley v. Rednour,

(7th Cir. 2013). However, conclusory statements and labels are insufficient.

1 A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.”

(g). Enough facts must be provided to "'state a claim for relief that is plausible on its face.'" Alexander v. U.S.,

(7th

Cir. 2013)(quoted cite omitted). Plaintiff alleges that, on November 21, 2018, he fell off the top bunk while sleeping, severely injuring his neck and back. He tried

to obtain emergency medical care but was instead required to walk in pain to sick call the next morning, where Defendant Nurse Lindsay repeatedly refused Plaintiff medical treatment or pain relief.

This pattern was repeated by Defendant Nurse Edwards, who allegedly denied Plaintiff medical care that evening, even though Plaintiff was bent over in pain. Plaintiff felt worse the next day but

was still required to walk to sick call, even though he felt he would faint. Plaintiff then saw Defendant Dr. Kayira, but Dr. Kayira did not provide Plaintiff any medical care. Plaintiff received x-rays a few

weeks later but was not told the results or provided treatment. Plaintiff alleges that he still suffers from back and neck injuries. These allegations state plausible Eighth Amendment claims against Defendants Nurse Lyndsey, Nurse Edwards, and Dr. Kayira

for deliberate indifference to Plaintiff’s serious medical need for treatment for the injuries and pain he suffered in the fall from his top bunk.

However, these allegations do not state a claim against Defendant Green (the counselor) or Defendant Foster (the Warden).2 As laypersons, they are generally entitled to rely on the medical

professionals’ determination of whether and what medical treatment Plaintiff should receive. Greeno v. Daley,

(7th Cir. 2005)(“‘If a prisoner is under the care of medical

experts... a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.’”)(quoted cite omitted).

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states Eighth Amendment claims against Defendants Nurse Lyndsey, Nurse Edwards, and Dr. Kayira for deliberate indifference to Plaintiff’s serious medical need for treatment for the injuries and pain he

suffered in the fall from his top bunk. This case proceeds solely on the claims identified in this paragraph. Any additional claims shall

2 The IDOC website lists Doug Simmons as the current Acting Warden. not be included in the case, except at the Court’s discretion on motion by a party for good cause shown or pursuant to Federal

Rule of Civil Procedure 15. 2) This case is now in the process of service. Plaintiff is advised to wait until counsel has appeared for Defendants before

filing any motions, in order to give 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 otherwise directed by the Court. 3) The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from the date the waiver is sent to file an Answer. If Defendants have not filed Answers or appeared through counsel within 90 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 motion deadlines. 4) With respect to a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that Defendant worked while at that address shall provide 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.

5) Defendants shall file an answer within 60 days of the date the waiver is sent by the Clerk. A motion to dismiss is not an answer. The answer should include all defenses appropriate under

the Federal Rules. The answer and subsequent pleadings shall be to the issues and claims stated in this Opinion. In general, an answer sets forth Defendants' positions. The Court does not rule

on the merits of those positions unless and until a motion is filed by Defendants. Therefore, no response to the answer is necessary or will be considered. 6) This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel will automatically receive electronic notice of any motion or other paper filed by Plaintiff with the Clerk. Plaintiff does not need to mail to

Defense counsel copies of motions and other papers that Plaintiff has filed with the Clerk. However, this does not apply to discovery requests and responses. Discovery requests and responses are not filed with the Clerk. 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 Defense counsel has filed an appearance and the Court has entered a scheduling order, which will explain the discovery process in more detail.

7) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place of confinement. Counsel for Defendants shall arrange the time for the deposition.

8) Plaintiff shall immediately notify the Court, in writing, of any change in his mailing address and telephone number. Plaintiff's failure to notify the Court of a change in mailing address

or phone number will result in dismissal of this lawsuit, with prejudice. 9) If a Defendants fails to sign and return a waiver of service to the clerk within 30 days after the waiver is sent, the Court will

take appropriate steps to effect formal service through the U.S. Marshal's service on that Defendant and will require that Defendant to pay the full costs of formal service pursuant to Federal Rule of Civil Procedure 4(d)(2).

10) Within 10 days of receiving from Defendants' counsel an authorization to release medical records, Plaintiff is directed to sign and return the authorization to Defendants' counsel.

11) Plaintiff’s motion for the Court to appoint counsel is denied (3), with leave to renew after Plaintiff demonstrates that he has made reasonable efforts to find counsel on his own. Pruitt v.

Mote,

(7th Cir. 2007). This typically requires writing to several lawyers and attaching the responses. If Plaintiff renews his motion, he should set forth how far he has gone in

school, any jobs he has held inside and outside of prison, any classes he has taken in prison, and any prior litigation experience he has. 12) Defendants Green and Foster are dismissed without

prejudice. 13) The clerk is directed to terminate Defendants Green and Foster.

14) The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures.

15) The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act.

ENTERED:

FOR THE COURT:

s/Colin Stirling Bruce COLIN STIRLING BRUCE UNITED STATES DISTRICT JUDGE