The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SEAN WHEELER, )
Plaintiff, )
)
vs. ) Case No. 22-3259
)
Dr. THOMAS BAKER and )
WEXFORD HEALTH SOURCES, )
Defendants )
MERIT REVIEW ORDER
JAMES E. SHADID, U.S. District Judge:
This cause is before the Court for merit review of the Plaintiff’s complaint. The
Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s 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 has identified two Defendants: Dr. Thomas Baker and Wexford Health
Sources. Plaintiff says on August 11, 2022, he fell when a piece of asphalt on the
walkway at Jacksonville Correctional Center gave way as he was walking. Plaintiff says
he received several injuries including a “dislocated and fractured left hand pinky finger,
fractured right tooth, sprained ankle right leg, and injured right knee.” (Comp., p. 5).
Plaintiff was taken to an orthopedic surgeon at an outside hospital on the same
day. Plaintiff was given a metal finger brace to hold his finger in the correct position.
However, when he returned to Jacksonville, Plaintiff was told he could not have a metal
brace.
Defendant Dr. Baker and Nurse Lisa discussed options with the Plaintiff and
Nurse Lisa make a “makeshift case with brown tape and wooden tongue dispenser and
white tape.” (Comp., p. 5). Plaintiff said he thought the nurse should review an x-ray to
make sure his finger was set in the correct position, but the nurse told him he was fine.
Plaintiff saw Defendant Dr. Baker again on August 24, 2022, and his finger was
healing incorrectly due to the improper brace. The Doctor ordered the nursing staff to
rewrap Plaintiff’s finger, but a nurse told Plaintiff she “was not doing that!” (Comp., p.
6). Plaintiff was sent back to his housing unit.
Plaintiff says he expected medical staff to call him back, but when he heard
nothing, he requested sick call. When he still heard nothing, he submitted another
request and was seen August 30, 2022. On this day, Nurse Hayes tried to rewrap his
finger without any information about his injury. While not clearly stated, it appears
Plaintiff’s finger never healed correctly.
Plaintiff also states he suffers from diabetes and was prescribed specific shoes for
his condition at another correctional center. However, Defendant Dr. Baker has refused
to provide needed shoes and there are none available in the commissary. Plaintiff
claims as a result, he suffers from painful callouses and Dr. Baker refuses to provide
medical care.
Plaintiff has alleged Defendant Dr. Baker was deliberately indifferent to his
serious medical condition when he refused or delayed providing a proper brace for
Plaintiff’s finger. Based on Plaintiff’s allegations, he has also alleged nursing staff
refused or delayed a proper brace or refused to follow the doctor’s orders. Therefore,
the Court will add Nurse Lisa, Nurse Hayes, and Nurse Jane Doe who saw Plaintiff on
August 24, 2022. If Plaintiff does not wish to purse a claim against any of the nurses, he
should state so in writing within 14 days of this order.
Plaintiff also claims Defendant Dr. Baker was deliberately indifferent to his
diabetes when he refused to provide needed shoes.
Plaintiff has failed to articulate a claim against Wexford Health Sources.
Wexford cannot be held liable under 42 U.S.C. §1983 based only on the actions of its
employees. Shields v. Ill. Dep't. of Corr., 746 F.3d 782, 789 (7th Cir. 2014). Instead, a
plaintiff can allege Wexford was responsible with “evidence that his injury was caused
by a Wexford policy, custom, or practice of deliberate indifference to medical needs, or
a series of bad acts that together raise the inference of such a policy.” Id. at 796. Plaintiff
has not met this requirement and the Court will dismiss Defendant Wexford.
Plaintiff has also filed a Motion for Appointment of Counsel. [4]. Plaintiff has no
constitutional right to the appointment of counsel. In addition, the Court cannot
require an attorney to accept pro bono appointment in a civil case. The most the Court
can do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071
(7th Cir. 1992).
In considering Plaintiff’s motion, the Court must ask two questions: “(1) has the
indigent plaintiff made a reasonable attempt to obtain counsel or been effectively
precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007),
citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). In this case, Plaintiff has not
demonstrated any attempt to find counsel on his own such as a list of attorneys
contacted, or copies of letters sent or received. This is a mandatory, threshold inquiry
that must be determined before moving to the second inquiry.” Eagan v. Dempsey, 2021
WL 456002, at *8 (7th Cir. 2021); citing Davis v. Moroney, 857 F.3d 748, 753 (7th Cir. 2017).
Therefore, Plaintiff’s motion is denied.[4].
The Court notes once the Defendants are served and identified, a Scheduling
Order will be entered with information to assist a pro se litigant.
Finally, Plaintiff is advised he must not send letters to the Court. Instead, he may
file a motion asking for specific relief, or he may file a response to a court order or
motion filed by a defendant.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges: a) Defendant Dr. Baker, Nurse Lisa, Nurse
Hayes, and Nurse Jane Doe who saw Plaintiff on August 24, 2022 were
deliberately indifferent to Plaintiff’s finger injury when they refused or delayed
an appropriate brace for Plaintiff’s finger, and b) Defendant Baker was
deliberately indifferent to Plaintiff’s diabetes when he refused to provide needed
shoes. The claims are stated against the Defendants in their individual capacities
only. 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) Dismiss Defendant Wexford for failure to state a claim upon which relief
can be granted pursuant to by 28 U.S.C. §1915A; 2) Add Defendants Nurse
Lisa, Nurse Hayes, and Nurse Jane Doe; 3) Deny Plaintiff’s motion for
appointment of counsel with leave to renew, [4]; 4) Attempt service on
Defendants pursuant to the standard procedures; 5) 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 6) Enter the Court's
standard qualified protective order pursuant to the Health Insurance
Portability and Accountability Act.
Entered this 29th day of March, 2023.
s/James E. Shadid
_________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE