Southard v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BENNY T. SOUTHARD, #S00819, )

)

Plaintiff, )

)

vs. ) Case No. 17-cv-00839-JPG

)

WEXFORD MEDICAL, )

)

Defendant. )

MEMORANDUM & ORDER

GILBERT, District Judge:

This matter comes before the Court for consideration of the Second Motion for Summary

Judgment on the Merits filed by Wexford Health Sources, Inc. (improperly named “Wexford

Medical”).1 (Doc. 113). For the reasons set forth below, Defendant’s Motion for Summary

Judgment is GRANTED.

PROCEDURAL HISTORY

Plaintiff Benny Southard (Inmate No. S00819) filed this civil rights action pursuant to

42 U.S.C. § 1983 for alleged violations of his Eighth Amendment rights that occurred in

connection with an attack on him by another inmate at Pinckneyville Correctional Center

(“Pinckneyville”) in July 2015 which fractured his nose. Plaintiff alleges that Wexford Health

Sources, Inc. (“Wexford”), through its “Medical Board,” denied three separate requests from

Pinckneyville medical staff for a referral to an ear, nose, and throat (“ENT”) specialist. Plaintiff

was released from prison on September 17, 2015 without receiving any referral to an outside

doctor.

1 The Clerk of Court will be directed to substitute Wexford Health Sources, Inc. in place of Wexford

Medical as the Defendant in CM/ECF.

Following his release, Plaintiff sought medical treatment on his own and underwent plastic

surgery to repair his injuries. He was then reincarcerated at Graham Correctional Center

(“Graham”) where he grieved the denial of follow-up treatment in 2017.

The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and recognized four

claims: (1) Count 1 - an Eighth Amendment claim against Wexford for deliberate indifference to

Plaintiff’s need for treatment and specialist care for his injured face and nose; (2) Count 2 – an

Eighth Amendment claim against Dr. Shaw2 for deliberate indifference to Plaintiff’s need for

treatment and specialist care for his injured face and nose; (3) Count 3 – an Eighth Amendment

claim against the Illinois Department of Corrections and Pinckneyville for deliberate indifference

to Plaintiff’s need for treatment and specialist care for his injured face and nose; and (4) Count 4

– Illinois state law claim for medical negligence against Dr. Shaw and Wexford for delaying and

denying treatment for Plaintiff’s injured face and nose. (Doc. 6). The Court allowed Plaintiff to

proceed with Count 1 against Wexford and Count 2 against Dr. Shaw. However, Count 3 against

the IDOC and Pinckneyville was dismissed with prejudice, and Count 4 against Dr. Shaw and

Wexford was dismissed without prejudice. Id.

Following discovery, Defendants Wexford and Shah filed a Motion for Partial Summary

Judgment for Failure to Exhaust Administrative Remedies. (Doc. 37). Defendants argued that

Plaintiff’s grievances expanded the scope of his claims in Counts 1 and 2 from Pinckneyville in

2015 to include his reincarceration at Graham in 2017. Id. Plaintiff responded by clarifying that

his claims stem from his incarceration at Pinckneyville in 2015. (Doc. 46). Finding no objections,

the Court granted Defendants’ Partial Summary Judgment Motion, narrowing his claims to the

Defendants’ actions in 2015. (Doc. 62). The Court then granted a Motion for Summary Judgment

2 It was later determined that “Dr. Shaw” is actually Dr. Vipin Shah. (Docs. 37, 71).

on the Merits filed by Dr. Shah, resulting in the dismissal of Count 2 with prejudice against the

doctor. (Doc. 88).

The only claim that remains in this action is the Eighth Amendment claim in Count 1

against Wexford for deliberate indifference to Plaintiff’s need for treatment and specialist care for

his injured face and nose at Pinckneyville in 2015. Wexford filed a Second Motion for Summary

Judgment on the Merits of Count 1 on March 11, 2020. (Doc. 113). Wexford relies primarily on

Plaintiff’s deposition (Doc. 114-1), Affidavit of Dr. Vipin Shah (Doc. 114-2), Plaintiff’s Medical

Records (Doc. 114-3), Affidavit of Dr. Stephen Ritz (Doc. 114-4), and the deposition of Dr.

Mailey, the surgeon who performed Plaintiff’s surgery (Doc. 114-5). Plaintiff filed a response in

opposition to the motion on May 26, 2020. (Doc. 126). He admitted that the facts of this case are

largely undisputed but argues that the facts and law still preclude summary judgment. Id.

Defendants filed a reply on June 9, 2020. (Doc. 128).

FINDINGS OF FACT

A. The Parties

Plaintiff Benny Southard is an inmate in the custody of the Illinois Department of

Corrections (“IDOC”) and was housed at Pinckneyville at all relevant times. (Doc. 114-1, p. 4).

Defendant Wexford Health Sources, Inc. is a private medical corporation responsible for

providing medical services to IDOC inmates, including inmates at Pinckneyville. (Doc. 114-4).

Dr. Vipin Shah is a medical doctor employed by Wexford at Pinckneyville at the time of Plaintiff’s

injury. (Doc. 114-2). When Plaintiff sought treatment at Pinckneyville, Wexford had in place

policies establishing a Utilization Management (“UM”) program. (Doc. 114-4, pp. 2-3; Doc. 127).

Dr. Stephen Ritz is Wexford’s Corporate Utilization Management Medical Director and held that

position at all relevant times. (Doc. 114-4). If a patient required an off-site medical consultation

or specialized on-site/off-site medical testing, the case was presented at a Wexford Collegial

Review. Collegial review conference calls between the onsite physician and a utilization

management physician occurred weekly at Pinckneyville in 2015. (Doc. 114-2, p. 2). During the

conference calls, the UM physician and site physician discussed the patient over the telephone to

arrive at an appropriate plan of care. (Docs. 114-2, 114-4). If a special service was needed and

approved, the site would schedule the appointment or otherwise arrange for delivery of the special

service. Id. If the off-site service was not approved, then an alternative treatment plan was

developed. Id. The process was memorialized in the record and placed in the inmate’s chart. Id.

If the referral request was not agreed to by the UM physician in collegial review, the referral

request was stamped “Non-Approved” and a Non-Approval/Appeal Form was faxed to the site.

Id. Non-approval could be appealed. Id.

The site Medical Director was responsible for reviewing the non-approval referral request

and, as appropriate, identifying any additional clinical findings and documentation to support the

referral request. (Docs. 114-2, 114-4). The Medical Director would then update the Non-

Approval/Appeal Form and fax it with supporting documentation to the UM Department. Id. The

original physician from the UM Department would reconsider the appeal and fax the decision back

to the site. Id. If the original non-approval was upheld, the Site Medical Director could request a

second appeal of the determination to be reviewed by a different physician other than the original

reviewer. Id. If necessary, an appeal could go to a third level of appeal involving the IDOC

Agency Medical Director, who had final decision authority for the care of all inmates. Id.

Inmates could be referred for emergency off-site medical care at any time if the Medical

Director or designee determined it was clinically necessary. (Docs. 114-2, 114-4).

B. Plaintiff’s Medical Care

On or around July 26, 2015, Plaintiff’s nose was injured when another inmate punched him

in the face during a dispute. (Doc. 114-1, pp. 6, 9). On July 27, 2015, Plaintiff sought medical

attention for the nasal injury. (Plaintiff’s Medical Records, Doc. 114-3, p. 7). He was seen by a

nurse practitioner who noted an “obvious deviation to nose” and ordered x-rays of the nasal bones.

Id. X-rays of Plaintiff’s nose were taken on the same date. (Doc. 114-3, p. 8).

On July 31, 2015, Dr. Shah submitted a Medical Special Services Referral and Report

requesting an ENT referral based on his review of the x-ray results. (Doc. 114-3, p. 26). Shah

noted a nasal fracture and breathing difficulty. Id. On August 1, 2015, Plaintiff was seen by a

nurse during a sick call visit and reported sinus pressure in his nasal cavity and headaches. Id. at

p. 11. The nurse provided allergy medication and acetaminophen to relieve sinus pressure. Id. at

pp. 11-12. On August 3, 2015, Shah completed a collegial review conference with Wexford

Utilization Management Physician Dr. Stephen Ritz regarding the ENT referral request. Id. at pp.

13, 27. Since the x-ray showed a minimal fracture and Plaintiff’s naval cavities were both open

and able to function, it was determined an ENT consultation was not medically necessary at that

time. (Doc. 114-2, p. 4; Doc. 114-4, p. 5. An Alternative Treatment Plan to monitor on site for

complications was developed. Id. Shah requested Plaintiff be placed on the MD call line for

follow up. (Doc. 114-2, p. 4; Doc. 114-3, p. 13).

On August 4, 2015, Plaintiff reported to nurse sick call related to nasal complaints and

stated that the acetaminophen “won’t help.” (Doc. 114-3, p. 15). On August 10, 2015, Shah saw

Plaintiff for a follow-up visit and objectively noted Plaintiff’s nose was deformed with slight

inclination on anterior surface with an open septum in middle, and that Plaintiff was breathing

okay. Id. at p. 16. Shah provided Plaintiff a prescription for one month of allergy medication and

one month of Afrin nasal spray to take twice per day to treat sinus pressure. Id. On that date, Shah

also completed the Medical Special Service Referral Denial or Revision form, documenting the

denial of the referral during the August 3, 2015 collegial review. Id. at p. 17.

On August 18, 2015, HCU Administrator Christine Brown entered a note in Plaintiff’s

medical records discussing Plaintiff’s nasal injury and status. (Doc. 114-3, p. 17). Brown noted

Plaintiff was reporting “I can’t breathe,” “my nose hurts,” and “my left eye is tender all the time.”

Id. Brown made a note of the nasal deformity and developed a plan to “discuss with OHS and

Wexford for possible ENT consult to be reconsidered.” Id.

On August 24, 2015, Shah submitted a second Medical Special Services Referral and

Report requesting an ENT referral to appeal the initial non-approval from August 3, 2015. (Doc.

114-3, p. 29). Shah noted the rationale for referral was that post-nasal injury, the x-ray showed an

irregularity along the tip of the nasal bone, there was gross deformity, and that at that time Plaintiff

was complaining of breathing difficulty on the side of the injury, and mild deviation of the septum.

Id. Shah submitted additional materials to Ritz to support the appeal. (Doc. 114-2, p. 6).

On August 28, 2015, Dr. Ritz and Dr. Lehman reviewed an appeal filed by Pinckneyville’s

Director of Nursing and determined the ENT consultation should remain non-approved. (Doc.

114-3, p. 30).

On August 31, 2015, Shah discussed his appeal with Dr. Ritz. Id. The request for an ENT

consultation remained non-approved because it was determined repair was cosmetic and not

medically necessary. Id. It was noted that reduction in ability to nasal breathe can be both a short-

term and long-term consequence of nasal fracture and may improve as soft tissue swelling

subsides. Id. It was determined there was no indication for surgical repair. Id. Use of nasal saline

was approved as an alternative treatment plan. Id.

On September 2, 2015, the August 31, 2015, non-approval decision was appealed to a third

level of appeal with the IDOC Agency Medical Director Dr. Shicker. (Doc. 114-2, p. 6). On that

date, Dr. Shicker overturned the denial and approved the ENT referral request. (Doc. 114-3, p.

37). On September 8, 2015, Pinckneyville staff attempted to schedule Plaintiff’s ENT referral. Id.

at p. 22.3 The appointment scheduler contacted the Orthopedic Institute of Southern Illinois, the

Center for Medical Arts, Springfield Clinic, and approximately six other doctors’ offices to attempt

to schedule Plaintiff’s appointment before his release date. Id. The offices contacted did not have

any availability prior to Plaintiff’s release date. Id. Also, on September 8, 2015, Dr. Shah saw

Plaintiff in follow up to the nasal fracture complaints and prescribed Afrin nasal spray to use twice

per day for one month, 400 mg ibuprofen to take twice per day, and antibiotic Augmentin 875 mg

to treat a potential infection. Id. at p. 21.

On September 10, 2015, the scheduler contacted additional offices in an attempt to

schedule an ENT appointment. Id. at pp. 24, 38-41. Plaintiff’s release date was set for September

17, 2015. Id. Plaintiff was released from Pinckneyville before his ENT appointment could be

completed.

Following his release, Plaintiff scheduled an appointment with a doctor regarding his nose.

(Doc. 114-1, p. 13). The doctor referred him to a plastic surgeon, Dr. Brian Mailey. Id. Dr.

Mailey developed a plan for a rib graft and transfer of cartilage to repair his nose. Id. The surgery

was conducted approximately eight or nine months after Plaintiff’s release. Id. Plaintiff alleges

he still has issues with breathing out of his right nostril because the tissue cannot get a lot of air

through it. Id. at p. 15. Plaintiff still uses Nasacort nasal spray. Id.

Dr. Mailey testified during his deposition that it would have been possible for Plaintiff’s

3 Dr. Shah explained that the attempt to schedule an ENT referral was delayed from September 3, 2015, to

September 8, 2015 because the scheduler was on vacation. (Doc. 114-2, p. 7).

nasal fracture to be corrected with a “closed reduction” (a “smaller surgery” than what Plaintiff

ultimately had) if he had been referred to an ENT or surgeon within the first 6 weeks of the injury.

(Doc. 114-5, pp. 9, 20, 22, 24-26). In his opinion, an outside referral was the appropriate next step

given Plaintiff’s symptoms of nasal deviation, continued bleeding, headaches, and sinus issues,

and that with a “severe nasal deviation … almost everyone is going to probably agree on what you

need to do which is to fix it or reduce it, so I don’t think there’s a broad difference in opinion.”

(Doc. 114-5, pp. 13-14). Dr. Mailey also noted that it is common for an insurance company to

deny authorization for specialty treatment for patients with posttraumatic nasal deformities like

Plaintiff’s for similar reasons to those stated in the collegial review/denial of his ENT referral

request. (Doc. 114-5, p. 24).

LEGAL STANDARDS

Summary judgment is appropriate only if the moving party can show “there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a); Celetex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party has the burden

of establishing that no material facts are genuinely disputed. Lawrence v. Kenosha Cty., 391 F.3d

837, 841 (7th Cir. 2004). Any doubt about the existence of a genuine issue must be resolved in

favor of the nonmoving party. Id.

When presented with a motion for summary judgment, the Court does not decide the truth

of the matters presented, and it cannot “choose between competing inferences or balance the

relative weight of conflicting evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (citations

omitted); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir 1994). Once a properly

supported motion for summary judgment is filed, the adverse party “must set forth specific facts

showing there is a genuine issue for trial.” Anderson, 477 U.S. at 250. The Court must then “view

all the evidence in the record in the light most favorable to the non-moving party and resolve all

factual disputes in favor of the non-moving party.” Hansen, 763 F.3d at 836. If the “evidence is

such that a reasonable jury could return a verdict for the nonmoving party[,]” then a genuine

dispute of material fact exists. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016).

DISCUSSION

Plaintiff’s claims are governed by the Eighth Amendment, which prohibits cruel and

unusual punishment of convicted persons. See U.S. CONST., amend. VIII. The Eighth Amendment

safeguards inmates against pain and suffering that serves no penological purpose. Roe v. Elyea,

631 F.3d 843, 857 (7th Cir. 2011) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). It obligates

prison officials to provide inmates with adequate medical care. Minix v. Canarecci, 597 F.3d 824,

830 (7th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

The Court applies a two-part analysis to Eighth Amendment claims of inadequate medical

care. Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005). First, the Court must determine

whether the plaintiff suffered from a sufficiently serious medical condition, from an objective

standpoint. Id. Second, the Court must determine whether each defendant responded with

deliberate indifference, from a subjective standpoint. Id. This analysis requires the Court to

evaluate the “totality of an inmate’s medical care.” Petties v. Carter, 836 F.3d 722, 728-29 (7th

Cir. 2016).

The parties do not dispute that Plaintiff’s nose injury satisfies the first prong of this analysis

for summary judgment purposes. The question for the Court, then, is whether the remaining

Defendant – Wexford – responded with deliberate indifference to the medical condition. An

individual defendant is deliberately indifferent when s/he knows of a serious risk to the prisoner’s

health but consciously disregards the risk. Holloway v. Delaware Cty. Sheriff, 700 F.3d 1063,

1073 (7th Cir. 2012) (citation omitted). Negligence, gross negligence, or even recklessness does

not support an Eighth Amendment claim. Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006).

The deliberate indifference standard “approaches intentional wrongdoing.” Holloway, 700 F.3d

at 1073. The Court has already determined that Dr. Shah, the only individual Defendant named in

Plaintiff’s lawsuit, was entitled to summary judgment on the deliberate indifference claim against

him. (Doc. 88).

With respect to the claim against Wexford, a private medical corporation acting under color

of state law is treated like a municipal entity. Whiting v. Wexford Health Sources, Inc., 839 F.3d

658, 664 (7th Cir. 2016). It cannot be liable under Section 1983 based on a theory of respondeat

superior (supervisory) liability. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,

694 (1978). Like a municipality, Wexford may only be held liable under Section 1983 for

constitutional violations caused by its own policy or custom. Plaintiff may establish a “policy or

custom” by pointing to: (a) an express policy that, when enforced, caused a constitutional

deprivation; (b) a widespread practice that, although not authorized by written law or express

municipal policy, is so permanent and well-settled as to amount to a custom or usage that has the

force of law; or (c) an allegation that the constitutional injury was caused by a person with final

policymaking authority. See Monell, 436 U.S. at 690-91; Glisson v. Indiana Dep't of Corr., 849

F.3d 372, 379 (7th Cir. 2017) (en banc); Shields v. Illinois Dep't of Corr., 746 F.3d 782, 786 (7th

Cir. 2014). Plaintiff must also establish that the municipality, through deliberate conduct, was the

“moving force” behind the constitutional injury. Bd. Of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397, 404 (1997).

Wexford argues that the medical professionals in their employ who turned down Dr. Shah’s

requests for an ENT referral during collegial review were not deliberately indifferent, but instead

relied on their medical judgment that such referral was not medically necessary, and their decisions

fell within the bounds of medical professionalism. (Doc. 114, pp. 12-13). Wexford further asserts

that its policies and/or practices did not cause a constitutional violation. (Doc. 114, pp. 14-18).

In response to the summary judgment motion, Plaintiff argues that a jury could find

Wexford’s collegial review decision process to be deliberately indifferent because Wexford was

aware of his serious injury, and it can be inferred from this knowledge that Plaintiff faced a

substantial risk of harm if he was not timely referred to an ENT specialist – yet the ENT referral

was denied for approximately 5 weeks (July 31- September 2, 2015). (Doc. 126, pp. 9-10).

Plaintiff’s surgeon testified that a specialist referral was medically necessary within 6 weeks of the

injury in order for him to undergo a closed reduction of the fracture. That procedure could have

avoided the need for the more extensive surgery that was later required. (Doc. 126, pp. 10-11).

Finally, Plaintiff asserts there is a factual question as to whether the standard set in Wexford’s UM

Policies and Procedures was actually met in practice by Wexford, where Wexford’s interpretation

of its policy caused it to deny Plaintiff a necessary ENT referral on 3 occasions. (Doc. 126, pp.

11-12).4

The Seventh Circuit recently ruled that Wexford’s collegial review process “is not

unconstitutional on its face,” thus more evidence is required to support a finding that the collegial

review process was the cause of an Eighth Amendment violation. Howell v. Wexford Health

Sources, Inc., 987 F.3d 647, 651 (7th Cir. 2021) (affirming judgment in favor of Wexford as a

matter of law; finding no abuse of discretion for exclusion of evidence of delays in other inmates’

4 While the Complaint (Doc. 1, p. 7) asserted that Wexford deliberately delayed making an ENT referral

because Plaintiff’s release date was imminent, no evidence has been adduced to support this claim other

than Plaintiff’s own testimony, and Plaintiff appears to have abandoned the argument. (Doc. 114, pp. 15-

20; Doc. 126).

cases where affidavits did not demonstrate similar harm arising from the collegial review process).

The court noted that it has “not adopted bright-line rules regarding the quantity, quality, or

frequency of conduct needed to prove a widespread custom or practice under Monell,” and noted

the difficulties with proof where a bureaucracy “diffuses individual responsibility and

accountability,” making it problematic to find an individual deliberately indifferent. Howell, 987

F.3d at 654-55. In some instances, a prisoner may show Monell liability based only on his/her

individual experience, but “the more common paths toward Monell liability require proof either of

an express policy that is unconstitutional or a widespread practice or custom affecting other

individuals or showing repeated deliberate indifference toward the plaintiff.” Id. at 655 (collecting

cases).

Here, Plaintiff has not put forth evidence of the existence of an unconstitutional express

policy that caused the delay in treatment, and Howell establishes that the collegial review process

itself is not an unconstitutional policy. Unlike the plaintiff in that case, Plaintiff has not attempted

to produce any evidence of a widespread custom or practice on the part of Wexford to delay or

deny other prisoners referrals to outside specialists for evaluation of injuries, under the collegial

review process or in circumstances similar to his case. Plaintiff himself was denied a referral three

times before it was approved as the result of an appeal. This track record is not sufficient to create

a genuine issue of material fact as to whether Wexford engaged in a widespread practice of such

denials. See Howell, 987 F.3d at 655-56 (citing Grieveson v. Anderson, 538 F.3d 763, 774 (7th

Cir. 2008)).

Plaintiff suggests the possibility of repeated deliberate indifference in his own case, where

Dr. Shah’s first request for an ENT referral was initially denied by Dr. Ritz on August 3, 2015

upon collegial review; his second referral request/appeal was denied on August 28, 2015, by Dr.

Ritz and Dr. Lehman; and Dr. Ritz again denied the referral during collegial review on August 31,

2015. (Doc. 114-2, pp. 5-6; Doc. 114-3, pp. 27, 29-31). The referral was only approved on

September 2, 2015, by Dr. Shicker after Dr. Shah appealed again. (Doc. 114-2, p. 6; Doc. 114-3,

p. 37). Plaintiff has not advanced a claim that Dr. Ritz and/or Dr. Lehman were deliberately

indifferent to his condition when they denied the ENT referral. Even if they were, however,

imputing deliberate indifference by one or both of these actors to Wexford would amount to

respondeat superior liability, which is not the standard under Monell. Indeed, Wexford’s UM

policy/procedure, which allows for appeals when treatment is denied on collegial review,

ultimately resulted in the approval of Plaintiff’s ENT referral. It is unfortunate that the timing of

that approval, combined with a staffing delay in seeking an appointment and the unavailability of

providers before Plaintiff’s release from custody, meant that Plaintiff did not get the ENT

appointment while he was still in prison.

Plaintiff’s argument that an ENT referral was medically necessary within the six weeks

following his injury, and that the denial of that referral fell outside the bounds of reasonable

medical judgment, does present a factual question. (Doc. 126, pp. 4-5). However, that question

does not amount to a genuine issue of material fact regarding whether Wexford engaged in a

widespread practice or custom of denying medically necessary referrals. Moreover, the Eighth

Amendment only requires “reasonable measures to meet a substantial risk of serious harm” and

does not give prisoners entitlement to “demand specific care.” Forbes v. Edgar, 112 F.3d 262,

267 (7th Cir. 1997). A difference of opinion between medical professionals concerning an

inmate’s treatment does not establish deliberate indifference. Norfleet v. Webster, 439 F.3d 392,

396 (7th Cir. 2006); Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001).

In a similar vein, Plaintiff argues that summary judgment should be denied because a

question of fact exists on whether Wexford’s actual practice of applying its policies failed to meet

its own standards set forth in those policies and procedures. (Doc. 126, pp. 11-12). Again, the

evidence before the Court is limited to whether Dr. Ritz and/or Dr. Lehman misapplied Wexford’s

policies in denying Plaintiff an ENT referral. Not only are these individuals not named as

Defendants, but a showing that they failed to meet Wexford’s standards would not amount to

evidence of a widespread practice of violating prisoners’ constitutional rights. Plaintiff therefore

fails to show that a genuine issue of material fact exists on the key question for Monell liability –

whether Wexford maintained a widespread custom or practice of denying referrals that amounted

to a corporate policy.

Finally, Wexford has shown that Dr. Ritz, who denied Plaintiff’s ENT referral, does not

qualify as a “person with final policymaking authority” whose actions would bind Wexford under

Monell. The facts demonstrate that Dr. Ritz (and Dr. Lehman) did not make the final decision on

the referral, and their denials were ultimately overruled by Dr. Schicker. (Doc. 114, p. 18).

Plaintiff has not set forth any evidence to the contrary, and has not shown that a Wexford policy,

custom, or widespread practice was a “moving force” behind the alleged deliberate indifference.

To summarize, the evidence presented to date regarding Wexford’s alleged deliberate

indifference is not sufficient under the Monell standard to allow a reasonable jury to return a verdict

for Plaintiff. Accordingly, the Court finds that Defendant Wexford is entitled to summary

judgment on the merits.

DISPOSITION

IT IS HEREBY ORDERED that Defendant’s Second Motion for Summary Judgment on

the Merits (Doc. 113) is GRANTED.

The Clerk is DIRECTED to substitute the correct name of Defendant, “Wexford Health

Sources, Inc.,” to replace the incorrect designation of “Wexford Medical” in CM/ECF.

COUNT 1 against WEXFORD HEALTH SERVICES, INC., and this entire action are

DISMISSED with prejudice. Any other pending motions are DENIED as MOOT.

The Clerk is DIRECTED to enter judgment accordingly.

IT IS SO ORDERED.

DATED: 3/18/2021 s/J. Phil Gilbert

J. PHIL GILBERT

United States District Judge