Gaddy v. Wexford Health Sources Inc

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

GERALD GADDY, )

Plaintiff, )

)

vs. ) Case No. 20-4195

)

WEXFORD HEALTH SOURCES, INC., et.al., )

Defendants. )

MERIT REVIEW ORDER

JAMES E. SHADID, U.S. District Judge:

This cause is before the Court for consideration of Plaintiff’s motion for leave to

amend his complaint. [9].

Plaintiff’s original complaint was dismissed for failure to state a claim upon

which relief could be granted. See December 4, 2020 Merit Review Order; 28 U.S.C.

§1915A. Most of Plaintiff’s claims appeared to allege only his dissatisfaction with the

medical care provided and not a violation of his constitutional rights. Since it was

possible Plaintiff could articulate a violation of his Eighth Amendment rights, the Court

explained the additional information needed and allowed him time to file an amended

complaint. Plaintiff has now filed a motion for leave to amend which is granted

pursuant to Federal Rule of Civil Procedure 15. [9]’

The Court is still required by 28 U.S.C. §1915A to “screen” the Plaintiff’s

amended complaint, and through such process to identify and dismiss any legally

insufficient claim, or the entire action if warranted. 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.” 28 U.S.C.

§1915A.

Plaintiff again alleges his constitutional rights were violated at Hill Correctional

Center by Defendants Wexford Health Source, Dr. Ek, and Warden Stephanie Dorethy.

Plaintiff also repeats his history of his knee and shoulder pain at Stateville Correctional

Center and Menard Correctional Center from 2016 to 2018. On May 18, 2018, Plaintiff

says he was diagnosed with degenerative disc disease as well as mild to advanced

osteoarthritis in his right shoulder. A doctor ordered physical therapy and a follow-up

visit if his symptoms worsened. The physical therapy was approved on September 6,

2018, but Plaintiff was transferred to Hill Correctional Center on October 4, 2018.

Plaintiff says he began to fill out sick call requests due to “excruciating pain and

discomfort.” (Amd. Comp., p. 4). Plaintiff asked about the physical therapy and

explained “the need for an MRI, stronger medication for pain.” (Amd. Comp., p. 4).

Plaintiff did receive medical passes to obtain physical therapy from

approximately October 11, 2018 through October 24, 2018. However, Plaintiff claims

correctional officers would not allow Plaintiff to leave his housing unit. The officers

said they were waiting to hear from Warden Dorethy, but the Warden “denied

plaintiff’s request for physical therapy.” (Amd. Comp., p. 5).

Plaintiff admits he was issued a disciplinary ticket for not attending the required

physical therapy session, but says the ticket was later expunged.

Plaintiff wrote a letter to Warden Dorethy complaining about the delay and

ultimate denial of his physical therapy and other medical care. Plaintiff does not state if

he ever received a response.

Plaintiff continued to submit regular sick call requests, but he was not allowed to

see a doctor until five months later on March 21, 2019. Plaintiff requested an MRI or x-

ray, stronger medication, and physical therapy. Dr. Ek confirmed the Warden had

delayed the prescribed physical therapy, but the doctor was not sure why. The doctor

then prescribed a lower bunk permit, physical therapy, and the same medication

Plaintiff was already receiving including Tylenol and Ibuprofen.

Plaintiff says Dr. Ek also prescribed steroid shots on two occasions to help with

pain. The doctor said if the pain continued, he would try other options to address his

right shoulder pain. It is unclear when Plaintiff received the first shot.

Plaintiff returned to see Dr. Ek on July 18, 2019 after filling multiple requests.

Plaintiff complained of headaches as well as pain and discomfort in his left knee, right

shoulder, neck, and back. Plaintiff again asked for an MRI or x-ray and physical

therapy. Dr. Ek thought Plaintiff was receiving the physical therapy the doctor ordered

in March.

The doctor again ordered physical therapy and the second steroid shot. Plaintiff

resumed physical therapy on July 19, 2019. Plaintiff claims it was scheduled for three

months, but it was stopped on August 19, 2019. A nurse told Plaintiff the physical

therapist terminated the sessions after he twice warned Plaintiff to stop using weights.

Plaintiff also learned Warden Dorethy had canceled his previous physical

therapy when Plaintiff “used the kiosk to reset his IDOC issued device (MP3).” (Amd.

Comp., p. 7). Plaintiff notes he never received a ticket for a rules violation based on this

incident.

Plaintiff says Dr. Ek refused to ensure Plaintiff received the prescribed physical

therapy, an x-ray or MRI, referral to an outside specialist, and effective pain medication.

Plaintiff says he continues to suffer in tremendous pain which impacts his ability to

perform daily functions.

Plaintiff has adequately alleged Defendant Dr. Ek was deliberately indifferent to

his serious medical condition when he delayed or denied medical care for his

osteoarthritis and pain. Plaintiff has also alleged Defendant Dorethy was deliberately

indifferent when he delayed or denied prescribed physical therapy.

Plaintiff has not stated a claim against the Warden based on failing to supervise

Wexford or other employees. The mere fact a defendant was a supervisor is insufficient

to establish liability because the doctrine of respondeat superior (supervisor liability) does

not apply to actions filed under 42 USC §1983. See Smith v. Gomez, 550 F.3d 613, 616 (7th

Cir. 2008)(supervisor liability not permitted under § 1983); Pacelli v. DeVito, 972 F.2d

871, 877 (7th Cir. 1992)(supervisors are not liable for the errors of their subordinates). In

addition, a Warden would not supervise Wexford employees.

In addition, Plaintiff has not stated a claim against Defendant Warden Dorethy

for disregarding his need for medical care at any other time. Plaintiff alleges only that

he wrote a letter to the Warden and did not receive a response. There is no indication

the Warden received the letter or knew about any other complaints regarding medical

care. Even if Plaintiff filed grievances, a denial of a grievance is not sufficient to

establish liability. See George v Smith, 507 F.3d 605, 609(7th Cir. 2007)(“Ruling against a

prisoner on an administrative complaint does not cause or contribute to the violation.”)

Plaintiff also claims Wexford was deliberately indifferent because the company

had a policy or practice of delaying referral to an outside provider. Based on the

complaint, it is not clear Plaintiff can demonstrate such a referral was appropriate in

this case. However, for the purpose of notice pleading, Plaintiff may proceed with his

official capacity claim.

IT IS THEREFORE ORDERED that:

1) Pursuant to its merit review of the amended complaint under 28 U.S.C. §

1915A, the Court finds the Plaintiff alleges: a) Defendant Dr. Ek was deliberately

indifferent to Plaintiff’s serious medical condition when he delayed or denied

medical care for his osteoarthritis and pain; b) Defendant Dorethy was

deliberately indifferent when he delayed or denied prescribed physical therapy;

and c) Wexford was deliberately indifferent to Plaintiff’s medical condition based

on a policy or practice of delaying referral to an outside provider. The claim

against Wexford is an official capacity claim. The two other claims are individual

capacity claims. Any 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 pursuant to

Federal Rule of Civil Procedure 15.

2) This case is now in the process of service. Plaintiff is advised to wait until

counsel has appeared for Defendants before filing any motions, in order to give

Defendants notice and an opportunity to respond to those motions. Motions filed

before Defendants' counsel has filed an appearance will generally be denied as

premature. Plaintiff need not submit any evidence to the Court at this time, unless

otherwise directed by the Court.

3) The Court will attempt service on Defendants by mailing each Defendant a

waiver of service. Defendants have 60 days from service to file an Answer. If

Defendants have not filed Answers or appeared through counsel within 90 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.

4) With respect to a Defendant who no longer works at the address provided by

Plaintiff, the entity for whom that Defendant worked while at that address shall

provide to the 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.

5) Defendants shall file an answer within 60 days of the date the waiver is sent by

the Clerk. 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 a motion is filed by Defendants. Therefore, no

response to the answer is necessary or will be considered.

6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of

his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk

will file Plaintiff's document electronically and send a notice of electronic filing

to defense counsel. The notice of electronic filing shall constitute service on

Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not

available, Plaintiff will be notified and instructed accordingly.

7) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place

of confinement. Counsel for Defendants shall arrange the time for the deposition.

8) Plaintiff shall immediately notify the Court, in writing, of any change in his

mailing address and telephone number. Plaintiff's failure to notify the Court of a

change in mailing address or phone number will result in dismissal of this lawsuit,

with prejudice.

9) Within 10 days of receiving from Defendants’ counsel an authorization to

release medical records, Plaintiff is directed to sign and return the authorization

to Defendants’ Counsel.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) Grant Plaintiff’s motion for leave to file an amended complaint, [9]

2) Attempt service on Defendants pursuant to the standard procedures; 3) 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 4) enter the

Court's standard qualified protective order pursuant to the Health Insurance

Portability and Accountability Act.

ENTERED this 26th day of April, 2021.

s/ James E. Shadid

____________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE