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3:13-cv-03157-SEM-BGC # 10 Page 1 of 6

E-FILED
Thursday, 11 July, 2013 09:52:53 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

















v.




DENNIS SCOTT,






Plaintiff,












TRAVIS SMITH and
SERGEANT KERR,



Defendants.




























































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) 13-CV-3157
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SUE E. MYERSCOUGH, U.S. District Judge:

OPINION

Plaintiff, proceeding pro se and detained in the Rushville

Treatment and Detention Center, seeks leave to proceed in forma

pauperis.

The “privilege to proceed without posting security for costs

and fees is reserved to the many truly impoverished litigants who,

within the District Court's sound discretion, would remain without

legal remedy if such privilege were not afforded to them.” Brewster

v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).

Additionally, a court must dismiss cases proceeding in forma

pauperis “at any time” if the action is frivolous, malicious, or fails to

state a claim, even if part of the filing fee has been paid. 28 U.S.C.

 

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§ 1915(d)(2). Accordingly, this Court grants leave to proceed in

forma pauperis only if the complaint states a federal claim. A

hearing was scheduled to assist in this review, but the hearing will

be cancelled as unnecessary.

In reviewing the Complaint, the Court accepts the factual

allegations as true, liberally construing them in Plaintiff's favor.

Turley v. Rednour, --- F.3d ---, 2013 WL 3336713 * 2 (7th Cir.

2103). However, conclusory statements are insufficient. Enough

facts must be provided to "'state a claim for relief that is plausible

on its face.'" Alexander v. U.S., 2013 WL 3215667 *2 (7th Cir.

2013)(quoted cite omitted).

Plaintiff alleges that Defendants intentionally and without

justification prevented Plaintiff from receiving Plaintiff's dialysis

treatment for five continuous days in March 2013. A plausible

claim for deliberate indifference to Plaintiff's serious medical needs

arises from this alleged fact alone. Accordingly, this case will be

sent for service.

IT IS ORDERED:

1. The hearing scheduled for July 15, 2013, is cancelled.

The clerk is directed to notify Rushville Treatment and Detention

Center of the cancellation.

 

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2. Plaintiff’s Motion’s for Leave to Proceed in Forma Pauperis

(d/e 2) is granted. Pursuant to its review of the Complaint, the

Court finds that Plaintiff states a federal constitutional claim that

Defendants were deliberate indifferent to Plaintiff's serious need for

kidney dialysis in March 2013. This case proceeds solely on the

claims identified in this paragraph. Any 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 pursuant to Federal Rule of

Civil Procedure 15.

3.

If a Defendant 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).

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

 

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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 the time prescribed

by Local Rule. 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.

6. Plaintiff shall serve upon any Defendant who has been

served but who is not represented by counsel a copy of every filing

submitted by Plaintiff for consideration by the Court and shall also

file a certificate of service stating the date on which the copy was

mailed. Any paper received by a District Judge or Magistrate Judge

that has not been filed with the Clerk or that fails to include a

required certificate of service shall be struck by the Court.

7. Once counsel has appeared for a Defendant, Plaintiff need

not send copies of his filings to that Defendant or to that

Defendant's counsel. Instead, the Clerk will file Plaintiff's document

electronically and send a notice of electronic filing to defense

counsel. The notice of electronic filing shall constitute service on

Defendants pursuant to Local Rule 5.3. If electronic service on

 

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Defendants is not available, Plaintiff will be notified and instructed

accordingly.

8.

This cause is set for further scheduling procedures under

Fed. R. Civ. P. 16 on September 30, 2013 at 9:30 a.m., or as soon

as the Court can reach the case, before U. S. District Judge Sue E.

Myerscough by telephone conference. The conference will be

cancelled if service has been accomplished and no pending issues

need discussion. Accordingly, no writ shall issue for Plaintiff’s

presence unless directed by the Court.

9.

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.

10. 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.

11. Plaintiff's motion for the appointment of counsel is denied

as premature (d/e 3). The Court cannot consider the merits of the

motion until Plaintiff shows that he has made reasonable efforts to

find counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th

 

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Cir. 2007). Typically, a plaintiff makes this showing by writing to

several different law firms and attaching the responses to the

motion for appointment of counsel.

12. Plaintiff's motion to reconsider the clerk's request for

reimbursement for copying costs before sending Plaintiff a copy of

the local rules is granted in part (d/e 9). Plaintiff asserts that he

does not have enough money to pay for a copy of the local rules.

The clerk will be directed to send Plaintiff a copy of Local Rule 16.3,

which explains pretrial procedures in cases like this one.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED

TO: 1) attempt service on Defendants pursuant to the standard

procedures; and 2) send Plaintiff a copy of Local Rule 16.3.

ENTERED: July 11, 2013

FOR THE COURT:



































s/Sue E. Myerscough

SUE E. MYERSCOUGH







UNITED STATES DISTRICT JUDGE

 

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