Wilson v. Wexford Health Sources Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARREN WILSON, #N95724, )

)

Plaintiff, )

)

vs. ) Case No. 20-cv-394-SPM

)

WEXFORD HEALTH SOURCES, INC., )

ILLINOIS DEPT. of CORRECTIONS, )

DR. P. MYERS, )

and DR. STEPHEN RITZ, )

)

Defendants. )

MEMORANDUM and ORDER

McGLYNN, District Judge:

Plaintiff Darren Wilson, an inmate of the Illinois Department of Corrections (“IDOC”) who

is currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”), brings this pro se

civil rights action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.

Plaintiff alleges Defendants were deliberately indifferent to his need for treatment of a painful

shoulder condition. He seeks injunctive relief and monetary damages. (Doc. 1, p. 10).

This case is now before the Court for a preliminary merits 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 (Doc. 1): He has a “chronic pec

major tear and rotator cuff tearing” in his left shoulder. (Doc. 1, pp. 5, 12-14). On August 22, 2018,

Plaintiff was sent to an outside orthopedic surgeon who gave him a pain injection and

recommended supervised physical therapy. The surgeon noted that if Plaintiff failed to improve in

several months an MRI scan could be considered. (Doc. 1, p. 5). Back at the prison, Dr. Myers

ordered physical therapy, which Plaintiff did daily from August to November 2018. At that point

the injected medicine had worn off and Plaintiff could not do the physical therapy exercises or

perform tasks like taking off or putting on a shirt without considerable pain. (Doc. 1, pp. 5-7).

Plaintiff asked Dr. Myers for another pain injection, but he and Dr. Ritz denied that

treatment on November 28, 2018. (Doc. 1, pp. 6, 19). They sought the physical therapist’s opinion

on what therapy Plaintiff could do without the pain injection. Myers and Ritz forced Plaintiff to

continue the physical therapy in December 2018 and January 2019 (for 12 more weeks) without

that pain relief. (Doc. 1, pp. 6-7, 9). The physical therapist recommended Plaintiff be sent back to

the orthopedic surgeon as he had not improved and had poor potential for improvement because

of his pain. (Doc. 1, pp. 7, 18).

In September 2019, Dr. Myers noted Plaintiff had a possible rotator cuff tear, but still

refused to send him for an MRI and follow-up with the surgeon. (Doc. 1, p. 8). In February 2020

Myers ordered an x-ray but a provider had previously noted an MRI would be needed to evaluate

for a rotator cuff tear because of the condition of Plaintiff’s humerus. (Doc. 1, pp. 8, 24-25).

Plaintiff continues to suffer shoulder pain.

Plaintiff alleges that Wexford Health Sources, Inc. (“Wexford”) and the IDOC have

policies to provide inmates with medical care, but Wexford is trying to save money by denying

him treatment. (Doc. 1, pp. 8-9).

Discussion

Based on the allegations in the Complaint, the Court designates the following claims in

this pro se action:

Count 1: Eighth Amendment deliberate indifference to serious medical needs

claims against Myers and Ritz for denying Plaintiff pain relief,

follow-up treatment, and diagnostic testing as recommended by his

orthopedic surgeon for his shoulder condition.

Count 2: Eighth Amendment deliberate indifference to serious medical needs

claim against Wexford for causing his requests for medical

treatment of his shoulder to be denied under its money-saving

policy.

Count 3: Eighth Amendment deliberate indifference to serious medical needs

claim against the IDOC based on other Defendants’ denial of

medical care for his shoulder.

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

Count 1

Prison medical providers violate the Eight Amendment’s prohibition against cruel and

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

needs. See Rasho v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state such a claim, a prisoner

must plead facts and allegations suggesting that (1) he suffered from an objectively serious medical

condition, and (2) the defendant was deliberately indifferent to his condition. Id. See also Farmer

v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976). “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. Delaying treatment may

constitute deliberate indifference if such delay exacerbated the injury or unnecessarily prolonged

1 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.”).

an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and

quotations omitted). An Eighth Amendment claim may be stated where a prison doctor persists in

a course of treatment known to be ineffective, fails to order further testing or refuses to refer the

inmate to a specialist. Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (doctor continued

ineffective treatment and refused to order endoscopy or specialist referral over a two-year period

during which plaintiff suffered from ulcer).

Here, Plaintiff alleges that Dr. Myers and Dr. Ritz were aware of his shoulder condition

and the pain it caused, yet refused to approve the injection which had previously relieved the pain,

failed to provide other adequate pain relief, and failed to send him for the follow-up testing

suggested by the surgeon and physical therapist. At this early stage, Plaintiff’s Eighth Amendment

deliberate indifference claims against Myers and Ritz are not subject to dismissal, thus Count 1

shall proceed for further consideration.

Further, to the extent that Plaintiff seeks injunctive relief, the Court ADDS Jeff Dennison

(Pinckneyville Warden), in his official capacity only, for the purpose of implementing any relief

awarded. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011).

Count 2

Defendant Wexford is a corporation that employs Defendants Myers and Ritz and provides

medical care at the prison, but it cannot be held liable solely on that basis. A corporation can be

held liable for deliberate indifference only if it had a policy or practice that caused the alleged

violation of a constitutional right. Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927

(7th Cir. 2004). See also Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002)

(private corporation is treated as though it were a municipal entity in a § 1983 action). Plaintiff has

alleged that the denial of his request for an MRI and follow-up consultation with the orthopedic

surgeon was a result of Wexford’s official policy to save money by denying medical care to

inmates. Therefore, Plaintiff’s claim against Defendant Wexford will not be dismissed at this stage.

Count 3

Plaintiff fails to state a cognizable claim against the IDOC. He alleges only that the “IDOC

ha[s] a policy to provide medical care to all inmates in the Department of Correction.” (Doc. 1, p.

9). He does not assert that he was denied medical care because of any policy promulgated by the

IDOC. Even if he had, he cannot obtain money damages against a state governmental entity such

as the IDOC. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“Neither a State nor

its officials acting in their official capacities are ‘persons’ under § 1983.”). See also Wynn v.

Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against states in

federal court for money damages). Further, the IDOC cannot be held liable under a theory of

supervisory liability, because this doctrine is not applicable in a civil rights action. Sanville v.

McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (the doctrine of respondeat superior does not

apply to § 1983 actions). Accordingly, Count 3 and the IDOC shall be dismissed from this action.

Request for Preliminary Injunction

Plaintiff asks the Court to issue a preliminary and permanent injunction ordering

Defendants to provide him with specific medical care. (Doc. 1, p. 10). However, he has not filed a

separate motion for a preliminary injunction or set forth the reasons he is entitled to immediate

relief under Rule 65(a) of the Federal Rules of Civil Procedure.

To obtain preliminary injunctive relief, a plaintiff must establish that (1) his underlying

case has a reasonable likelihood of success on the merits, (2) no adequate remedy at law exists,

and (3) he will suffer irreparable harm without the injunction. Turnell v. CentiMark Corp., 796

F.3d 656, 661 (7th Cir. 2015). If a plaintiff establishes these three elements, the Court must then

balance the harm to each party and to the public interest from granting or denying the injunction.

Id. at 662. Mandatory preliminary injunctions – those requiring an affirmative act – are “cautiously

viewed and sparingly issued,” because they require the court to command a defendant to take a

particular action. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997) (citing Jordan

v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)).

Plaintiff’s Complaint does not meet the three basic elements which must be established

before the Court will consider whether to grant preliminary injunctive relief. Accordingly, his

request for a preliminary injunction is DENIED at this time without prejudice. If Plaintiff wishes

to formally request a preliminary injunction while this action is pending, he must file a separate

motion and brief pursuant to Rule 65. In the motion and supporting brief, he should specifically

indicate the interim relief he seeks and the grounds that support his request for relief.

Disposition

IT IS HEREBY ORDERED that portions of the Complaint (Doc. 1) survive preliminary

review pursuant to 28 U.S.C. § 1915A and shall proceed as follows: COUNT 1 shall proceed

against P. Myers and Stephen Ritz. COUNT 2 proceeds against Wexford Health Sources, Inc. The

Clerk is DIRECTED to add Jeff Dennison (Pinckneyville Warden) to the docket, in his official

capacity only, for the purpose of implementing any injunctive relief awarded.

IT IS FURTHER ORDERED that COUNT 3 is DISMISSED from the action without

prejudice. Defendant Illinois Department of Corrections is DISMISSED from the action without

prejudice and the Clerk of Court is DIRECTED to TERMINATE this party from the case.

The Clerk of Court shall prepare for Defendants WEXFORD HEALTH SOURCES,

INC., P. MYERS, STEPHEN RITZ, and JEFF DENNISON (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 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.

Plaintiff is ADVISED that if judgment is rendered against him 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, even though his application to proceed in forma pauperis was granted. See 28 U.S.C.

§ 1915(f)(2)(A).

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

Court and the opposing parties 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).

Finally, based on the allegations in the Complaint, the Clerk of Court is DIRECTED to

ENTER the standard qualified protective order pursuant to the Health Insurance Portability and

Accountability Act.

IT IS SO ORDERED.

DATED: December 23, 2020

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

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.