Dowaun v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANDREW DOWAUN, )

#R51695 )

)

Plaintiff, )

) Case No. 19-cv-775-SMY

vs. )

)

WEXFORD HEALTH SOURCES, INC., )

JOHN BALDWIN, )

JACQOLINE LASHBROOK, )

SIDDIQUI, )

MOLDENHAUER, )

ZIMMER, )

ANGELA CRAIN, )

MEARS, )

FRANK LAWRENCE, )

ROB JEFFREYS, and )

GAIL WALLS, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Andrew Dowaun, an inmate of the Illinois Department of Corrections (“IDOC”)

currently incarcerated at Menard Correctional Center (“Menard”), brings this action pursuant to

42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. Plaintiff asserts deliberate

indifference claims under the Eighth Amendment and a state law claim for intentional infliction of

emotional distress. (Doc. 1). He seeks monetary damages and injunctive relief.

This case is now before the Court for preliminary review of the Complaint under 28 U.S.C.

§ 1915A, which requires the Court to screen prisoner Complaints to filter out nonmeritorious

claims. 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally frivolous, malicious,

fails to state a claim for relief, or requests money damages from an immune defendant must be

dismissed. 28 U.S.C. § 1915A(b).

The Complaint

Plaintiff makes the following allegations in the Complaint: Menard is overcrowded and

the number of doctors and nurses on hand is inadequate to provide proper medical care for the

inmate population. (Doc. 1, p. 5). IDOC Director Baldwin, Dr. Siddiqui, (former) Menard Warden

Lashbrook, and Wexford Health Sources, Inc. (“Wexford”) have been made aware of this fact by

countless lawsuits filed by inmates. (Id.). They have the ability to fix this issue but have ignored

the situation, which has resulted in Plaintiff and other inmates suffering in pain without proper

medical care. (Id., pp. 5, 6). They were given a report from medical experts in a class action

lawsuit that shows Wexford was deliberately understaffing its health care units to save money.

(Id., p. 6). This policy has delayed and denied inmates access to medical care. (Id.). They knew

these issues existed and turned a blind eye to them. (Id., pp. 6, 12, 15).

Plaintiff suffered from a broken left hand and nerve damage in his right hand and was

treated by a nurse and nurse practitioner instead of a doctor. (Id.). The nurse and nurse practitioner

lack the medical knowledge to treat these serious medical conditions. (Id., p. 7). Because of

deliberate understaffing by Defendants, nurses are given responsibilities that exceed their medical

expertise. (Id.). Because of inadequate medical staffing, Plaintiff was denied access to medical

care and suffered in pain from an untreated broken hand. (Id.). Defendants’ intentional acts and

omissions caused extreme conditions that they knew would cause Plaintiff to suffer emotional

distress and pain. (Id., pp. 7, 8).

Wexford has a policy to deny inmates any pain medication other than ibuprofen, Mobic,

naproxen, and other over the counter medications even when those medications are ineffective at

pain management. (Id.). Wexford initiated this policy to save money. (Id., p. 10). Baldwin and

Lashbrook have ignored Wexford’s actions. (Id.). Wexford has trained its medical staff to enforce

this policy and they do so even though they know it results in inmates suffering excruciating pain.

(Id., pp. 9-10). On several occasions, Plaintiff made NP Zimmer, NP Moldenhauer, and Dr.

Siddiqui aware that he was in constant pain from injuries to his left and right hands and that the

pain medication he was given was not alleviating the pain. (Id., p. 9). Additionally, he advised

them the pain medication was causing constipation. (Id.). Defendants refused to discontinue the

medication or prescribe him a stronger pain medication. (Id.). They have ignored his complaints

of pain and know he is suffering unnecessarily. (Id., p. 10).

Plaintiff has requested proper medical care for his right-hand nerve pain but has only been

seen by NP Zimmer, NP Moldenhauer, and Dr. Siddiqui who lack the medical expertise to

determine whether he is experiencing nerve damage or nerve pain. (Id., pp. 10, 11). Plaintiff

needs to be sent to a specialist for examination and diagnostic testing. (Id., p. 11). Defendants’

refusal to address this issue is pursuant to a policy to save money by denying access to medical

care. (Id.). Plaintiff’s right-hand nerve damage and pain was not adequately assessed or treated

by Nurse Mears, NP Zimmer, Crain, Dr. Siddiqui, or NP Moldenhauer because they lacked the

medical expertise to do so. (Id., pp. 13, 14). In response to a grievance he filed, NP Zimmer, Dr.

Siddiqui, and Crane acknowledged that Plaintiff has nerve damage and that they have done nothing

about it. (Id., pp. 11, 12).

Plaintiff injured his left hand on August 10 or 11, 2018. (Id., pp. 12, 16). He notified a

gallery officer, showed the officer his swollen hand, and requested a nurse and/or crisis team. (Id.,

pp. 12, 16). He also wrote sick call requests and placed them in the sick call box. (Id.). He was

not seen by medical staff until August 15, 2018 at which time he had an appointment for his right-

hand nerve damage and pain. (Id., pp. 12, 13). He explained to NP Zimmer that his left hand was

swollen and possibly broken. (Id., p. 13). She ordered an x-ray, which was done on August 17,

2018. (Id., p. 17). Plaintiff saw NP Moldenhauer on August 30, 2018 to discuss the results of the

x-ray which showed that his hand was broken. (Id.). The delay was caused by the policies of

Wexford, which are enforced by Dr. Siddiqui, Crain, NP Zimmer, NP Moldenhauer, Nurse Mears,

Healthcare Unit Administrator Walls, and Ritz. These individuals are aware of delays in medical

care provided to Plaintiff and other inmates which results in unnecessary pain and suffering. (Id.,

p. 18). Defendants were made aware of these delays in medical care by a class action lawsuit and

from countless inmate grievances written about this problem. (Id.). Defendants have done nothing

to stop the delays. (Id., pp. 18, 19).

On August 20, 2018, NP Moldenhauer told Plaintiff that his finger was broken and needed

to be splinted. (Id., p. 19). However, NP Moldenhauer refused to splint Plaintiff’s finger because

it was not approved by security. (Id., p. 20). NP Moldenhauer allowed non-medical staff to

overrule a medical decision and denied Plaintiff necessary medical care. (Id.). Medical Director

Dr. Siddiqui and Health Care Unit Administrator Walls have a policy that allows non-medical staff

to overrule medical decisions. (Id., pp. 20, 21). Plaintiff was not seen again until September 13,

2018 when his hand was placed in a cast. (Id., p. 21). The delay of over a month from the time of

injury until medical treatment was provided caused Plaintiff unnecessary pain and suffering. (Id.).

Baldwin and Lashbrook created policies that interfere with inmates receiving proper

medical care. They have created policies that determine what medical personnel can prescribe

and/or what treatment can be provided. (Id., p. 22). As a result of these policies, Plaintiff’s finger

could not be splinted, and he was forced to suffer pain. (Id.). Baldwin and Lashbrook know that

these policies deliberately denied Plaintiff and other inmates access to adequate medical care for

serious medical needs and caused unnecessary pain. (Id.).

Based on the allegations of the Complaint, the Court finds it convenient to designate the

following Counts:

Count 1: Eighth Amendment deliberate indifference to serious medical

needs claim arising from the denial of adequate medical

treatment due to understaffing of medical providers by

Wexford, Baldwin, Lashbrook, and Siddiqui.

Count 2: Eighth Amendment deliberate indifference to serious medical

needs claim against Wexford, Zimmer, Moldenhauer, Siddiqui,

Mears, and Crain for denying Plaintiff adequate medical care

for his right-hand nerve damage and pain.

Count 3: Eighth Amendment deliberate indifference to serious medical

needs claim against Wexford, Zimmer, Moldenhauer, Siddiqui,

Mears, Crain, and Walls for delaying and/or denying Plaintiff

medical care for his left-hand injury.

Count 4: Eighth Amendment deliberate indifference to serious medical

needs claim against Baldwin and Lashbrook arising from the

denial of adequate medical treatment because of the

Menard/IDOC policy that allows nonmedical staff to interfere

with medical decisions.

Count 5: Intentional infliction of emotional distress claim arising from

the denial of adequate medical treatment due to understaffing

of medical providers by Wexford, Baldwin, Lashbrook, and

Siddiqui.

The parties and the Court will use these designations in all future pleadings and orders, unless

otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the

Complaint but not addressed in this Order should be considered dismissed without prejudice

as inadequately pled under the Twombly pleading standard.1

Discussion

The Eighth Amendment claims asserted in Counts 1, 2, 3, and 4 survive screening against

1 An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state

a claim that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

the defendants who are named above in connection with each claim. The state law claim for

intentional infliction of emotional distress in Count 5 will also proceed against the defendants

named in connection with that claim.

Plaintiff names IDOC Director Jeffreys and Acting Menard Warden Lawrence as

Defendants but they are not referenced in the statement of claims. Under Federal Rule of Civil

Procedure 8, the Complaint must include a short, plain statement of the case against each

individual. Merely naming a party in the caption of a Complaint is not enough to state a claim

against him. Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Because Plaintiff failed to allege

specific acts of wrongdoing by these individuals, the personal involvement requirement necessary

for Section 1983 liability is not met. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).

Additionally, IDOC Director Jeffreys and Warden Lawrence cannot be held liable based solely on

their positions as administrators as the doctrine of respondeat superior does not apply to section

1983 actions. Chavez v. Illinois State Police, 251 F.3d 612, 651 (2001); Sanville v. McCaughtry,

266 F.3d 724, 740 (7th Cir. 2001). However, to the extent Plaintiff seeks injunctive relief, Warden

Lawrence is a proper defendant in his official capacity. Gonzalez v. Feinerman, 663 F.3d 311,

315 (7th Cir. 2011) (proper Defendant in a claim for injunctive relief is the government official

responsible for ensuring any injunctive relief is carried out). Accordingly, IDOC Director Jeffreys

and Warden Lawrence, in his individual capacity, will be dismissed without prejudice.

Plaintiff also asserts claims against Defendants Baldwin, Lashbrook, Siddiqui,

Moldenhauer, NP Zimmer, Crain, Nurse Mears, and Walls in their individual and official

capacities. However, Plaintiff cannot proceed with claims for monetary damages against these

Defendants in their official capacities. That is because when a plaintiff seeks monetary damages

against a state official, he must bring the suit against the official only in his or her individual

capacity. Brown v. Budz, 904 F.3d 904, 918 (7th Cir. 2005); Shockley v. Jones, 823 F.2d 1068,

1070 (7th Cir. 1987). Accordingly, the official capacity claims against Defendants Baldwin,

Lashbrook, Siddiqui, Moldenhauer, NP Zimmer, Crain, Nurse Mears, and Walls will be dismissed

without prejudice.

Plaintiff makes allegations against Ritz, but he is not identified as a defendant in the case

caption. The Court will not treat individuals not listed in the caption as defendants, and any

intended claim against Ritz is dismissed without prejudice. Myles v. United States, 416 F.3d 551,

551–52 (7th Cir. 2005) (holding that to be properly considered a party, a defendant must be

specified in the caption).

Motion to Appoint Counsel

Civil litigants do not have a constitutional or statutory right to counsel. Pruitt v. Mote,

503 F.3d 647, 649 (7th Cir. 2007). Under 28 U.S.C. § 1915(e)(1), the Court has discretion to

recruit counsel to represent indigent litigants in appropriate cases. Johnson v. Doughty, 433 F.3d

1001, 1006 (7th Cir. 2006). When deciding whether to recruit counsel for an indigent litigant, the

Court must consider (1) whether the indigent plaintiff has made reasonable attempts to secure

counsel on his own, and, if so, (2) whether the difficulty of the case exceeds the plaintiff's capacity

as a layperson to coherently present it. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing

Pruitt, 503 F.3d at 654).

Plaintiff provided a list of attorneys he has written in an attempt to retain counsel, but states

he has not received any responses. The Court finds that, while responses to Plaintiff’s requests are

pending, the recruitment of counsel is premature. Moreover, given the early stage of the litigation,

it is difficult to accurately evaluate the need for assistance of counsel. See Kadamovas v. Stevens,

706 F.3d 843, 845 (7th Cir. 2013). The Motion for Appointment of Counsel (Doc. 2) is, therefore,

denied without prejudice.

Plaintiff may renew his request for the appointment of counsel at a later date. If Plaintiff

does renew his request, he should submit rejection letters from at least three attorneys to prove that

he has made reasonable efforts to obtain counsel on his own.

Disposition

IT IS HEREBY ORDERED that Count 1 will proceed against Defendants Wexford,

Baldwin, Lashbrook, and Siddiqui. Count 2 will proceed against Wexford, Zimmer, Moldenhauer,

Siddiqui, Mears, and Crain. Count 3 will proceed against Wexford, Zimmer, Moldenhauer,

Siddiqui, Mears, Crain, and Walls. Count 4 will proceed against Baldwin and Lashbrook. Count

5 will proceed against Wexford, Baldwin, Lashbrook, and Siddiqui.

IT IS ORDERED that Plaintiff’s Motion for Appointment of Counsel (Doc. 2) is

DENIED without prejudice.

IT IS FURTHER ORDERED that Jeffreys is dismissed without prejudice and the Clerk

of Court is DIRECTED to TERMINATE him as a party. Additionally, the individual capacity

claim against Lawrence and the official capacity claims against Defendants Baldwin, Lashbrook,

Siddiqui, Moldenhauer, Zimmer, Crain, Mears, and Walls are dismissed without prejudice.

Lawrence, as the Warden of Menard Correctional Center, shall remain in the case in his official

capacity as to any injunctive relief requested.

IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants

Wexford, Baldwin, Lashbrook, Siddiqui, Zimmer, Moldenhauer, Mears, Crain, Walls, and

Lawrence (official capacity only): (1) Form 5 (Notice of a Lawsuit and Request to Waive Service

of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to

mail these forms, a copy of the Complaint, and this Memorandum and Order to each Defendant’s

place of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver

of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent,

the Clerk shall take appropriate steps to effect formal service on that Defendant, and the Court will

require that Defendant to pay the full costs of formal service, to the extent authorized by the Federal

Rules of Civil Procedure.

If a Defendant cannot be found at the work address provided by Plaintiff, the employer

shall furnish the Clerk with the Defendant’s current work address, or, if not known, the

Defendant’s last-known address. This information shall be used only for sending the forms as

directed above or for formally effecting service. Any documentation of the address shall be

retained only by the Clerk. Address information shall not be maintained in the court file or

disclosed by the Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendants need only respond to the issues stated in this

Merit Review Order.

If judgment is rendered against Plaintiff, and the judgment includes the payment of costs

under Section 1915, Plaintiff will be required to pay the full amount of the costs, regardless of

whether his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).

Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of

Court and the opposing party informed of any change in his address; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later than 7 days

after a transfer or other change in address occurs. Failure to comply with this order will cause a

delay in the transmission of court documents and may result in dismissal of this action for want of

prosecution. See Fed. R. Civ. P. 41(b).

IT IS SO ORDERED.

DATED: January 15, 2020

s/ Staci M. Yandle_________

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the appropriate Defendants of your lawsuit

and serve them with a copy of your complaint. After service has been achieved, the Defendants

will enter their appearance and file an Answer to your complaint. It will likely take at least 60 days

from the date of this Order to receive the Defendants’ Answers, but it is entirely possible that it

will take 90 days or more. When all the Defendants have filed Answers, the Court will enter a

Scheduling Order containing important information on deadlines, discovery, and procedures.

Plaintiff is advised to wait until counsel has appeared for the Defendants before filing any motions,

to give the 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 specifically directed to do so.