Black v. Tripp

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RODNEY EUGENE BLACK, #B86195, )

)

Plaintiff, )

vs. ) Case No. 20-cv-00174-SMY

)

LINDSEY, )

WEXFORD HEALTH SOURCES, INC. )

B. TRIPP, )

C/O RHODES, )

ANGELA CRAIN, )

C/O BAKER, )

AIMEE LANG, and )

ALEX D. JONES, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Rodney Eugene Black, an inmate of the Illinois Department of Corrections

(“IDOC”) currently incarcerated at Menard Correctional Center, filed this action pursuant to 42

U.S.C. § 1983 for alleged deprivations of his constitutional rights. He claims delay and denial of

medical treatment in violation of the Eighth Amendment and seeks monetary damages. (Doc. 1).1

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).

1 Plaintiff filed four exhibits after filing his Complaint. (Docs. 9, 14, 15, and 16). To the extent Docs. 9 and 16 support

claims in the Complaint, the Court will allow Plaintiff to supplement the Complaint with those exhibits. Documents

14 and 15, however, relate to matters outside the scope of the Complaint and will be stricken.

The Complaint

Plaintiff makes the following allegations in his Complaint (Doc. 1): Upon arrival at

Menard Correctional Center on April 30, 2019, Plaintiff was seen by Nurse Aimee Lange. He told

her that he had diabetes and chronic high blood pressure and was taking Metformin, Lisinopril,

HCTZ, and Toprol XL. Plaintiff was not provided any of his medications that day or in the

following days.

On May 3, 2019, Plaintiff told a correctional officer that he was experiencing severe chest

pain. He was seen an hour later by Nurse Lang who brought him half of his medication. On May

18, 2019, Sgt. Bebout took Plaintiff to healthcare for an EKG. The nurse told Plaintiff the EKG

showed a blockage and irregular heartbeat.

Plaintiff ran out of medication on May 27, 2019. He told Lt. Dilday that the nurse had not

brought his medication. Dilday told him, “if you sleep, they will skip you.” He advised Dilday

again on June 4, 2019 that he had not received his medication. Dilday contacted healthcare and

told Plaintiff that he would get his medication that day, but he did not.

Plaintiff experienced severe chest pains again on June 6, 2019 and declared a medical

emergency to the gallery officer. A few hours later, Nurse Lang came to his cell and stated

Plaintiff’s medication expired on May 27, 2019 and had been re-ordered. She stated there was a

delay because they were temporary medications and the pharmacy would be issuing his regular

medication later that day. When the cellhouse nurse passed out evening meds later that day, she

gave Plaintiff 5 medications including HCTZ, low dose aspirin, Pepcid, Colace, and Metformin in

30-day blisterpacks. At evening meds the next day, a nurse gave him the remainder of his

medication including Terazosin, Lisinopril, and Toprol XL in 30-day blisterpacks.

Plaintiff advised Nurse B. Tripp during evening medication distribution on November 26,

2019 that he was experiencing tingling and numbness in his left arm and face. She asked if he had

any other symptoms and he told her he had been feeling sluggish. She noted his cell number and

told him she would pass the information on to the appropriate staff. Plaintiff did not receive

medical attention.

Plaintiff declared a medical emergency to C/O Rhodes on December 9, 2019 because he

was experiencing tingling and numbness in his arm and face, but Rhodes took no action. Plaintiff

advised C/O Baker on December 10, 2019 that he was experiencing tingling and numbness in his

arm and face. Baker told Plaintiff that he advised Sgt. Hoskins but Plaintiff did not receive any

medical attention. After Plaintiff filed an emergency grievance with the Warden, he put in his

fourth medical slip and was finally called to sick call on December 18, 2019. He advised Nurse

Burke of his symptoms and she referred him to the prison doctor. He asked her if she had his other

sick call request slips and she replied that she did not.

The Complaint includes a list of “legal claims” in which Plaintiff makes additional

statements including the following: Angela Crain witnessed Lang’s actions and failed to correct

the misconduct. Acting Warden Jones had actual knowledge that there were deficiencies in the

medical care system at Menard HCU that created a risk of harm to Plaintiff. Wexford failed to

ensure the proper administration of medication to inmates. LPN Lindsey took Plaintiff off

Metformin in September 2019 and put him at risk of death by stroke. Defendants denied and/or

delayed medical treatment on all levels and put Plaintiff at serious risk for a heart attack and stroke.

Plaintiff was denied seeing a cardiologist after having chest pains and “blockage in heart.”

Defendants put him at serious risk of permanent damage to his heart, liver, and kidneys by taking

him off critical diabetic medication for over 90 days and delaying CPAP machine for sleep apnea.

Preliminary Dismissals

Plaintiff fails to state a claim against Angela Crain and Acting Warden Alex Jones. He

alleges that Crain witnessed Lang’s actions and failed to correct the misconduct and that Acting

Warden Jones had actual knowledge that there were deficiencies in the medical care system at

Menard HCU that created a risk of harm to him. Conclusory statements that an individual was

aware of a problem and failed to act, without any factual support or content, is insufficient to state

a claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (abstract recitations of the elements of

a cause of action or conclusory legal statements are insufficient to state a claim); Pepper v. Village

of Oak Park, 430 F.3d 806, 810 (7th Cir. 2005)(“[T]o be liable under § 1983, the individual

defendant must have caused or participated in a constitutional deprivation.”); Twombly, 550 U.S.

at 570 (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.”). Additionally, Crain and Jones cannot be held

liable based solely on their positions as administrators because the doctrine of respondeat superior

does not apply to § 1983 actions. Chavez v. Illinois State Police, 251 F.3d 612, 651 (2001).

Therefore, Crain and Jones are dismissed without prejudice.

Plaintiff also fails to state a viable claim against the defendants based on the collective

allegations that he was denied and/or delayed medical treatment on all levels putting him at serious

risk for a heart attack and stroke; that he was denied to see a cardiologist after having chest pains

and “blockage in heart;” that he was put at serious risk of permanent damage to his heart, liver,

and kidneys because he was taken off diabetic medication for over 90 days and there was a delay

of a CPAP machine for sleep apnea. Under Federal Rule of Civil Procedure 8 pleading standards,

the Complaint must include a short, plain statement of the case against each individual. An

allegation that a group of defendants violated a plaintiff’s rights fails to comply with Rule 8. As

such, any claims intended based on these collective allegations are considered dismissed as

inadequately pled under Rule 8 and the Twombly pleading standards.

Plaintiff refers to individuals in his statement of claim who are not named as defendants.

Additionally, he attached grievances and letters as exhibits in which he complains about

individuals who are not named as defendants. Claims against any individuals not identified as

defendants in the case caption are 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).

Finally, Plaintiff alleges claims against each Defendant in his or her individual and official

capacities but seeks only monetary damages in his Complaint. When a plaintiff seeks monetary

damages against a state official, he must bring the suit against them 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). A lawsuit for money damages against a defendant in his or her official

capacity is really a suit for money damages against the state and is barred by the Eleventh

Amendment. Id. Therefore, Plaintiff’s claims against Defendants in their official capacities are

dismissed without prejudice.

Claims

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

following Counts in this pro se action:

Count 1: Eighth Amendment deliberate indifference to serious medical needs

claim against Defendant Lang for delaying and/or denying Plaintiff

his prescription medication and against Wexford for failing to

ensure the proper administration of medication to inmates.

Count 2: Eighth Amendment deliberate indifference to serious medical needs

claim against Defendant Lindsey for denying Plaintiff his

prescription medication and against Wexford for failing to ensure

the proper administration of medication to inmates.

Count 3: Eighth Amendment deliberate indifference to serious medical needs

claim against Defendant Tripp for denying Plaintiff medical

treatment on November 26, 2019 for complaints of numbness and

tingling in his left arm and face.

Count 4: Eighth Amendment deliberate indifference to serious medical needs

claim against Defendant Rhodes for denying Plaintiff medical

treatment on December 9, 2019 for complaints of numbness and

tingling in his left arm and face.

Count 5: Eighth Amendment deliberate indifference to serious medical needs

claim against Defendant Baker for denying Plaintiff medical

treatment on December 10, 2019 for complaints of numbness and

tingling in his left arm and face.

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. See Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007) (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.”).

Discussion

Count 1

“[P]rison officials and medical staff violate the Eight Amendment’s prohibition on cruel

and unusual punishment when they act with deliberate indifference to a prisoner’s serious medical

needs.” Rasho v. Elyea, 856 F.3d 469, 475-76 (7th Cir. 2017). To state a deliberate indifference

claim, the plaintiff must include facts that show or suggest he suffered from an objectively serious

medical condition and the defendants acted with deliberate indifference to that condition. Id.

Plaintiff’s allegations are sufficient to proceed on a deliberate indifference claim against Defendant

Lang.

Plaintiff’s allegation that Wexford failed to ensure the proper administration of medication

to inmates fails to state a claim. Wexford cannot be held liable based on respondeat superior and

instead, may be liable only if it had a policy or practice that caused the alleged violation of a

constitutional right. Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 789 (7th Cir. 2014).

Plaintiff does not allege that Wexford maintains a policy or custom that caused Lang’s alleged

failure to provide him with his prescription medication. He seeks to hold Wexford responsible for

not properly supervising its employees, which he cannot do. Therefore, the claim against Wexford

is dismissed.

Count 2

The allegations in the Complaint are sufficient for Plaintiff to proceed on a deliberate

indifference claim against Defendant Lindsey. Again, the claim that Wexford failed to ensure the

proper administration of medication to inmates fails to state a claim and is dismissed.

Counts 3, 4, and 5

The claims in Counts 3, 4, and 5 regarding denial of medical treatment for complaints of

numbness and tingling in Plaintiff’s left arm and face involve different defendants, separate

occurrences, and different issues than the claims in Counts 1 and 2 related to his prescription

medications. Federal Rule of Civil Procedure 20 prohibits a plaintiff from asserting unrelated

claims against different defendants or sets of defendants in the same lawsuit. Multiple defendants

may not be joined in a single action unless the plaintiff asserts at least one claim to relief against

each respondent that arises out of the same transaction or occurrence or series of transactions or

occurrences and presents a question of law or fact common to all. George v. Smith, 507 F.3d 605,

607 (7th Cir. 2007). District courts have a duty to apply Rule 20 of the Federal Rules of Civil

Procedure to prevent improperly joined parties from proceeding together in the same case. Id.

Federal Rule of Civil Procedure 21 grants district courts broad discretion when deciding whether

to sever claims or to dismiss improperly joined defendants. Owens v. Hinsley, 635 F.3d 950, 952

(7th Cir. 2011). Here, the Court will exercise its discretion and sever Counts 3, 4, and 5 from this

case. See Fed. R. Civ. P. 18, 20(a)(2); George v. Smith, 507 F.3d at 607; Wheeler v. Talbot, 695

F. App’x 151 (7th Cir. 2017); Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017).

Request for Injunctive Relief

Plaintiff filed a Motion for Temporary Restraining Order and/or Preliminary Injunction

seeking an order requiring Menard Correctional Center Healthcare Unit to send him for heart

surgery. (Doc. 17). A temporary restraining order (“TRO”) can be issued without notice to the

party to be enjoined, but it may last no more than fourteen days. Fed. R. Civ. P. 65(b)(2). A TRO

may be issued only if “specific facts in an affidavit or a verified complaint clearly show that

immediate or irreparable injury, loss, or damage will result to the movant before the adverse party

can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). “To obtain a preliminary injunction, a

plaintiff must show that: (1) without this relief, [he] will suffer irreparable harm; (2) traditional

legal remedies would be inadequate; and (3) [he] has some likelihood of prevailing on the merits

of [his] claims.” Speech First, Inc. v. Killeen, 968 F.3d 628, 637 (7th Cir. 2020) (internal citation

and quotation marks omitted).

“A court issues a preliminary injunction in a lawsuit to preserve the status quo and prevent

irreparable harm until the court has an opportunity to rule on the lawsuit's merits.” Devose v.

Herrington, 42 F.3d 470, 471 (8th Cir. 1994). Thus, “a preliminary injunction is appropriate only

if it seeks relief of the same character sought in the underlying suit, and deals with a matter

presented in that underlying suit.” Daniels v. Dumsdorff, No. 19-cv-00394, 2019 WL 3322344 at

*1 (S.D. Ill. July 24, 2019) (quoting Hallows v. Madison Cty. Jail, No. 18-cv-881, 2018 WL

2118082, at *6 (S.D. Ill. May 8, 2018) (internal citations omitted)).

As an initial matter, Plaintiff has not offered an opinion of a medical professional that he

needs heart surgery nor does he allege in his motion or Complaint that any defendant in this case

has denied him heart surgery. In any event, Plaintiff’s claim that he needs heart surgery is

unrelated to the claims or the parties in this case. Although he attached exhibits to his Complaint

that show he requested to see a cardiologist but was denied, he did not include any allegations in

his statement of claim that any of the named defendants denied his request to see a cardiologist.

Because his claim for heart surgery exceeds the scope of the Complaint, it cannot provide the basis

for a TRO or a preliminary injunction in this lawsuit.2 Accordingly, the Motion for Temporary

Restraining Order or Preliminary Injunction (Doc. 17) is denied.

Disposition

IT IS HEREBY ORDERED that Counts 3, 4, and 5 are SEVERED into a new case

against B. Tripp, C/O Rhodes, and C/O Baker and they are DISMISSED and TERMINATED as

defendants in this case. The Clerk is DIRECTED to file the following documents into the newly-

severed case:

1) The Complaint (Doc. 1);

2) Motion for Leave to Proceed in forma pauperis (Doc. 2); and

3) This Memorandum and Order.

IT IS ORDERED that Count 1 will proceed against Aimee Lang and Count 2 will proceed

2 If Plaintiff wishes to pursue the unrelated claim alleged in the motion, he must do so by filing a separate

case under 28 U.S.C. § 1983. The Court states no opinion on the merits of any such claim. If he chooses to

file such claims, he is warned that any Section 1983 claims would be subject to the normal rules and

consequences attendant to Section 1983 litigation including payment of the $400 filing fee and a general

prohibition against the filing of frivolous claims. Further, Plaintiff would have to exhaust his administrative

remedies as to the claims prior to filing suit as exhaustion is a prerequisite to filing suit. Ford v. Johnson,

362 F.3d 395, 398 (7th Cir. 2004); Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir.

1999).

against Lindsey in their individual capacities but the official capacity claims against them are

DISMISSED. Angela Crain, Alex Jones, and Wexford Health Services, Inc. are DISMISSED

without prejudice and the Clerk of Court is DIRECTED to TERMINATE them as defendants.

The Clerk of Court shall prepare for Aimee Lang and Lindsey: (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 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 the Defendant, and the Court will require the 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 and 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.

IT IS ORDERED that the Complaint is supplemented with the exhibits at Documents 9

and 16 but Documents 14 and 15 are STRICKEN.

IT IS ORDERED that the Motion for Temporary Restraining Order and/or Preliminary

Injunction (Doc. 17) is DENIED.

IT IS ORDERED that the Clerk of Court is DIRECTED to ENTER the standard

qualified protective order pursuant to the Health Insurance Portability and Accountability Act.

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

under 28 U.S.C. §1915, he 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: October 13, 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 Defendants of your lawsuit and serve

them with a copy of your Complaint. After service has been achieved, Defendants will enter an

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’ Answer, but it is entirely possible that it will take 90 days

or more. When Defendants have filed their 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 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.