Regan v. Wexford

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

JOHN REGAN, )

)

Plaintiff, )

v. ) No.: 20-cv-1352-JBM

)

WEXFORD, et al., )

)

Defendants. )

MERIT REVIEW

Plaintiff, proceeding pro se, files a complaint under 42 U.S.C. § 1983, alleging deliberate

indifference to his serious medical needs at the Pontiac Correctional Center (“Pontiac”). 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 pleads that he was diagnosed with degenerative disc disease approximately one

year prior to the incidents at issue and was prescribed an unidentified pain medication. When the

prescription ran out on July 17, 2018, Plaintiff submitted two sick call slips and did not receive a

response. After waiting 20 days, Plaintiff filed an emergency grievance. The grievance was

denied as representing an emergency, and Plaintiff was instructed to send the grievance to the

Grievance Officer. Plaintiff did so, sending the grievance to Defendant Cox, who recommended

that it be denied.

Plaintiff was seen by medical staff on August 20, 2018, at which time his prescription

was renewed. He did not timely receive the pain medication, however, as it was not delivered to

his cell until August 28, 2018. Plaintiff asserts that over the 41-day period he went without his

medication, he suffered extreme pain in his right leg, foot and mid to lower back which affected

his sleep and daily activities.

Plaintiff alleges that Wexford “has a habit” of making inmates wait weeks for medication

refills and that Pontiac and IDOC have done nothing to stop this practice. Plaintiff criticizes

former Pontiac Warden Kennedy and former Director Baldwin for failing to put a stop to this

“cruelty”, not indicating whether he names Defendants in their personal or official capacities.

Plaintiff requests compensatory and punitive damages, as well as costs.

ANALYSIS

Deliberate indifference a prisoner’s serious medical need violates the Eighth

Amendment. Snipes v DeTella, 95 F.3d 586, 590 (7th Cir. 1996), citing Estelle v. Gamble, 429

U.S. at 104, 97 S.Ct. 285 (1976). To the extent Plaintiff’s complaint is construed against

Defendants Baldwin and Kennedy in their personal capacities, he must plead that Defendants’

conduct rose to the level of “punishment,” that is, that they acted so dangerously that it may be

inferred that they knew of “an impending harm easily preventable.” Antonella v. Sheehan, 81

F.3d 1422, 1427 (7th Cir. 1996). “To determine if a prison official acted with deliberate

indifference, we look into his or her subjective state of mind.” Petties v. Carter, 836 F.3d 722,

729–30 (7th Cir. 2016), as amended (Aug. 25, 2016) (internal citations omitted). The defendant

must have actually known of, and disregarded a substantial risk that Plaintiff would suffer harm.

Id. at 729–30. Defendants do not become liable merely as a result of their supervisory positions

over others, as the doctrine of respondeat superior (supervisor liability) does not apply to actions

filed under §1983. Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir. 1992).

Here, Plaintiff names Defendants Baldwin and Kennedy but fails to plead that either had

actual knowledge of Plaintiff’s condition so as to have been deliberately indifferent and liable in

their individual capacities. The Court considers, therefore, whether it was Plaintiff’s intent to

name Defendants in their official capacities. See Briggs v. Meadows, 66 F.3d 56, 61 (4th Cir.

1995)(court to examine the nature of plaintiff’s claims where he does not expressly plead against

defendants in either personal or official capacities); Hill v. Shelander, 924 F.2d 1370, 1374 (7th

Cir. 1991).

This avenue, too, is unavailing to Plaintiff as “[o]fficial capacity suits, generally represent

an action against an entity of which an officer is an agent.” Brandon v. Holt, 469 U.S. 464, 469

(1985). It is not a suit against the official personally, for the real party in interest is the entity.

Kentucky v. Graham, 473 U.S. 159, 166 (1985). However, the two potential entity Defendants,

IDOC and Pontiac, are not “persons” amendable to suit for money damages under § 1983.

Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (“[A] state and its agencies are not suable

‘persons’ within the meaning of section1983…” (citing Will v. Mich. Dep’t of State Police, 491

U.S. 58, 70-71 (1989)).1 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).

1 See id. at n. 10 citing Kentucky v. Graham, 473 U.S., at 167, n. 14. However, a state official sued in his official

capacity for injunctive relief is considered a “person” under § 1983 because “official-capacity actions for

prospective relief are not treated as actions against the State.”

Furthermore, as agencies of the State of Illinois, IDOC and Pontiac enjoy the State’s

Eleventh Amendment sovereign immunity. See 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). See Wittmer v. Peters, 904 F. Supp. 845, 855 (C.D. Ill. 1995), aff'd, 87 F.3d 916

(7th Cir. 1996) (applying Eleventh Amendment sovereign immunity to dismiss claim for money

damages against Warden in his official capacity).

Defendants Baldwin and Kennedy are DISMISSED. Plaintiff will be given an

opportunity, however, to replead against these individuals in their individual capacities. If

Plaintiff does so, he is to plead facts to support that the Defendants were aware of his complaints

and deliberately indifferent to them. That is, that they personally participated in the deprivation.

See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009), “[p]ublic officials do not have a free-

floating obligation to put things to rights, disregarding rules (such as time limits) along the way.

Bureaucracies divide tasks; no prisoner is entitled to insist that one employee do another's

job.…the Superintendent of Prisons and the Warden of each prison, is entitled to relegate to the

prison's medical staff the provision of good medical care.”

Plaintiff names Grievance Officer Cox but pleads no direct allegations against her. While

he might be asserting that Defendant Cox is liable for recommending that his grievance be

denied, an individual does not become liable for an alleged constitutional violation merely by

denying a grievance. See George v. Smith, 507 F.3d 605, 609 (7th Cir.2007) (rejecting that

“anyone who knows about a violation of the Constitution, and fails to cure it, has violated the

Constitution himself…Only persons who cause or participate in the violations are responsible.”)

See also, Hoban v. Godinez, 502 Fed.Appx. 574, 578–79, 2012 WL 5395186, at *4 (7th Cir.

2012)(“those who review administrative decisions of others, like the prison grievance officer and

the members of the Review Board… are not liable.”)

As to Medical Director Rambo, Plaintiff names her in the caption but does not plead any

claims against her. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir.1998) (a plaintiff fails to

state a claim where he names an individuals in the case caption but does not mention them in the

narrative of the complaint). This is so, as “to be liable under [Section] 1983, an individual

defendant must have caused or participated in a constitutional deprivation.” Pepper v. Village of

Oak Park, 430 F.3d 809, 810 (7th Cir.2005) (citations omitted).

Plaintiff’s complaint against the remaining Defendant Wexford, is that it had a “habit” of

denying refills of pain medication in this case and others. Private corporation such as Wexford

have potential liability under Monell v. New York City Department of Social Services, 436

U.S. 658, 691-92 (1978) if they perform a governmental function and, in doing so, injure

plaintiff through an unconstitutional policy or practice. Iskander v. Village of Forest Park, 690

F.2d 126, 128 (7th Cir. 1982) (applying municipal liability to private corporations performing

governmental functions). Here, Plaintiff has not pled the existence of a particular policy nor

alleged that he was injured through an unofficial policy or custom. As a result, his allegations

against Wexford are insufficient to place Defendant on notice of the claims against it. McCauley

v. City of Chicago, 671 F.3d 611, 617-18 (7th Cir. 2011) (a plaintiff must plead a sufficient

factual basis for a Monell claim). See also, Olive v. Wexford Corp., 494 Fed. Appx. 671, 672–73

(7th Cir. 2012) (bare allegations that Wexford had an unconstitutional policy or practice, “does

not identify any concrete policy, let alone an unconstitutional one; it is more in the nature of an

insult than the sort of allegation required by Monell and Twombly, 550 U.S. 544.”); Taylor v.

Wexford Health Sources, Inc., No.15-5190, 2016 WL 3227310, at *4 (N.D. Ill. June 13, 2016)

(dismissing Monell claim where “allegations of Wexford's policies and practices are vague and

broad, lacking in sufficient detail to put Wexford on notice of the claim against it.”) Plaintiff’s

complaint fails to provide this notice and his complaint is DISMISSED, though he will be given

leave to amend.

IT IS THEREFORE ORDERED:

1. Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R.

Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff will have 30 days from the entry of this order

in which to replead. The pleading is to be captioned Amended Complaint and is to include all of

Plaintiff’s claims without reference to a prior pleading. Failure to file an amended complaint will

result in the dismissal of this case, without prejudice, for failure to state a claim.

2. Plaintiff files [4], a motion for recruitment of pro bono counsel but does not

indicate that he attempted to secure counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55(7th

Cir. 2007). [4] is DENIED at this time. In the event that Plaintiff renews his motion, he is to

provide copies of the letters sent to, and received from, prospective counsel.

3. Plaintiff files [5], a motion to seal the case, indicating that he wishes to keep his

protected health information private. The Court does not, generally, approve of the filing of

documents under seal. CDIL-LR 5.10(A)(2). The Court is to seal only after determining good

cause for sealing the record. Citizens First National Bank of Princeton v. Cincinnati Ins. Co., 178

F.3d 943, 944 (7th Cir. 1999). Here, Plaintiff fails to establish good cause. Furthermore, if the

case were sealed the parties would not be able to avail themselves of the e-filing system. CDIL-

LR 5.10(A)(3). Plaintiff is informed, however, that if he files an amended complaint which

survives merit review, the Court will issue a HIPAA order restricting the use and publication of

his medical information. [5] is otherwise DENIED.

_ 2/22/2021 s/ Joe Billy McDade

ENTERED JOE BILLY McDADE

UNITED STATES DISTRICT JUDGE