The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
WILLIAM FREDERICK, )
Plaintiff, )
)
vs. ) Case No. 21-4186
)
WEXFORD HEALTH SOURCES, et. al., )
Defendants )
CASE MANAGEMENT ORDER
JAMES E. SHADID, U.S. District Judge:
The pro se Plaintiff was detained at the Rushville Treatment and Detention
Center when he originally filed this lawsuit, but he has since been released. Plaintiff
seeks leave to proceed in forma pauperis (IFP). [7].
The "privilege to proceed without posting security for costs and fees is reserved
to the many truly impoverished litigants who, within the District Court's sound
discretion, would remain without legal remedy if such privilege were not afforded to
them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Plaintiff
has demonstrated he is unable to afford the filing fee.[7].
Additionally, a court must dismiss cases proceeding in forma pauperis "at any
time" if the action is frivolous, malicious, or fails to state a claim, even if part of the
filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court grants leave to
proceed in forma pauperis only if the complaint states a federal claim.
In reviewing the complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor. See Turley v. Rednour, 729 F.3d 645, 649
(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. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).
Plaintiff’s complaint identifies six Defendants at Rushville including Wexford,
Health Sources, Dr. David Marcowitz, Nurse Vanzandt, Nurse Watson, Nurse Jane Doe
and Security Therapy Aide (STA) Wanda Pennock. At some unspecified point, Plaintiff
says he began complaining to Rushville staff about his “declining health” and in
particular “his inability to maintain his balance as well as his perceived tiredness and
fainting.” (Comp., p. 5). Plaintiff says he suffers from Crohn’s disease as well as a
“compromised immune system.” (Comp, p. 6). As a result, Plaintiff says he takes
mediations which have the potential side effect of dizziness.
Medical staff was aware of Plaintiff’s complaint on July 22, 2020, when an
unspecified nurse wrote a note indicating Plaintiff wanted to see the doctor about a low
bunk permit because he had fallen seven times in the last 6 months getting in or out of
his top bunk.
No action was taken and on January 28, 2021, Plaintiff says he fainted while
climbing into his bed. Medical staff responded and Plaintiff met with Defendant Nurse
Vandzandt who notified Defendant Dr. Marcowitz. Plaintiff was taken to an outside
hospital.
Plaintiff says Defendant Nurse Vandzant did not provide any care prior to his
transport. The nurse did not clean or cover his wound, nor did she provide him with a
face mask. However, Plaintiff admits hospital staff did provide a mask as well as a
tetanus shot and eight staples to the back of his head. Plaintiff was also given a low
bunk permit.
Plaintiff met with Defendant Dr. Marcowitz the next day and spoke with him
about Plaintiff’s need for a continued low bunk permit. The doctor did not respond.
Later in the day, Plaintiff was informed he would be discharged from the top bunk.
Plaintiff appealed to Defendant STA Pennock. Plaintiff claims the Defendant could
have approved a low bunk, but she refused. Plaintiff also notified his clinical treatment
team he needed a low bunk.
Plaintiff fell again this same day causing additional injuries and pain to his side,
arm, shoulder, back, and neck. Plaintiff was transferred to the Fox Unit, but not to the
infirmary. Plaintiff does not explain why he was moved to this particular unit, nor is it
clear if he was in a top or bottom bunk. Plaintiff was advised Defendant Dr. Marcowitz
did not believe Plaintiff needed to be admitted to the infirmary and the doctor did not
order a low bunk permit, nor did he review Plaintiff’s medications as potential causes
of his dizziness.
On February 8, 2021, unspecified nurses documented Plaintiff’s complaints of
pain and referred Plaintiff to the doctor. Plaintiff says Defendant Nurses Watson and
Vandsandt did not provide him with any pain medications, nor any other care for what
he believes were cracked ribs. Plaintiff does not state whether any medical professional
diagnosed his rib injury.
Plaintiff was released from Fox Unit back to his original housing unit on
February 29, 2021 and he was moved to a lower bunk. Apparently, Plaintiff did have a
low bunk permit during this time period, but he was again informed on September 1,
2021 the permit was discontinued. Plaintiff was released from Rushville in November of
2021.
Plaintiff says his falls could have been avoided if he were given a low bunk
permit. In addition, Plaintiff says he was denied medical care because he should not
have been prescribed medication which caused dizziness. Dizziness can be a potential
side effect of many medications and Plaintiff does not state whether any medical
professional determined the cause of his dizziness, nor if he still has problems with
balance.
Plaintiff says Wexford has no policy to prevent the prescription of medications
which cause dizziness. Plaintiff also complaints about a sick call request system
because it does not document the reason for the request.
Plaintiff has adequately alleged Defendant Dr. Marcowitz violated his
Fourteenth Amendment rights when he denied a low bunk permit, he did not make an
effort to determine the causes of Plaintiff’s dizziness, and he denied care for Plaintiff’s
pain after the fall. Plaintiff has further alleged Defendant Nurses Vadzandt and
Watson were deliberately indifferent to his continued reports of pain. Plaintiff has
further alleged Defendant Pennock violated Plaintiff’s Fourteenth Amendment rights
based on failure to provide a low bunk permit.
Plaintiff has not clearly alleged a claim against Nurse Vandzandt on the day he
fell because he admits the nurse immediately notified the doctor and Plaintiff was
transported to the hospital where he did receive needed care and a mask. Plaintiff has
also failed to articulate a claim against Defendants Wexford Health Sources or Nurse
Jane Doe, and he has not articulated an official capacity claim.
IT IS ORDERED:
1. Plaintiff's petition to proceed in forma pauperis is granted. [7]. Pursuant
to a review of the Complaint, the Court finds that Plaintiff states the following federal
constitutional claims: a) Defendant Dr. Marcowitz violated Plaintiff’s Fourteenth
Amendment rights when he denied Plaintiff was denied a needed low bunk permit, he
failed to investigate the cause of Plaintiff’s dizziness, and failed to provide care for
Plaintiff’s resulting pain; b) Defendant Nurses Vadzandt and Watson were deliberately
indifferent to Plaintiff’s reports of pain after the fall; and c) Defendant Pennock violated
Plaintiff’s Fourteenth Amendment rights based on failure to provide a low bunk permit.
The claims are stated against the Defendants in their individual capacities only. This
case proceeds solely on the claims identified in this paragraph. 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 sending each Defendant
a waiver of service. Defendants have 60 days from the date the waiver of service is sent
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 counsel has appeared for Defendants, the Court will enter a
scheduling order setting deadlines for discovery and dispositive motions.
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 day the waiver of
service 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 Opinion.
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. 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.
8. 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).
9. The Clerk is directed to enter the standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
10. The Clerk is directed to attempt service on Defendants pursuant to the
standard procedures.
11. The Clerk is directed to dismiss Defendants Wexford and Jane Doe for
failure to state a claim. See 28 U.S.C. § 1915(d)(2).
12. The Clerk is to set an internal 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.
ENTERED this 7th day of April, 2022.
s/ James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE