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`E-FILED
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` Wednesday, 25 February, 2009 10:21:44 AM
` Clerk, U.S. District Court, ILCD
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`URBANA DIVISION
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`Case No. 08-CV-2232
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`JEFFREY ORR, et al.,
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`Plaintiffs,
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`v.
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`WILLARD O. ELYEA, MICHAEL
`PRUISIS, and WEXFORD CORP.,
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`Defendants.
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`OPINION
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`On January 1, 2009, Plaintiffs filed both their Motion for Injunctive Relief and Motion to
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`Certify Class (#16), (#18). On January 16, 2009, Defendant Willard O. Elyea filed both his Motion
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`to Strike Motion for Injunctive Relief (#24) and his Motion to Strike Motion to Certify Class (#25).
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`On that same day Defendant Wexford Corporation filed Responses (#27), (#28) in support of both
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`of Defendant Elyea’s Motions to Strike. On February 2, 2009, Plaintiffs filed their Responses (#34),
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`(#35) in opposition to both of Defendants’ Motions to Strike. On January 14, 2009, Defendant Elyea
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`filed his Motion for Summary Judgment (#20). On January 20, 2009, Defendant Wexford filed a
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`Motion for Order to Join in Co-Defendant’s Motion for Summary Judgment (#29), which this court
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`granted via text order on February 19, 2009. On February 9, 2009, Plaintiffs filed their Response
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`to Defendants’ Motion for Summary Judgment and Motion for Extension of Time for Additional
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`Reply (#40) and on February 13, 2009, filed a Motion to Supplement Response to Motion for
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`Summary Judgment (#41). For the following reasons, Defendants’ Motions to Strike (#24), (#25)
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`are both GRANTED, and Plaintiff’s Motion for Injunctive Relief (#16) and Motion to Certify Class
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`(#18) are hereby stricken with leave given to re-file. Further, Plaintiff’s Motion for Extension of
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`Time for Additional Reply (#40) and Motion to Supplement Response to Motion for Summary
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`Judgment (#40) are both GRANTED.
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`ANALYSIS
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`Plaintiffs are all inmates or former inmates of the Illinois Department of Corrections who
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`claim their civil rights were violated in contravention of 42 U.S.C. § 1983 when Defendants were
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`deliberately indifferent to their serious medical condition. Plaintiffs claim Defendants did not
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`provide Plaintiffs needed medical treatment for Hepatitis C. A Complaint (#1) was filed on
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`September 29, 2008. Defendants Wexford and Elyea filed their Answers (#12), (#13) on December
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`18 and December 19, 2009, respectively.
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`A. Plaintiffs’ Motion for Injunctive Relief and Defendants’ Motion to Strike
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`On January 1, 2009, Plaintiffs filed their Motion for Injunctive Relief (#16), in which they
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`ask the court to order Defendants to strictly comply with the protocol established for treatment of
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`Hepatitis C by the National Digestive Disease Information Clearinghouse (NDDIC). Plaintiffs want
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`the court to order strict compliance with the proposed NDDIC treatment protocols so as to prevent
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`Defendants from liberally interpreting them. Plaintiffs also ask that the court, among other things,
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`order Defendant Pruisis to implement a policy within the Department of Corrections (DOC) to file
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`a lawsuit against Wexford and other medical providers who benefitted by failure to treat inmates.
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`The suit should seek disgorgement of the medical providers unjust enrichment and the court should
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`order whatever funds that are collected from the suit be placed in a fund and made available to those
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`inmates who were denied treatment based upon claims to be filed after the suit is completed.
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`Finally, Plaintiffs ask that the court appoint an independent physician who specializes in Hepatitis
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`C to act as a “prisoner’s advocate.” Plaintiffs also filed a Memorandum in Support of the Motion
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`for Injunctive Relief (#17) that essentially summarized its argument for injunctive relief and referred
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`to an earlier jury trial in the Central District of Illinois, Roe, et al. v. Sims, 2006-CV-3034, where
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`a jury found in favor of Hepatitis C-infected inmate plaintiffs. In neither the Motion (#16) nor the
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`Memorandum (#17) was any citation made to statutory authority or supporting case law.
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`Defendant Elyea filed his Motion to Strike Plaintiffs’ Motion for Injunctive Relief (#24) on
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`January 16, 2009. His motion was joined that same day by Defendant Wexford’s Response to
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`Plaintiffs’ Motion for Injunctive Relief (#27). In Elyea’s Motion (#24), Defendant argues that
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`Plaintiffs’ Motion for Injunctive Relief must be stricken because it fails to comply with local court
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`rules requiring every motion raising a question of law be accompanied by a memorandum of law
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`including a brief statement of the specific points of law and supporting authorities upon which the
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`moving party relies and identifying the rule under which the motion is filed.
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`The Court’s Ruling
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`With regard to preliminary injunctive relief in civil actions regarding prison conditions,
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`federal law states:
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`“In any civil action with respect to prison conditions, to the extent otherwise
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`authorized by law, the court may enter a temporary restraining order or an order for
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`preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn,
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`extend no further than necessary to correct the harm the court finds requires
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`preliminary relief, and be the least intrusive means necessary to correct that harm.”
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`18 U.S.C. § 3626(a)(2).
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`“‘To prevail on a motion for a preliminary injunction, the moving party must demonstrate
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`(1) a likelihood of success on the merits; (2) a lack of adequate remedy at law; and (3) an irreparable
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`harm will result if the injunction is not granted.’” Lambert v. Buss, 498 F.3d 446, 451 (7th Cir.
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`2007), quoting Foodcomm Intern. v. Barry, 328 F.3d 300, 303 (7th Cir. 2003). If the party seeking
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`the injunction meets all three requirements, the district court must then balance the relative harms
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`that could be caused to either party. Lambert, 498 F.3d at 451. Forms of equitable, interlocutory
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`relief such as preliminary injunctions are an exercise of a very far-reaching power which are not to
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`be indulged in except in a case clearly demanding it. Girl Scouts of Manitou Council, Inc. v. Girl
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`Scouts of U.S. of America, Inc., 549 F.3d 1079, 1085 (7th Cir. 2008).
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`Further, according to the Rules for the United States District Court, Central District of
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`Illinois:
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`“Every motion raising a question of law shall be accompanied by a
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`memorandum of law including a brief statement of the specific points or propositions
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`of law and supporting authorities upon which the moving party relies, and identifying
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`the rule under which the motion is filed.” C.D. Ill. R. 7.1(B)(1).
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`Here, Plaintiffs have not provided a Memorandum of Law that includes any citation to
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`supporting legal authority in their request for injunctive relief. Rather, their Memorandum (#17)
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`simply summarizes reasons for the injunction without citing to any supporting legal authority.
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`Further, Plaintiffs have not addressed how their request satisfies the three requirements for a
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`preliminary injunction as listed by the Seventh Circuit in cases such as Lambert. Therefore,
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`Defendants’ Motion to Strike Plaintiffs’ Motion for Injunctive Relief (#24) is hereby GRANTED.
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`Plaintiffs’ Motion for Injunctive Relief (#16) is stricken. Plaintiff may re-file a motion for
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`injunctive relief that complies with the local rules of this court and the requirements for injunctive
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`relief as expressed by the Seventh Circuit.
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`B. Plaintiffs’ Motion to Certify Class and Defendants’ Motion to Strike
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`On January 1, 2009, Plaintiffs filed a Motion for Class Determination Pursuant to Rule 23
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`(#18). In the Motion, Plaintiffs described what the class would look like and the differences that
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`existed in those who have been diagnosed with Hepatitis C. Plaintiffs described statutory
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`requirements for the certification of a class, but again, provided virtually no case law authority in
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`their motion or memorandum of law. Plaintiffs did cite to Rule 23 of the Federal Rules of Civil
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`Procedure. Plaintiffs’ Memorandum of Law (#19), filed the same day, did not cite to any case law
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`or legal authority.
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`Defendant Elyea filed a Motion to Strike Plaintiffs’ Motion for Class Determination Pursuant
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`to Rule 23 (#25) on January 16, 2009. Defendant Wexford filed its Response to Plaintiffs’ Motion
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`to Certify Class (#28) on the same day. Defendants argued that Plaintiffs cited to documentary
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`evidence in their motion that was never filed and served by the moving party, in violation of Central
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`District of Illinois local court rules. Further, Plaintiffs again cited to very little case law or legal
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`authority in support of their motion.
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`The Court’s Ruling
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`The local rules for the U.S. District Court for the Central District of Illinois state:
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`“If documentary evidence is to be offered in support of or against a motion,
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`and that documentary evidence is susceptible of convenient copying, copies thereof
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`shall be served and filed by the moving party with the motion, and by the adverse
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`party with the statement in opposition to the motion. If the documentary evidence
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`is not susceptible of convenient copying, the offering party shall furnish a concise
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`summary or statement of the contents of the documentary evidence and shall make
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`the original available to the adverse party for examination prior to the hearing on the
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`motion.” C.D. Ill. R. 7.1(B)(1).
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`Rule 23 of the Federal Rules of Civil Procedure 23 states:
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`“One or more members of a class may sue or be sued as representative parties
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`on behalf of all members only if:
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`(1) the class is so numerous that joinder of all members is impracticable;
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`(2) there are questions of law or fact common to the class;
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`(3) the claims or defenses of the representative parties are typical of the
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`claims or defenses of the class; and
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`(4) the representative parties will fairly and adequately protect the
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`interests of the class.”
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`Fed. R. Civ. P. 23(a).
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`Here, Plaintiffs have addressed all of the Rule 23(a) requirements through argument
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`made in their Motion. Although their argument is without any case law to support it, Plaintiffs
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`have cited to the proper Federal Rule of Civil Procedure and addressed all the requirements
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`listed in that Rule. While Plaintiffs could have relied more on case law to bolster their argument,
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`as Motions to Strike are generally disfavored, the court finds that the citation to Rule 23 is
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`enough for the Motion to Certify Class to survive the Motion to Strike.
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`However, Defendants are correct in pointing out that the Exhibits A and D referenced by
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`Plaintiffs in their Motion, a copy of the transcript of Dr. Elyea’s testimony relating to the policy
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`and procedure of the Department of Corrections with regard to Hepatitis C and a copy of the
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`2005 Bureau of Prisons Guidelines for prevention and treatment of Hepatitis C, respectively,
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`were not attached to the Motion (#18) filed on January 1, 2009. On February 2, 2009, more than
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`a month later, Plaintiffs did file a Response (#34), which included the transcript of Dr. Elyea’s
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`testimony. Plaintiffs stated “at the time the motion was filed, the trial transcript of Dr. Elyea’s
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`testimony was not available. It is now available and is attached hereto as EXHIBIT 1.”
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`Plaintiffs’ Response did not make any mention of the “Exhibit D”, which was the 2005 Bureau
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`of Prisons Guidelines for prevention and treatment of Hepatitis C. In Plaintiffs’ Motion for
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`Class Determination (#18), they make extensive reference to both Dr. Elyea’s testimony and the
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`Bureau of Prisons Guidelines. However, the Bureau of Prisons Guidelines have never been filed
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`anywhere in the record as an attachment as far as the court can tell. Plaintiffs should have filed
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`those documents with the original Motion (#18). Further, as noted, Plaintiffs make extensive use
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`of those documents in their Motion, but do not provide any citation to pages of the Guidelines or
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`Dr. Elyea’s transcripts. Although Motions to Strike are generally disfavored, the court feels it
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`has no choice but to strike Plaintiffs’ Motion for Class Determination (#18) on these grounds.
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`Plaintiffs are allowed 30 days in which to re-file their Motion for Class Determination, which
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`should include as attachments the documents they cite to in their Motion and the proper citations
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`to pages in those documents. Defendants’ Motion to Strike Plaintiffs’ Motion for Class
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`Determination Pursuant to Rule 23 (#25) is GRANTED.
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`C. Plaintiffs’ Motion for Extension of Time to File Supplement Response to Summary Judgment
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`Defendant Elyea filed a Motion for Summary Judgment (#20) on January 14, 2009.
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`Defendant Wexford joined in that Motion on February 19, 2009. In the Motion for Summary
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`Judgment, Defendants asked that summary judgment be granted in their favor against the 57
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`currently incarcerated inmate Plaintiffs because those Plaintiffs had not exhausted their
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`administrative remedies through the Department of Corrections grievance process before filing
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`their 42 U.S.C. § 1983 civil rights claim, as required by 42 U.S.C. § 1997e(a). On February 9,
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`2009, Plaintiffs filed a Response to the Motion for Summary Judgment and Motion of Extension
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`of Time for Additional Reply (#40). Attached to the Response was an affidavit signed by
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`Plaintiffs’ attorney stating that within the time allowed by the court to respond to the Motion for
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`Summary Judgment, Plaintiffs’ attorney could not summarize the grievances filed by his clients,
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`prepare appropriate affidavits, submit them to the Plaintiffs who are incarcerated, and receive
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`affidavits back for filing. Plaintiffs’ attorney asked, pursuant to Federal Rule of Civil Procedure
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`56(f)(2), that he be allowed 8 weeks to submit affidavits of the individual Plaintiffs,
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`summarizing their grievances so that Plaintiffs may make a factual dispute of the issue of
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`exhaustion of remedies. On February 13, 2009, Plaintiffs filed a “Motion to Supplement
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`Response to the Motion for Summary Judgment” (#41) which included, as “Exhibit A”, the trial
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`transcript of Dr. Elyea from the earlier case.
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`The Court’s Ruling
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`The court hereby GRANTS Plaintiffs’ Motion for Extension of Time for Additional
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`Reply (#40) Plaintiffs are given 8 weeks, until April 15, 2009, in which to file its additional
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`reply. Also, Plaintiffs Motion to Supplement Response to the Motion for Summary Judgment
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`(#41) is GRANTED.
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`IT IS THEREFORE ORDERED:
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`(1) Defendants’ Motion to Strike Plaintiffs’ Motion for Injunctive Relief (#24) is
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`GRANTED. Plaintiffs’ Motion for Injunctive Relief (#16) is hereby STRICKEN, and Plaintiffs
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`are allowed 30 days, until March 26, 2009, to re-file their Motion for Injunctive Relief.
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`(2) Defendants’ Motion to Strike Plaintiffs’ Motion for Class Determination Pursuant to
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`Rule 23 (#25) is GRANTED. Plaintiffs’ Motion for Class Determination Pursuant to Rule 23
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`(#18) is hereby STRICKEN, and Plaintiffs are allowed 30 days, until March 26, 2009, to re-file
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`their Motion for Class Determination Pursuant to Rule 23.
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`(3) Plaintiffs’ Motion for Extension of Time for Additional Reply (#40) is GRANTED
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`and Plaintiffs are given until April 15, 2009, to file their Additional Reply.
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`(4) Plaintiffs’ Motion to Supplement Response to the Motion for Summary Judgment
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`(#41) is GRANTED.
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`ENTERED this 25th day of February, 2009
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`s/ Michael P. McCuskey
`MICHAEL P. McCUSKEY
`CHIEF U.S. DISTRICT JUDGE
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