BARKER v. TALBOT et al
| CHARLES BARKER |
| WEXFORD HEALTH OF INDIANA, LLC, M. LAFLOWER, P. TALBOT, L. BERGESON, MICHELLE LAFLOWER, LISA BERGESON and PAUL TALBOT |
| Matthew Frederick Richter |
| 1:2019cv01280 |
| March 29, 2019 |
| US District Court for the Southern District of Indiana |
| Tim A Baker |
| Tanya Walton Pratt |
| Prisoner Petitions - Prison Condition |
| 42 U.S.C. § 1983 |
| Both |
Docket Report
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| Filing 63 ANSWER to #61 Amended Complaint , Jury Demand and Affirmative Defenses, filed by LISA BERGESON, MICHELLE LAFLOWER, PAUL TALBOT, WEXFORD HEALTH OF INDIANA, LLC.(Bitner, Douglass) |
| Filing 62 Mail Returned as undeliverable (Return to Sender; Refused). #2 Complaint, #37 Order, #38 NOTICE of Lawsuit & Waiver Issued by Clerk sent to MICHELLE LAFLOWER at Pendleton Correctional Facility 4490 W. Reformatory Road, Pendleton, IN 46064. (NAD) |
| Filing 61 FIRST AMENDED COMPLAINT against LISA BERGESON, MICHELLE LAFLOWER, PAUL TALBOT, WEXFORD HEALTH OF INDIANA, LLC, filed by CHARLES BARKER.(NAD) |
Filing 60
Order on Pending Motions - Plaintiff Charles Barker's motion for leave to amend the complaint, dkt. #47 , is granted. The clerk is directed to file the tendered amended complaint, dkt. 47-1, as the plaintiff's first amended complaint. It will be the operative complaint. The Court has screened the amended complaint pursuant to 28 U.S.C. 1915A. The claims presented shall proceed as consistent with the original screening order of April 3, 2019. Dkt. #9 . Mr. Barker's motion for power of attorney to appear for him, dkt. #48 , is denied. Only licensed attorneys, or a pro se party, may appear for a party. Additionally, the Court has recruited counsel to assist Mr. Barker, and that counsel will appear for Mr. Barker. The motion for a preliminary injunction, dkt. #4 , is denied without prejudice. Mr. Barker seeks specific medical care and contends he is almost certain to prevail. However, the defendants have raised the issue of a lack of exhaustion of administrative remedies. Proceedings in this case not related to the issue of exhaustion have been stayed. Mr. Barker can only prevail in this action if he has exhausted his administrative remedies or the defendants waive the defense. Mr. Barker is now represented by recruited counsel. The Court will communicate with the parties through counsel, and Mr. Barker should discontinue pro se filings while represented. ( See Order.) Copy to Plaintiff via US Mail. Signed by Judge Tanya Walton Pratt on 6/20/2019. (NAD)
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| Filing 59 Supplemental to Final Supplemental REPLY in Support of Motion re #4 MOTION for Preliminary Injunction, for Plaintiff CHARLES BARKER. (Attachments: #1 Envelope)(NAD) |
| Filing 58 Plaintiff's Power of Attorney NOTICE of Appearance for CHARLES BARKER (Attachments: #1 Cover Letter, #2 Envelope) (NAD) |
| Filing 57 NOTICE of Appearance by Douglass R. Bitner on behalf of Defendant LISA BERGESON. (Bitner, Douglass) |
| Filing 56 WAIVER OF SERVICE Returned Executed, filed by LISA BERGESON. LISA BERGESON waiver sent on 5/7/2019. (Bitner, Douglass) |
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Filing 55
Order Directing Development of Exhaustion Defenseand Issuing Partial Stay - Defendants' exhaustion defense will be resolved pursuant to the following schedule. The defendants shall have through July 15, 2019, in which to either: file a dispositive motion in support of the exhaustion defense; file a notice with the Court specifically identifying the fact issue(s) that preclude resolution of this affirmative defense via a dispositive motion and requesting a Pavey hearing; or file a notice with the Court withdrawing the exhaustion defense. The failure to pursue any of these options by the above deadline constitutes an abandonment of the exhaustion defense. (See Order.) Copy to Plaintiff via US Mail. Signed by Judge Tanya Walton Pratt on 6/5/2019.(NAD)
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Filing 54
Order - Concerning Service on Defendant Bergeson - Counsel for defendants Talbot, LaFlower, and Wexford Health of Indiana is directed to advise the Court whether he represents defendant Lisa Bergeson. The May 31, 2019, answer to the complaint reflects that it is for all four defendants and it is signed by counsel Douglass R. Bitner. If counsel represents Bergeson, a waiver of service of summons or counsel's entry of appearance should be filed as soon as possible. If counsel does not represent Bergeson, counsel is directed to inform the Court of Bergeson's address for service of process, or if she is no longer employed by Wexford, her last known address. The latter address may be submitted ex parte. Copy to Plaintiff via US Mail. Signed by Judge Tanya Walton Pratt on 6/5/2019.(NAD) Modified on 6/5/2019 - Edited title (NAD).
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Filing 53
ORDER OF RECRUITMENT OF COUNSEL PURSUANT TO LOCAL RULE 87 - The Court hereby appoints Matthew Frederick Richter to represent Plaintiff Charles Barker in the above action pursuant to Local Rule 87. This representation shall continue until final judgment is entered unless otherwise modified by written order. This Entry serves as recruited counsel's appearance under Local Rule 83-7 (a) on behalf of the plaintiff effective seven days from the date this order is docketed, unless relief from the appointment is granted. Signed by Judge Tanya Walton Pratt on 6/5/2019.(NAD)
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| Filing 52 Non-Party Notice of Plaintiff's Change of Address by R. Peacher for Charles Barker. (NAD) |
| Filing 51 ANSWER to #2 Complaint , filed by MICHELLE LAFLOWER, PAUL TALBOT, WEXFORD HEALTH OF INDIANA, LLC.(Bitner, Douglass) |
| Filing 50 NOTICE of Appearance by Douglass R. Bitner on behalf of Defendant MICHELLE LAFLOWER. (Bitner, Douglass) |
| Filing 49 WAIVER OF SERVICE Returned Executed, filed by MICHELLE LAFLOWER. MICHELLE LAFLOWER waiver sent on 5/7/2019. (Bitner, Douglass) |
| Filing 48 MOTION for Power of Attorney to Appear for Him, filed by Plaintiff CHARLES BARKER. (NAD) |
| Filing 47 MOTION to Amend #2 Complaint, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Proposed Amended Complaint)(NAD) |
| Filing 46 RESPONSE, re #44 Notice of Compliance (Other), filed by Plaintiff CHARLES BARKER. (NAD) |
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Filing 45
ORDER - GRANTING #41 MOTION TO DIGITALLY SIGN MOTIONS - Plaintiff Charles Barker's motion to digitally sign motions, dkt. #41 , is granted to the extent he may sign his motions with the electronic signature of "s/Charles Barker." Signed by Judge Tanya Walton Pratt on 5/13/2019. (NAD)
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| Filing 44 NOTICE of Compliance, filed by Defendants PAUL TALBOT, WEXFORD HEALTH OF INDIANA, LLC, re #40 Entry. (Attachments: #1 Exhibit Medical Records, redacted) (Bitner, Douglass) |
| Filing 43 Final Supplemental REPLY in Support of Motion re #4 MOTION for Preliminary Injunction, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Exhibit 1 - Declaration of Charles Barker, #2 Exhibit 2 - Durable General Power of Attorney)(NAD) |
| Filing 42 Third Supplemental REPLY in Support of Motion re #4 MOTION for Preliminary Injunction, filed by Plaintiff CHARLES BARKER. (NAD) |
| Filing 41 MOTION to Digitally Sign Motions, filed by Plaintiff CHARLES BARKER. (NAD) |
| Filing 40 ENTRY DOCUMENTING SECOND NON-PARTY COMMUNICATION AND DIRECTING FURTHER PROCEEDINGS - On May 9, 2019, the Court again received email correspondence from Ms. Best, who states that Mr. Barker has not received any pain medication even though they were informed he would get morphine. The clerk is directed to docket the email correspondence as an attachment to this Entry. The defendants are directed to investigate the allegations in the email correspondence from Ms. Best and to file an update with the Court by close of business on May 10, 2019. Specifically, the defendants should provide specificity in the update including the identities of any staff members and/or physicians that were consulted; what was discussed and disclosed in those conversations; and any medical reports to show what medication Mr. Barker has received for, at least, the past three weeks and when those medications were provided to Mr. Barker. (Attachments: #1 SECOND NON-PARTY COMMUNICATION RELATING TO MR. BARKER'S CANCER)(NAD) |
| Filing 39 NOTICE of Compliance, filed by Defendants PAUL TALBOT, WEXFORD HEALTH OF INDIANA, LLC, re #36 Entry. (Bitner, Douglass) |
| Filing 38 Second NOTICE of Lawsuit & Waiver Issued by Clerk to: (1) HSA Michelle LaFlower; and (2) Lisa Bergeson. (NAD) |
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Filing 37
Order Again Directing Issuance of Process - Notice of Lawsuit and Request to Waive Service of a Summons forms sent to defendants Michelle Laflower and Lisa Bergeson have not been returned. The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to Michelle Laflower and Lisa Bergeson in the manner specified by Rule 4(d). Process shall consist of the complaint (dkt. #2 ), the screening entry of April 3, 2019 (dkt. #9 ), applicable forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons), and this Order. Signed by Judge Tanya Walton Pratt on 5/7/2019.(NAD) Modified on 5/7/2019 - Defendants' Laflower and Bergeson to distribution list(NAD). (Main Document 37 replaced on 5/7/2019) (NAD).
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| Filing 36 ENTRY - DOCUMENTING NON-PARTY COMMUNICATION AND DIRECTING FURTHER PROCEEDINGS. On May 4, 2019, the Court received email correspondence from Deanna Best, plaintiff Charles Barker's ex-wife, regarding Mr. Barker's B Cell Lymphoma cancer diagnosis and the alleged refusal of medical staff at Pendleton Correctional Facility to provide Mr. Barker with his prescribed pain medication and treatment for the cancer. The clerk is directed to docket the email correspondence as an attachment to this Entry. The defendants are directed to investigate the allegations in the email correspondence from Ms. Best and to file an update with the Court by close of business on May 8, 2019. Signed by Judge Tanya Walton Pratt on 5/6/2019. (Attachments: #1 Non-Party Communication Relating to Mr. Barker's Cancer)(NAD) |
| Filing 35 Supplemental RESPONSE in Opposition re #4 MOTION for Preliminary Injunction (Supplemental, per [DN 34]), filed by Defendants LISA BERGESON, MICHELLE LAFLOWER, PAUL TALBOT, WEXFORD HEALTH OF INDIANA, LLC. (Bitner, Douglass) Modified on 5/7/2019 - Added "Supplemental" to match caption of document(NAD). |
| Filing 34 ENTRY - DIRECTING FURTHER BRIEFING ON MOTION FOR PRELIMINARY INJUNCTION. Because the status of Mr. Barker's medical treatment cancer, masses, and pain is unclear, the defendants are directed to file a supplemental response to the motion for preliminary injunction within three days of the issuance of this Entry. Specifically, the defendants' response should address whether Mr. Barker is getting the oxycodone and chemotherapy prescribed by Dr. Sharief at St. Vincent Hospital. (See Entry.) Signed by Judge Tanya Walton Pratt on 5/2/2019.(NAD) |
| Filing 33 UNREDACTED DOCUMENT (Exhibit A - attached at 32-1) regarding #32 Reply in Support of Motion. (NAD) |
| Filing 32 Second Supplemental REPLY in Support of Motion re #4 MOTION for Preliminary Injunction, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Exhibit St. Vincent prescription)(NAD) Modified on 5/1/2019 - Added Second Supplemental to title to match caption of document(NAD). |
| Filing 31 Submission of Exhibits re Dkt. #29 , filed by Plaintiff CHARLES BARKER. (Attachments: #1 Envelope)(NAD) |
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Filing 30
ORDER - granting #26 Emergency Motion to Appoint Counsel. The plaintiff's motion to appoint counsel, dkt. #33 , is granted to the extent that the Court will attempt to locate counsel to represent plaintiff in this action. If counsel is appointed for Mr. Barker, a conference will be held to direct the further development of the action. Signed by Judge Tanya Walton Pratt on 4/25/2019. (NAD)
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| Filing 29 Supplemental REPLY in Support of Motion re #4 MOTION for Preliminary Injunction, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Exhibit 1 - Picture, #2 Exhibit 2 - Picture, #3 Exhibit 3 - Picture)(NAD) |
| Filing 28 NOTICE of Threat by Defendant, filed by Plaintiff CHARLES BARKER (NAD) |
| Filing 27 REPLY in Support of Motion re #4 MOTION for Preliminary Injunction, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Exhibit A - Medical Information, #2 Exhibit B - Declaration of Charles Barker dated April 23, 2019, #3 Exhibit C - Ask the Doctor)(NAD) |
| Filing 26 Emergency MOTION to Appoint Counsel, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Exhibit A - Letter dated April 11, 2019)(NAD) |
| Filing 25 RESPONSE in Opposition re #4 MOTION for Preliminary Injunction , filed by Defendants PAUL TALBOT, WEXFORD HEALTH OF INDIANA, LLC. (Attachments: #1 Exhibit A - Affidavit of Dr. Talbot)(Bitner, Douglass) |
| Filing 24 Corporate Disclosure Statement by WEXFORD HEALTH OF INDIANA, LLC identifying Corporate Parent THE BANTRY GROUP for WEXFORD HEALTH OF INDIANA, LLC.. (Bitner, Douglass) |
| Filing 23 NOTICE of Appearance by Douglass R. Bitner on behalf of Defendants PAUL TALBOT, WEXFORD HEALTH OF INDIANA, LLC. (Bitner, Douglass) |
| Filing 22 NOTICE of Exhaustion of Administrative Remedies, filed by Plaintiff CHARLES BARKER (Attachments: #1 Exhibit 1 - Declaration of Charles Barker, #2 Exhibit 2 - Declaration of Robert Peacher, #3 Exhibit 3 - Offender Grievance Process section X-X1, #4 Exhibit 4 - Offender Grievance received 4/3/19, #5 Exhibit 5 - Offender Grievance Process section IV, #6 Exhibit 6 - Return of Grievance, #7 Exhibit 7 - Offender Grievance Process section C, #8 Exhibit 8 - Grievance Appeal received 4/10/19) (NAD) Modified on 4/18/2019 - Edited text to match document title(NAD). |
| Filing 21 WAIVER OF SERVICE Returned Executed, filed by CHARLES BARKER. PAUL TALBOT waiver sent on 4/3/2019. (Attachments: #1 Envelope)(NAD) |
| Filing 20 WAIVER OF SERVICE Returned Executed, filed by CHARLES BARKER. WEXFORD HEALTH OF INDIANA, LLC waiver sent on 4/3/2019. (Attachments: #1 Envelope)(NAD) |
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Filing 19
ORDER ON APRIL 11, 2019, TELEPHONIC STATUS CONFERENCE - Plaintiff appeared in person and Defendants appeared by counsel April 11, 2019, for a telephonic status conference. Discussion was held regarding case status and related matters. Defendants shall file a response to Plaintiff's motion for preliminary injunction by April 19, 2019, and Plaintiff shall file any reply by May 3, 2019. Signed by Magistrate Judge Tim A. Baker. (MGG)
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| Filing 18 Submission of Second Supplement to His #4 Motion for Preliminary Injunction, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Exhibit 1 - Understanding the Cause)(NAD) Modified on 4/10/2019 - Added link to #4 (NAD). |
| Filing 17 Submission of Supplement to Complaint, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Exhibit A - Offender Grievance, #2 Exhibit 2 - Return of Grievance, #3 Exhibit 3 - Grievance Appeal)(NAD) |
| Filing 16 RECEIPT #IP064643 for filing fee in the amount of $400.00, paid by Plaintiff. (DJH) |
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Filing 15
ORDER - DENYING #14 MOTION REQUESTING ORDER FOR ATTENDANCE OF HELPER. Plaintiff Charles Barker has requested that his "helper," Robert Peacher, another inmate at Pendleton Correctional Facility be permitted to attend the April 11, 2019, status conference in this action. Mr. Barker's motion requesting order for attendance of helper, dkt. #14 , is denied. Only counsel and parties are permitted to participate in court proceedings. To the extent Mr. Barker requires assistance of counsel, he may file requesting that the Court attempt to recruit counsel for Mr. Barker. The clerk is directed to include a copy of the Court's blank motion for assistance recruiting counsel with Mr. Barker's copy of this Order. Signed by Judge Tanya Walton Pratt on 4/8/2019. (Attachments: #1 Blank Motion for Assistance with Recruiting Counsel) (NAD)
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| Filing 14 MOTION Requesting Order for Attendance of Helper During April 11, 2019 Court Conference Call, filed by Plaintiff CHARLES BARKER. (Attachments: #1 Text of Proposed Order)(NAD) |
| Filing 13 DECLARATION of non-party Robert Preacher. (NAD) |
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Filing 12
ORDER to Make Inmate Available - via Telephone. Warden of Pendleton Correctional Facility ordered to make Charles Barker Available - via Telephone for court proceeding on 4/11/2019. Signed by Magistrate Judge Tim A. Baker on 4/4/2019.(MGG)
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Filing 11
SCHEDULING ORDER-TELPHONIC Status Conference set for 4/11/2019 at 11:45 AM before Magistrate Judge Tim A. Baker. Defendants shall appear by counsel and Plaintiff shall personally participate in this telephonic conference. The purpose of this conference is to address case management and Plaintiff's motion for preliminary injunction #4 . Signed by Magistrate Judge Tim A. Baker on 4/4/2019.(CBU)
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| Filing 10 NOTICE of Lawsuit & Waiver Issued by Clerk to: (1) Dr. Paul Talbot; (2) HSA Michelle LaFlower; (3) Lisa Bergeson; and (4) Wexford Health of Indiana, LLC. (NAD) |
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Filing 9
Order Screening Complaint and Directing Service of Process - Mr. Barker's Eighth Amendment claims against defendants Dr. Paul Talbot, Michelle LaFlower, Lisa Bergeson, and Wexford shall proceed. If the plaintiff believes that additional claims were alleged in the complaint, but not identified by the Court, he shall have through May 2, 2019, in which to identify those claims. The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants Dr. Paul Talbot, Michelle LaFlower, Lisa Bergeson, and Wexford in the manner specified by Fed. R. Civ. P. 4(d). Process shall consist of the complaint (docket #2 ), applicable forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons), and this Order. Signed by Judge Tanya Walton Pratt on 4/3/2019.(NAD)
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Filing 8
Order - Granting #3 Prisoner Request to Proceed in District Court While Waiting for the Filing Fee to Arrive to Court. Plaintiff Charles Barker asserts that he has requested that the $400 filing fee for this action be sent to the Court, but that there is a delay. He requests that the Court proceed with his case while waiting for the filing fee. Mr. Barker's "prisoner request to proceed in district court while waiting for the filing fee to arrive to court," dkt. #3 , is GRANTED. Signed by Judge Tanya Walton Pratt on 4/1/2019. (NAD)
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| Filing 7 Submission of Supplement to Emergency Motion at Dkt. #4 , filed by Plaintiff CHARLES BARKER. (NAD) |
| Filing 6 Letter Regarding Update to Emergency Motion from Charles Barker. (NAD) |
| Filing 5 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (MAC) |
| Filing 4 MOTION for Preliminary Injunction (Emergency, Life and Death), filed by Plaintiff CHARLES BARKER. (Attachments: #1 Exhibit Declarations). (MAC) |
| Filing 3 MOTION for Leave to Proceed in forma pauperis, filed by Plaintiff CHARLES BARKER. (MAC) |
| Filing 2 COMPLAINT against L. BERGESON, M. LAFLOWER, P. TALBOT, WEXFORD HEALTH OF INDIANA, LLC, filed by CHARLES BARKER. (No fee paid with this filing). (Attachments: #1 Cover Letter). (MAC) |
| Filing 1 CONSENT to Prisoner E-Service by CHARLES BARKER located at PENDLETON CF. Pursuant to General Order 2013-1, documents submitted by CHARLES BARKER to the court for filing will generate a Notice of Electronic Filing that will constitute official service upon registered users of CM/ECF. If any parties to the case are not registered CM/ECF users, the Clerk of the Court will mail the document via U.S. Postal Service on behalf of the inmate. NOTE: The E-Filing Program does not affect the obligation of other parties to serve copies of documents in accordance with the Federal Rules of Civil Procedure. (MAC) |
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