Hawkins v. Duprey

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

RYAN HAWKINS )

)

Plaintiff, )

v. ) No.: 20-cv-2193-MMM

)

NURSE PRACTITIONER DUPREE, et al., )

)

Defendants. )

MERIT REVIEW ORDER

Plaintiff, proceeding pro se and in forma pauperis, pursues a § 1983 action for deliberate

indifference to his serious medical needs at the Danville Correctional Center (“Danville”). The

case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the

complaint, the Court accepts the factual allegations as true, liberally construing them in

Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649-51 (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 and internal quotation marks omitted). While the pleading standard does not require

“detailed factual allegations”, it requires “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiff alleges that he has been suffering from upper back pain since November 2019.

On January 27, 2020, Plaintiff’ was seen by Defendant Nurse Practitioner Dupree. Defendant

Dupree prescribed a “strong pain pill” and muscle relaxers and ordered an x-ray. When Plaintiff

was seen by Defendant for the x-ray two days later, Plaintiff informed him that he had not yet

received the medication which had been ordered. It appears that Defendant took no action as,

when Plaintiff was seen by another practitioner two weeks later, he had still not received the

medication.

On an unidentified date, Plaintiff spoke with a Jane Doe Nurse, complaining of the delay.

The Nurse responded that things were likely slow due to the holidays. Plaintiff claims, however,

that Jane Doe Nurse never documented in the record his complaints or the fact that he had not

received his medication. In March and April 2020, Plaintiff spoke with Nurse Tina, complaining

of extreme pain, apparently still not having received his medication. Defendant Tina indicated

she would follow up, but she, too, took no action. On May 29, 2020, Plaintiff saw another nurse

named “Dana” or “Donna.” This individual indicated that she would look into the failure to

provide the medication, but still, the medication was not forthcoming.

Plaintiff assert that he continues in pain with restricted movement, alleging that that he

has essentially received no treatment at all and, though his problems persist, no diagnosis.

Plaintiff names N.P. Dupree and the three nurses. He also names Wexford Health Sources, Inc.,

and Danville. Plaintiff requests compensatory and punitive damages as well as injunctive relief,

that his problem be diagnosed and surgery be provided, if needed.

ANALYSIS

To state a claim for deliberate indifference to a serious medical need, Plaintiff must

plead sufficient facts to establish that that he (1) suffered from an objectively serious medical

condition; and (2) that the defendant was deliberately indifferent to a risk of serious harm

from that condition. See Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012); Estelle v.

Gamble, 429 U.S. 97, (1976); Farmer v. Brennan, 511 U.S. 835, 837 (1994). Here, Plaintiff

states a colorable claim against Defendants Dupree, Tina and Dana (or Donna) as well as the

Jane Doe Nurse as he sufficiently pleads that they were deliberately indifferent to his

complaints of pain and complaints that the medication which had been ordered from him was

never dispensed. See Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016), as amended

(Aug. 25, 2016) (“the Eighth Amendment ‘safeguards the prisoner against a lack of medical

care that ‘may result in pain and suffering which no one suggests would serve any

penological purpose.’”)

Plaintiff also alleges that Wexford had an unconstitutional policy under which a patient

was required to be seen three times by nursing staff before being referred to a physician.

Wexford may be liable for a constitutional injury under Monell v. Dep’t of Social Servs. Of City

of New York, 436 U.S. 658, 691-92 (1978), but only if it had a policy or practice which resulted

in injury to plaintiff. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (to

adequately plead Monell liability, allegations “must allow [the court] to draw the reasonable

inference that the [defendant] established a policy or practice” which caused the injury.) Here,

Plaintiff alleges that he experienced pain and restricted movement because Defendants did not

provide the pain pills and muscle relaxants which had been prescribed for him. As a result, he

was allegedly injured by Defendants’ failures to act rather than their having acted pursuant to a

Wexford policy or practice. Wexford is DISMISSED without prejudice.

Plaintiff also names Danville, which is not amenable to suit under §1983. Danville is an

agency of the State of Illinois and enjoys the State’s Eleventh Amendment sovereign immunity

against federal court claims for money damages. Sittig v. Illinois Dept. of Corr., 617 F. Supp.

1043, 1044 (N.D. Ill. 1985); Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.2001) (Eleventh

Amendment bars federal court suit for money damages against state prison and Department of

Corrections). Furthermore, the statutory scheme of § 1983 provides relief to one injured by a

“person” operating under color of law. A state or state agency is not a “person” amenable to suit.

Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012). See Wright v. Porter County, 2013 WL

11761909, *2 (N.D. Ind. Mar. 19, 2013)(dismissing IDOC and the East Moline Correctional

Center as not persons amendable to suit under § 1983). Danville is DISMISSED with prejudice.

IT IS THEREFORE ORDERED:

1. This case shall proceed solely on the deliberate indifference claims against

Defendant Dupree, Nurse Tina, Nurse “Dana” or “Donna” and the Jane Doe Nurse. Wexford is

DISMISSED though Plaintiff will have 30 days in which to replead his claims against Wexford,

should he wish. The pleading is to be captioned Amended Complaint and is to include all of

Plaintiff’s claims without reference to a prior pleading. All other claims will not be included in

the case, except in the Court's discretion upon motion by a party for good cause shown, or by

leave of court pursuant to Federal Rule of Civil Procedure 15. Danville is DISMISSED with

prejudice.

2. Plaintiff files [10], a letter in which he requests the recruitment of pro bono

counse. Plaintiff’s prior request had been denied for his failure to document a good faith effort to

secure counsel on his own. See Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).

Notwithstanding, Plaintiff files the letter without documenting any such effort. [10] is DENIED.

In the event that Plaintiff renews his motion for appointment of counsel, he is to provide copies

of the letters sent to, and received from, prospective counsel. Plaintiff is also advised that if he

requests relief of this Court, he is to file it as a motion, not as a letter.

3. The Clerk is directed to send to each Defendant pursuant to this District's internal

procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3)

a copy of the Complaint; and 4) a copy of this Order.

4. 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 on that

Defendant and will require that Defendant pay the full costs of formal service pursuant to

Federal Rule of Civil Procedure 4(d)(2). If a Defendant no longer works at the address provided

by Plaintiff, the entity for which Defendant worked at the time identified in the Complaint shall

provide to the Clerk Defendant's current work address, or, if not known, Defendant's forwarding

address. This information will be used only for purposes of effecting service. Documentation of

forwarding addresses will be maintained 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 prescribed by Local Rule. A Motion to

Dismiss is not an answer. The answer it to include all defenses appropriate under the Federal

Rules. The answer and subsequent pleadings are to address the issues and claims identified in

this Order.

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 will be stricken by the Court.

7. Once counsel has appeared for a Defendant, Plaintiff need not send copies of

filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintiff's

document electronically and send notice of electronic filing to defense counsel. The notice of

electronic filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic

service on Defendants is not available, Plaintiff will be notified and instructed accordingly.

8. Counsel for Defendants is hereby granted leave to depose Plaintiff at Plaintiff's

place of confinement. Counsel for Defendants shall arrange the time for the depositions.

9. Plaintiff shall immediately notice the Court of any change in mailing address or

phone number. The Clerk is directed to set an internal court deadline 60 days from the entry of

this Order for the Court to check on the status of service and enter scheduling deadlines.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD

PROCEDURES;

2) SET AN INTERNAL COURT DEADLINE 60 DAYS FROM THE ENTRY OF

THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND ENTER

SCHEDULING DEADLINES, AND,

3) ENTER THE STANDARD QUALIFIED PROTECTIVE ORDER PURSUANT TO

THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT.

LASTLY, IT IS ORDERED THAT 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).

ENTERED: ___1_1_/1_9_/_2_0_2_0___

_____s/Michael M.Mihm______

MICHAEL M. MIHM

UNITED STATES DISTRICT JUDGE