Perez v. Lawrence

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JESSE R. PEREZ, #R44289, )

)

Plaintiff, )

vs. ) Case No. 3:20-cv-00728-SMY

)

FRANK LAWRENCE, )

DR. RITZ, DR. SIDDIQUI, )

NURSE ZIMMER, NURSE LOCKE, )

A. CRAIN, )

JANE DOE #1 (Nurse), )

WEXFORD, )

JOHN DOES #1 and #2 (C/O’s), )

COUNSELOR MEYER, )

COUNSELOR CARTER, and )

ANTHONY WILLS, WARDEN OF )

MENARD CORRECTIONAL CENTER, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Jesse R. Perez, an inmate of the Illinois Department of Corrections currently

incarcerated at Menard Correctional Center (“Menard”), filed the instant lawsuit pursuant to 42

U.S.C. § 1983 for alleged deprivations of his constitutional rights. He asserts violations of the

Eighth and Fourteenth Amendments for Defendants’ deliberate indifference to his medical

conditions and 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 his Complaint (Doc. 1): Around 2:00 a.m. on

June 25, 2019, Plaintiff woke up to a sharp pain on the right side of his abdomen. (Doc. 1, p. 5).

He asked C/O John Doe #1 to summon medical help. Soon after, Plaintiff told Nurse Jane Doe #1

about his severe pain and repeated vomiting. Nurse Jane Doe #1 told Plaintiff she would give him

pepto-bismol since he had no problems with defecation.

When C/O John Doe #2 brought the pepto-bismol, Plaintiff asked to see another medical

provider due to the severity of his pain, but John Doe #2 ignored the request. Id. Plaintiff then

asked John Doe #1 to summon a med tech, doctor, or someone who could send him to the hospital

because the pepto-bismol had not helped. John Doe #1 responded that nobody was available but

the nurse and if Plaintiff had something serious like appendicitis, he would not be able to talk and

move around as he was and would be urinating blood. John Doe #1 then left the gallery. (Doc. 1,

p. 6).

Later the same day, another officer (Cornstubble, who is not a Defendant) took Plaintiff

for a sick call visit where he was seen by Nurse Practitioner Zimmer. She scheduled Plaintiff to

have an x-ray the following day. (Doc. 1, p. 7). Plaintiff continued to have severe stomach pain

and vomiting. He had the x-ray and a few hours later noticed that a lump had developed in his

right testicle.

Plaintiff saw Nurse Locke1 and told her he needed to go to the hospital, but she refused

because his x-rays were not back. Locke collected a urine sample from Plaintiff that evening

which was reddish in color. Plaintiff told her again about his severe pain, vomiting, loss of

appetite, and lump in his testicle, but Locke did nothing else. (Doc. 1, p. 9).

1 The date of this encounter with Nurse Locke is unclear; Plaintiff states it was on March 22, 2019, but that

is clearly an error. (Doc. 1, p. 8).

On June 28, 2019, Plaintiff reported to the C/O that his symptoms were continuing and his

stomach had become extremely bloated and tender to the touch. The C/O took him to see Zimmer,

who said she would send Plaintiff to the hospital. (Doc. 1, pp. 9-10).

Plaintiff was transported by ambulance to Chester Memorial Hospital (“Chester”) where

doctors determined that his appendix had ruptured and he had an infection. Id. After his

emergency appendectomy, the surgeon informed Plaintiff that the infection had spread to his

kidneys, lungs, stomach, and right testicle. (Doc. 1, p. 11). Plaintiff was then transferred to

Missouri Baptist Hospital because the necessary surgery on his testicle/scrotum could not be done

at Chester. He returned to Menard on July 17, 2019.

In September 2019, Plaintiff inquired of the surgeon at Chester about the plan for more

surgery to move his right testicle back into place in his scrotum.2 The Chester surgeon told

Plaintiff he would have to ask the Missouri Baptist Hospital surgeon who had performed his

scrotum surgery. (Doc. 1, p. 12). When Plaintiff had a follow-up with that surgeon, he stated there

were no plans for further surgery and Plaintiff would have to see a plastic surgeon about the issue.

Id. At Menard, Dr. Siddiqui indicated he would inquire about the testicle surgery.

In November 2019, Plaintiff again developed stomach pain, as well as frequent defecation

and discomfort (tightening and squeezing) in his right testicle. (Doc. 1, p. 13). Dr. Siddiqui issued

prescriptions and adjusted Plaintiff’s medications in an effort to remedy the stomach and bowel

problems. (Doc. 1, pp. 14-15). Dr. Siddiqui told Plaintiff he would not have any further surgery

to restore his testicle placement because the surgeon indicated it was not needed. (Doc. 1, p. 14).

When Plaintiff informed Dr. Siddiqui of his ongoing discomfort with his right testicle, he ignored

2 Plaintiff’s attached grievances state that the surgery performed at Missouri Baptist Hospital involved

moving his right testicle from his scrotum into a “pouch” created in his right thigh in order to treat the

infection. (Doc. 1, pp. 22-23, 27).

the problem. (Doc. 1, pp. 14-15).

Plaintiff filed grievances over the June 2019 delay in medical care and the denial of further

surgery for his testicle/scrotum. Counselor Meyer and Counselor Carter handled the grievances

which were denied and/or found untimely. (Doc. 1, pp. 12-13).

Warden Lawrence and John Doe C/Os #1 and #2 were aware of Plaintiff’s pain and the

fact he was not receiving adequate medical treatment for his appendicitis but were deliberately

indifferent. (Doc. 1, pp. 15-16). Likewise, medical provider defendants Crain, Dr. Ritz, Dr.

Siddiqui, Zimmer, Locke, and Nurse Jane Doe #1 were aware of his appendicitis, stomach pain,

and scrotum problems but failed to provide him with adequate and timely medical treatment. (Doc.

1, p. 16-17).

Defendant Wexford maintains a “policy and/or widespread practice that requires health

care providers at [Menard] to deny necessary medical care and treatment in an effort to cut costs”

and a practice of understaffing that causes delays in treatment. (Doc. 1, p. 17). Plaintiff seeks

monetary damages and an order requiring the IDOC to complete his scrotum surgery to relocate

his right testicle back to its normal location. Id.

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

claim against John Doe C/O #1 and John Doe C/O #2 for delaying

necessary medical care for Plaintiff’s ruptured appendix in June

2019; the delay led to complications including widespread infection.

Count 2: Eighth Amendment deliberate indifference claim against Crain,

Ritz, Siddiqui, Zimmer, Locke, and Nurse Jane Doe #1, for delaying

necessary medical care for Plaintiff’s ruptured appendix in June

2019; the delay led to complications including widespread infection.

Count 3: Eighth Amendment deliberate indifference claim against Crain,

Ritz, Siddiqui, Zimmer, Locke, and Nurse Jane Doe #1, for denying

corrective surgery for Plaintiff’s testicle.

Count 4: Eighth Amendment deliberate indifference to serious medical needs

claim against Lawrence for delaying necessary medical care for

Plaintiff’s ruptured appendix and denying corrective surgery for

Plaintiff’s testicle.

Count 5: Eighth Amendment deliberate indifference claim against Siddiqui

for failing to adequately treat Plaintiff’s testicular and abdominal

symptoms in November-December 2019.

Count 6: Fourteenth Amendment due process claim against Lawrence, John

Doe C/O #1, John Doe C/O #2, Crain, Ritz, Siddiqui, Zimmer,

Locke, and Nurse Jane Doe #1, for delaying and/or denying Plaintiff

necessary medical care as described in Counts 1, 2, 3, 4, and 5.

Count 7: Eighth Amendment deliberate indifference to serious medical needs

claim against Wexford for maintaining a policy/practice that

requires Menard health care providers to deny necessary medical

treatment to cut costs, and for maintaining a policy/practice of

understaffing medical providers at Menard, which caused delays

and denial of care for Plaintiff’s ruptured appendix and follow-up

corrective surgery for Plaintiff’s testicle.

Count 8: Fourteenth Amendment due process claim against Meyer and Carter

for denying Plaintiff’s grievances complaining of the denial and/or

delays in his medical care.

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

Prison officials violate the Eighth Amendment’s prohibition against 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 (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 acted with deliberate indifference to his medical needs. Id. “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

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

quotations omitted).

Plaintiff’s allegations are sufficient for the deliberate indifference claim in Count 1 to

proceed against John Doe C/O #1 and John Doe C/O #2.

Count 2

Based on the allegations regarding the response or lack of response to Plaintiff’s requests

for medical attention for his severe abdominal pain and other symptoms June 25-28, 2019, the

deliberate indifference claim against Nurse Jane Doe #1, Locke, and Zimmer in Count 2 will be

allowed to proceed. However, the claims in Count 2 against the remaining defendants will be

dismissed. Plaintiff does not set forth any facts suggesting that Crain, Dr. Ritz, or Dr. Siddiqui

had knowledge of Plaintiff’s abdominal pain and other symptoms between the time the symptoms

first appeared and his transfer to the hospital on June 28, 2019. Likewise, the allegations do not

indicate that Crain, Ritz, or Siddiqui were involved in making decisions that delayed Plaintiff’s

medical care for his ruptured appendix.

Count 3

Plaintiff’s factual allegations are not entirely clear with respect to which Defendants made

the decision to deny follow-up surgery to correct the placement of his testicle. He describes Dr.

Ritz as the “gatekeeper” doctor employed by Wexford and Dr. Siddiqui as the “medical director”

at Menard, also employed by Wexford. (Doc. 1, p. 2). Based on these descriptions and Dr.

Siddiqui’s alleged inquiry regarding the surgery, subsequent statement to Plaintiff that the testicle

surgery was not needed, and knowledge of Plaintiff’s ongoing discomfort related to his testicle,

Count 3 will proceed against Drs. Siddiqui and Ritz.

The Complaint contains no factual allegations suggesting that Crain,3 Zimmer, Locke, or

Nurse Jane Doe #1 played any role in the decision to deny Plaintiff’s follow-up surgery. As such,

the claim in Count 3 is dismissed without prejudice as to Crain, Zimmer, Locke, and Nurse Jane

Doe #1.

Count 4

Defendant Lawrence was the Warden of Menard during the time Plaintiff’s claims arose.

However, the Complaint contains no factual allegations suggesting that Lawrence was aware of

Plaintiff’s symptoms in June 2019. Likewise, there are no allegations suggesting Lawrence’s

knowledge of or involvement in the decision to deny the follow-up surgery to relocate his testicle.

Lawrence cannot be held liable merely because he may have been the supervisor of other

Defendants who allegedly committed constitutional violations. See Sanville v. McCaughtry, 266

F.3d 724, 740 (7th Cir. 2001) (no supervisory liability in § 1983 actions). Accordingly, the

deliberate indifference claim against Lawrence will be dismissed without prejudice.

Count 5

Plaintiff alleges that Dr. Siddiqui gave him medications, but his stomach/bowel symptoms

were not relieved and became worse. He also alleges that Dr. Siddiqui failed to address his

3 Crain’s signature appears on a January 10, 2020, summary of Plaintiff’s medical record that was prepared

to respond to his grievance, but that document does not indicate that Crain made any decisions regarding

his care. (Doc. 1, pp. 41-42; 44-45).

recurring sensations of tightening, stretching, and squeezing of his right testicle every time he bent

the area. (Doc. 1, pp. 14-15). Ineffective treatment, such as the medication Siddiqui prescribed to

address Plaintiff’s stomach and bowel issues, does not amount to deliberate indifference.

Therefore, Plaintiff states no claim for this portion of Count 5 and it will be dismissed without

prejudice. See Duckworth v. Ahmad, 532 F.3d 675, 680 (7th Cir. 2008).

However, Plaintiff also claims Dr. Siddiqui took no steps to relieve his ongoing testicular

discomfort after the surgery was denied. This alleged failure to act may amount to deliberate

indifference if Dr. Siddiqui knowingly disregarded a condition that involved chronic and

substantial pain. See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). On that basis,

Count 5 will proceed against Dr. Siddiqui for deliberate indifference to Plaintiff’s testicle condition

only.

Count 6

Plaintiff invokes the Eighth and Fourteenth Amendments as the bases for his claims

regarding the delay and denial of medical treatment. (Doc. 1, pp. 16-17). However, he does not

articulate any grounds for a distinct Fourteenth Amendment claim. Accordingly, Count 6 will be

dismissed without prejudice as duplicative of the Eighth Amendment deliberate indifference

claims set forth in Counts 1-5. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (dismissing

equal protection and Eighth Amendment claims based on same circumstances as free exercise

claim because free exercise claim “gains nothing by attracting additional constitutional labels”).

Count 7

Plaintiff states a colorable deliberate indifference claim against Wexford (Wexford Health

Sources, Inc.) based on its alleged policies/practices to deny treatment based on cost and to delay

care by understaffing at Menard. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917,

927 (7th Cir. 2004); 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 alleges

that his care was delayed, and that Drs. Ritz and Siddiqui denied his follow-up surgery based on

these official policies espoused by Wexford. Therefore, the claim against Wexford in Count 7 will

proceed.

Count 8

The alleged mishandling of grievances “by persons who otherwise did not cause or

participate in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th

Cir. 2011). Thus, Plaintiff’s claims against Meyer and Carter, who handled the grievances Plaintiff

filed to complain about other Defendants’ delay or denial of medical care, do not amount to

constitutional violations. Accordingly, Count 8 will be dismissed with prejudice.

Official Capacity Claims

Plaintiff sues the individual Defendants in both their individual and official capacities.

However, Plaintiff’s claims for monetary damages may only be pursued against state officials in

their individual capacities. 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 the

individual Defendants who remain in the action are dismissed without prejudice.

Injunctive Relief

Because the Complaint includes a request for injunctive relief, Anthony Wills, Warden of

Menard Correctional Center, in his official capacity, will be added as a Defendant. See Gonzales

v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (holding warden is proper defendant for injunctive

relief claim as he would be responsible for ensuring that any injunctive relief would be carried

out).

John/Jane Doe Defendants

Plaintiff is responsible for conducting discovery (informal or formal) aimed at identifying

the Doe Defendants. Anthony Wills, Warden of Menard Correctional Center, in his official

capacity, is the proper defendant for purposes of responding to discovery aimed at identifying the

unknown defendants. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir.

2009); Fed. R. Civ. P. 21. Guidelines for discovery will be set by the undersigned judge. Once the

names of the unknown defendants are discovered, Plaintiff shall file a motion to substitute the

newly identified defendants in place of the generic designations in the case caption and throughout

the Complaint.

Disposition

Portions of the Complaint survive preliminary review pursuant to 28 U.S.C. § 1915A and

shall proceed as follows: COUNT 1 will proceed against John Doe C/O #1 and John Doe C/O

#2; COUNT 2 will proceed against Nurse Jane Doe #1, Locke, and Zimmer; COUNT 3 will

proceed against Ritz and Siddiqui; COUNT 5 will proceed against Siddiqui on Plaintiff’s

testicular symptoms only; and COUNT 7 will proceed against Wexford.

The Clerk of Court is DIRECTED to ADD ANTHONY WILLS, WARDEN OF

MENARD CORRECTIONAL CENTER (official capacity only) to the docket for purposes of

Plaintiff’s request for injunctive relief and for purposes of responding to discovery aimed at

identifying the Doe Defendants.

The following claims and Defendants are dismissed: COUNTS 4 and 6 are DISMISSED

without prejudice; COUNT 8 is DISMISSED with prejudice; and DEFENDANTS

LAWRENCE, CRAIN, MEYER, and CARTER are DISMISSED without prejudice and the

Clerk of Court is DIRECTED to TERMINATE them from this action.

The Clerk shall prepare for RITZ, SIDDIQUI, ZIMMER, LOCKE, WEXFORD, and

WARDEN OF MENARD CORRECTION CENTER (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.

Service shall not be made on the Doe Defendants until such time as Plaintiff has identified

them by name in a properly filed motion for substitution of party. Plaintiff is ADVISED that it is

his responsibility to provide the Court with the name and service address for these individuals.

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: January 26, 2021

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.