Cerritos v. Robeen

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION RODOLFO CERRITOS, ) Plaintiff, ) ) v. ) Case No. 23-cv-03027 ) CHRIS ROBEEN et al., ) Defendants. ) ORDER COLLEEN R. LAWLESS, United States District Judge: Before the Court for screening is a Complaint (Doc. 1) filed under 42 U.S.C § 1983 by Plaintiff Rodolfo Cerritos, who is currently incarcerated at Southwestern Correctional Center. Plaintiff has also filed a Motion for Counsel (Doc. 5). I. Complaint A. Screening Standard The Court must “screen” Plaintiff’s complaint and dismiss any legally insufficient claim or the entire action if warranted. 28 U.S.C. § 1915A. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. In reviewing the complaint, the court accepts the factual allegations as accurate, liberally construing them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to “state a claim for relief that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013) (citation omitted). B. Factual Allegations Plaintiff’s pleading concerns alleged constitutional violations during his imprisonment at Jacksonville Correctional Center. Plaintiff identifies the following Defendants: Warden Cherryle Hinthorne and Healthcare Administrator Chris Robeen. In January 2022, Plaintiff began experiencing tooth pain due to a defective filling. Plaintiff sought dental care on eleven occasions to no avail because Jacksonville did not have a dentist. From March to June 2022, Plaintiff submitted monthly emergency grievances that Defendants addressed. Over two days in June 2022, Plaintiff ingested thirty 600 milligrams (“mg”) Motrin pills for tooth pain, prompting further diagnostic testing due to the increased medication. In July 2022, Plaintiff took 1000 mg of Tylenol thrice daily for his pain, which was ineffective. On July 7, 2022, a Dentist extracted Plaintiff’s tooth as the damage could not be repaired. Plaintiff claims that, as a result, he suffers from a “dental disfigurement.” (Doc. 1 at 6.) C. Analysis The Seventh Circuit has clarified that severe tooth decay or abscesses can cause acute medical needs requiring prompt treatment. Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940 (7th Cir. 2015); see also Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (“Tooth decay can constitute an objectively serious medical condition because of pain and the risk of infection.”); Board v. Farnham, 394 F.3d 469, 480 (7th Cir. 2005) (“At the outset, we reiterate our view that dental care is one of the most important medical needs of inmates.” (internal quotation marks omitted)). Plaintiff asserts that Defendants Hinthorne and Robeen were aware of his severe dental needs through the many grievances he submitted that Defendants processed, which the Court concludes is sufficient to state a deliberate indifference claim for lack of timely dental care. See Perez v. Fenoglio, 792 F.3d 768 , 781–82 (7th Cir. 2015) (“An inmate’s correspondence to a prison administrator may . . . establish a basis for personal liability under § 1983 where that correspondence provides sufficient knowledge of a constitutional deprivation.”). Thus, the Court concludes that Plaintiff’s account, taken as accurate, is enough to state a deliberate indifference claim against Defendants Hinthorne and Robeen for lack of timely dental care. The Court notes that Plaintiff also seeks to proceed on a claim that Defendant Robeen violated his rights under the Health Insurance Portability and Accountability Act (“HIPPA”). However, HIPPA does not confer a private right of action or rights enforceable in a § 1983 action. Stewart v. Parkview Hosp., 940 F.3d 1013, 1015 (7th Cir. 2019); see also Acara v. Banks, 470 F.3d 569 , 570–72 (5th Cir. 2006); Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010); Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010); Wilkerson v. Shinseki, 606 F.3d 1256 , 1267 n.4 (10th Cir. 2010). Thus, Plaintiff’s HIPPA allegation fails to state a plausible claim for relief. II. Recruitment of Counsel Plaintiff has no constitutional right to counsel, and the Court cannot require an attorney to accept pro bono appointments in civil cases. The most the Court can do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992) (holding that although indigent civil litigants have no constitutional right to counsel, a district court may, in its discretion, request counsel to represent indigent civil litigants in certain circumstances). In considering Plaintiff’s motion for counsel, the Court must ask two questions: “(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). The Court denies Plaintiff’s Motion for Recruitment of Counsel because he has not demonstrated that he attempted to find counsel by attaching the responses he has received to his solicitations. Furthermore, the Court concludes that recruiting counsel at this early stage of the proceedings is not warranted. As explained below, entry of the Court’s Merit Review Order begins the service phase. After Defendants have been served and have filed their answers to Plaintiff’s complaint, which usually takes sixty days, the Court will enter a scheduling order that provides guidance and deadlines to assist Plaintiff during the discovery process. Therefore, the Court denies Plaintiff’s Motion for Recruitment of Counsel, with leave to renew on a more developed record. IT IS THEREFORE ORDERED: 1) Plaintiff’s Motion for Counsel (Doc. 5) is DENIED for the reasons stated in the Court’s Merit Review Order. 2) According to the Court’s screening of Plaintiff’s Complaint [1] under 28 U.S.C. § 1915A, Plaintiff has alleged enough facts to proceed with an Eighth Amendment deliberate indifference claim against Defendants Hinthorne and Robeen. Plaintiff’s claim against Defendants proceeds in their individual capacity only. 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 under Federal Rule of Civil Procedure 15. 3) This case is now in the process of service. The Court advises Plaintiff to wait until counsel has appeared for Defendants before filing any motions to give Defendants notice and an opportunity to respond to those motions. Motions filed before Defendants’ counsel has filed an appearance will be denied as premature. Plaintiff need not submit evidence to the Court unless otherwise directed by the Court. 4) The Court will attempt service on Defendants by mailing each Defendant a waiver of service. Defendants have sixty days from service to file an Answer. If Defendants have not filed Answers or appeared through counsel within ninety 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. 5) Concerning a Defendant who no longer works at the address provided by Plaintiff, the entity for whom that Defendant worked while at that address shall submit to the Clerk of the Court (“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. 6) Defendants shall file an Answer within sixty days of the date the Clerk sends the waiver. 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 Order. In general, an answer sets forth Defendants’ positions. The Court does not rule on the merits of those positions unless and until Defendants file a motion. Therefore, no response to the Answer is necessary or will be considered. 7) This District uses electronic filing, which means that after Defendants’ counsel has filed an appearance, Defendants’ counsel will automatically receive electronic notice of any motion or other paper filed by Plaintiff with the Clerk. Therefore, Plaintiff does not need to mail copies of motions and other documents that Plaintiff has filed with the Clerk to Defendants’ counsel. However, this does not apply to discovery requests and responses. Discovery requests and responses are not filed with the Clerk. Instead, 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 Defendants’ counsel has filed an appearance, and the Court has entered a scheduling order, which will explain the discovery process in more detail. 8) Defendants’ counsel is granted leave to depose Plaintiff at his place of confinement. Defendants’ counsel shall arrange the time for the deposition. 9) Plaintiff shall immediately notify the Court, in writing, of any change in his mailing address and telephone number. Plaintiff’s failure to inform the Court of a change in mailing address or phone number will result in the dismissal of this lawsuit with prejudice. 10) If a Defendant fails to sign and return a waiver of service to the Clerk within thirty days after the waiver is sent, the Court will take appropriate steps to effect formal service through the U.S. Marshals service on that Defendant and will require that Defendant to pay the total costs of formal service under Federal Rule of Civil Procedure 4(d)(2). 11) The Court directs the Clerk to enter the standard qualified protective order under the Health Insurance Portability and Accountability Act. 12) The Court directs the Clerk to attempt service on Defendants under the standard procedures. ENTERED June 14, 2023. s/ Colleen R. Lawless ____________________________________ COLLEEN R. LAWLESS UNITED STATES DISTRICT JUDGE