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Thursday, 11 July, 2013 09:52:53 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
TRAVIS SMITH and
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
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.
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
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.
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
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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