Edwards v. Wexford Health Sources Inc

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

MICHAEL EDWARDS, )

)

Plaintiff, )

v. ) No.: 21-cv-3054-JBM

)

WEXFORD HEALTH SOURCES, INC., )

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 and negligence at the Taylorville Correctional Center

(“Taylorville”). 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).

On an unidentified date, Plaintiff fell and injured his shoulder. On October 26, 2019, he

was seen by Defendant Dr. Nawoor who provided only Tylenol. Plaintiff asserts that this did

little to relieve the pain and, that in the next two months, he went to the healthcare unit 10 times

seeking pain relief. Plaintiff was prescribed a course of physical therapy, but when he requested

MRI diagnostic testing, was told he would have to complete a six-week course of therapy before

the MRI would be scheduled.

Plaintiff underwent an MRI on February 21, 2020. The test revealed an injury to the

rotator cuff and a full thickness tear of the biceps tendon. Plaintiff claims that he should have had

a surgical correction at this time, but this was not done until October 9, 2020, some eight months

after the MRI results were known. Plaintiff makes the general claim that “medical staff” and

Wexford were aware of the extent of his injuries, but impermissibly delayed surgery. Plaintiff

claims that his orthopedic surgeon indicated that, had the repair been effected earlier, the surgery

would have been less extensive. Plaintiff also asserts that a second surgery will be necessary as a

stent placed in his biceps tendon has failed. Plaintiff requests compensatory and punitive

damages.

ANALYSIS

It is well established that deliberate indifference to a serious medical need is actionable as

a violation of the Eighth Amendment. Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008).

Deliberate indifference is proven by demonstrating that a prison official knows of a substantial

risk of harm to an inmate and “either acts or fails to act in disregard of that risk.” Arnett v.

Webster, 658 F.3d 742, 751 (7th Cir. 2011). The failure to address pain readily treatable pain

may be evidence of deliberate indifference. Petties v. Carter, 836 F.3d 772, 730 (7th Cir. 2016),

as amended (Aug. 25, 2016).

Here, Plaintiff asserts that Dr. Nawoor was both deliberately indifferent and negligent in

the treatment he provided. However, Plaintiff has only pled seeing Defendant Nawoor on one

occasion, October 26, 2019. At that time, Defendant prescribed Tylenol for pain. While Plaintiff

alleges that this was ineffective, he does not claim that Defendant Nawoor was aware of this.

While Plaintiff claims he went to the healthcare unit 10 times, seeking pain relief, he does not

allege that he saw Dr. Nawoor or that Dr. Nawoor was notified of his complaints. While Plaintiff

has complained that an MRI was not done sooner, and surgery scheduled sooner, he does not

plead against Dr. Nawoor as to either of these complaints.

As a result, the Court finds that the factual basis pled by Plaintiff is insufficient to support

the inference that Defendant knew or should have known that Plaintiff’s condition required an

analgesic stronger than Tylenol. This, particularly, as Plaintiff does not allege any subsequent

treatment by Defendant which could have reasonably caused Defendant to reevaluate and change

his original treatment plan. The same applies to the alleged delay in scheduling the MRI and

subsequent surgery. Plaintiff does not claim that he was seen by Defendant on subsequent

occasions, and that he informed Defendant that he continued to experience severe pain so that

different treatment might have been considered. As a result, Plaintiff fails to allege a factual

basis to support that any delay in treatment was attributable to Defendant Nawoor, whom

according to his pleadings, he saw on only one occasion.

As noted, Plaintiff also asserts that Dr. Nawoor was negligent in the care he provided. It

is clear, however, that allegations of mere negligence will not state a constitutional claim. Davis

v. Wessel, 792 F.3d 793, 801 (7th Cir. 2015) (negligently inflicted harm does not amount to a

constitutional violation). If Plaintiff seeks to proceed on a state law negligence claim regarding

medical treatment, he must assert it under the Illinois Healing Arts Malpractice statute. 735 ILCS

5/2-622 et. seq. The statute requires that a plaintiff provide an affidavit and a “certificate of

merit,” a written report by a health professional attesting that there is a “reasonable and

meritorious cause for the filing.” 735 ILCS 5/2-622(a). See Hahn v. Walsh, 762 F.3d 617, 628-33

(7th Cir. 2014) (Rule 2-622 applies to state law claim filed in federal court). See also, Young v.

U.S., 942 F.3d 349 at *2, 2019 WL 5691878 (7th Cir. 2019) (Plaintiff must provide affidavit and

certificate of merit by summary judgment stage).

Plaintiff complains against Defendant Nursing Director Eggiman that she canceled his

low bunk permit, and that until it was reinstated four days later, he suffered significant pain

accessing the top bunk. “In order to prevail on a deliberate indifference claim, a plaintiff must

show (1) that his condition was ‘objectively, sufficiently serious’ and (2) that the ‘prison officials

acted with a sufficiently culpable state of mind…With respect to the culpable state of mind,

negligence or even gross negligence is not enough; the conduct must be reckless in the criminal

sense.” Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008)(quoting Greeno v. Daley, 414 F.3d 645,

652 (7th Cir. 2005)); Farmer v. Brennan, 511 U.S. 825, 836-37 (1994).

Here, Plaintiff does not allege that Defendant Eggiman was aware of his condition, or

aware that canceling his low bunk permit would cause him harm. Plaintiff does not plead that he

had any contact with Defendant Eggiman and that her changing his sleeping arrangements

amounted to a disregard for his medical condition. As a result, Plaintiff fails to plead that

Defendant had the culpable state of mind necessary to plead a deliberate indifference claim. See

Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir.1998) (deliberate indifference “is

more than negligence and approaches intentional wrongdoing.”).

Plaintiff names Healthcare Administrator Hockney, IDOC Director Jeffreys and

Administrative Review Board member Benton in the caption but plead no claims against them.

Merely naming a defendant in the caption is insufficient to state a claim. Collins v. Kibort, 143

F.3d 331, 334 (7th Cir.1998). Furthermore, the mere fact that Defendants have supervisory

authority over others fails to state a claim, as § 1983 limits liability to public employees “for

their own misdeeds, and not for anyone else's.” Burks v. Raemisch, 555 F.3d 592, 595–96 (7th

Cir.2009). Prison administrators are entitled to relegate to others the primary responsibility for

specific prison functions without becoming vicariously liable for the failings of their

subordinates. Id. Defendants Hockney, Jeffreys and Benton are DISMISSED.

Plaintiff’s generalized allegations against “medical staff” and “nurses” must also be

dismissed. This is so, as the allegations are too vague to state a claim or put any potential

Defendant on notice of the claims against him. See Ross Brothers Construction Co., Inc, v.

International Steel Services, Inc. 283 F.3d 867, 872 (7th Cir. 2002), quoting Davis v. Ruby

Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001) (“[t]he essential function of a complaint under the

civil rules…is to put the defendant on notice of the plaintiff’s claim.”) Plaintiff will have an

opportunity to replead these claims, should he wish.

While Plaintiff names Wexford, he does not allege that he was injured due to a Wexford

policy. Wexford is potentially liable only if its policy or practice caused a constitutional injury.

Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92 (1978). See

also, 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.)

IT IS THEREFORE ORDERED:

1. Plaintiff’s complaint is DISMISSED for failure to state a claim under Fed. R. Civ.

P. 12(b)(6) and 28 U.S.C. § 1915A.Plaintiff will have an opportunity, within 30 days, 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. The 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 [7], a letter requesting the status of this case. [7] is rendered MOOT

by this order. Plaintiff is instructed that in the future, if he seeks relief of this Court, he is to file it

in the form of a motion.

3. Plaintiff files [8], requesting the recruitment of pro bono counsel. Plaintiff has

provided documents to support that he attempted to obtain counsel on his own. The inquiry does

not end there, however, as the Court must determine whether plaintiff appears competent to

litigate his own claims. This is so, as the Court does not possess the authority to require an

attorney to accept pro bono appointments on civil cases such as this. Pruitt v. Mote, 503 F.3d

647, 653 (7th Cir. 2007). The most that the Court can do is to ask for volunteer counsel.

Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). This inquiry is an

individualized one based upon the record as a whole, the nature of the claims, and the plaintiff’s

ability to pursue his claims through all phases of the case, including discovery and trial. Navejar

v. Iyioloa, 718 F.3d 692, 696 (7th Cir. 2013). Plaintiff claims to have only an eighth-grade

education and to be unschooled in the law. The Court notes, however, that Plaintiff has filed

three prior cases and here, has filed a cogent complaint alleging deliberate indifference against

two medical providers. At this stage, the claim does not appear unduly complex and clearly

involves issues of which Plaintiff has direct, personal knowledge. [8] is DENIED.

4. Plaintiff files [9] requesting a copy of the merit review order. [9] is GRANTED,

as the Clerk is to follow normal procedures in forwarding a copy of this order to Plaintiff at his

place of confinement. Plaintiff files [10], asking leave to file a request for punitive damages. [10]

is rendered MOOT, however, as Plaintiff filed a request for punitive damages with his complaint.

5. Plaintiff files [11], requesting an extension as to a scheduling order. The Court

has not entered a scheduling order and will not do so until Plaintiff’s complaint passes merit

review and Defendants are served [11] is MOOT.

ENTERED: __5_/_1_4_/2_0_2_1________

_______s/Joe Billy McDade ___

JOE BILLY McDADE

UNITED STATES DISTRICT JUDGE