Suane v. Shah

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

REMY SUANE,

#B52215,

Plaintiff, Case No. 21-cv-00213-SPM

v.

DR. SHAH,

WEXFORD HEALTH,

DR. BROOKHART,

LAURIE CUNNINGHAM,

MRS. BROOKS,

ROB JEFFREYS,

ANDREA HOLSCHER,

DR. DEANA BROOKHART,1 and

JOHN M. FROEHLICH,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Remy Suane, an inmate of the Illinois Department of Corrections who is currently

incarcerated at Lawrence Correctional Center (“Lawrence”), brings this civil action pursuant to 42

U.S.C. § 1983 for violations of his constitutional rights. Suane claims that he is not receiving

adequate medical care, specifically treatment for chronic pain. He requests monetary and

injunctive relief. On June 24, 2021, Suane filed a Motion for Emergency Injunctive Relief. (Doc.

17). Before addressing the request for preliminary injunctive relief, the Court must conduct a

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

1 The Clerk of Court is DIRECTED to terminate “Dr. Deana Brookhart” as a defendant in the docket, as she is

mistakenly listed twice by Suane as a defendant in the Complaint. A review of the Complaint reveals that Dr.

Brookhart is listed once in the case caption and then twice in the “Additional Defendant(s)” section of the civil

complaint form, once as “Dr. Brookhart” and then again as “Dr. Deanna Brookhart.” (Doc. 1, p. 1-4). It is clear from

the Complaint that this is the same individual, and she was listed twice in error.

Under Section 1915A, any portion of a complaint that is legally frivolous, malicious, fails

to state a claim upon which relief may be granted, or requests money damages from a defendant

who by law is immune from such relief must be dismissed. See 28 U.S.C. § 1915A(b). At this

juncture, the factual allegations of the pro se Complaint are to be liberally construed. Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

THE COMPLAINT

Suane alleges the following in the Complaint:2 Prior to incarceration, he was in a car

accident in 2017, and as a result, he experiences chronic pain. (Doc. 1-1, p. 5). Suane entered IDOC

custody in 2019 and was prescribed Norco 10/325 for his pain by Dr. Lynn Pittman. (Id. at p. 1).

Suane took two tablets three times a day, and the medicine worked to effectively manage his pain.

Dr. Lynn Pittman was eventually fired from Lawrence. (Id.). Wexford Health, the company

contracted by IDOC to provide medical services, did not hire a fulltime doctor to replace Dr.

Pittman. (Id. at p. 53). Rather, Dr. Shah, the fulltime doctor at Roberson Correctional Center, began

treating inmates at Lawrence a few times a week, after normal working hours. (Id. at p. 41, 52).

Once Dr. Shah began treating inmates at Lawrence, in an effort to save costs, he replaced

most of the name brand pain medications prescribed to inmates at Lawrence with cheap, less

effective pain medication. (Doc. 1-1, p. 3-4, 8). Suane had his first appointment with Dr. Shah on

August 12, 2020. (Id. at p. 1). During the visit, despite the fact that Suane’s medication was

working, Dr. Shah reduced his pain prescription by taking away the afternoon dose. (Id.). At some

point, Dr. Shah stopped prescribing Norco 10/325 altogether and prescribed other ineffective and

2 The Complaint is over 500 pages long, which includes allegations and exhibits. Suane has submitted this District’s

civil complaint form, which includes a “Statement of Claim” section. (Doc. 1, p. 11-13). Suane has also filed another

document titled “Statement of Facts.” (Doc. 1-1). The Statement of Facts is written as a 55 page journal accounting

for daily events from August 2020 until February 2021 regarding his medical care. Construing the Complaint liberally,

the Court will consider the factual allegations in the Statement of Facts to the extent they correspond to and are offered

in support of the claims alleged in the Statement of Claim.

even dangerous medicines to treat Suane’s pain. (Doc. 1, p. 11). Dr. Shah prescribed the medicine

Pamelor and told Suane that it was to treat his pain. (Doc. 1, p. 12; Doc. 1-1, p. 33). Dr. Shah did

not disclose to Suane that Pamelor is primarily used to treat depression and has dangerous side

effects. (Doc. 1-1, p. 33-34, 45). Because Suane is bipolar, he began having dangerous side effects.

He experienced suicidal and homicidal thoughts and became aggressive, angry, and irritable. (Id.

at p. 35, 40). Suane told Dr. Shah of his side effects at an appointment on October 19, 2020. (Id.

at p.41). He asked to be prescribed his previous pain medication, and Dr. Shah said that “they” are

not allowing it anymore. (Id. at p. 42). Dr. Shah told Suane he would check with the psychiatrist

at Lawrence to see what he could prescribe to Suane, but Suane never heard back and was not

given a replacement pain medication. (Id.). After two months, Suane stopped taking the Pamelor,

and his side effects slowly stopped. (Id. at p. 40).

In November 2020, Dr. Shah prescribed Robaxin, meloxicam, and acetaminophen to be

taken twice daily, and in January 2021, Dr. Shah prescribed Tylenol and ibuprofen. (Doc. 1-1, p.

46, 49). These medicines also did not provide relief. Suane again asked for medicine to treat his

pain at an appointment on February 5, 2021. (Id. at p. 51). He told Dr. Shah that the pain medicine

prescribed did not work. Dr. Shah said there was nothing he could do because the FDA was not

allowing them to prescribe the requested medication. Dr. Shah also informed Suane that another

doctor was hired to work at Lawrence and would be starting in a couple of weeks. Dr. Shah stated

that maybe she would prescribe Suane the pain medication he wants. (Id.).

Since being treated by Dr. Shah, Suane has not received proper treatment for his chronic

pain and other related health issues, including swelling and discoloration in the lower left side of

his abdomen, difficulties urinating, and pain in his lungs. (Doc. 1-1, p. 48, 50-51). Suane’s

conditions remain untreated, and he experiences constant pain, unable to perform daily tasks. (Doc.

1-1, p. 4).

PRELIMINARY DISMISSALS

Suane claims that for over six months Lawrence did not have a fulltime doctor on staff who

was at the facility forty hours a week, which resulted in inadequate healthcare. (Doc. 1, p. 12; Doc.

1-1, p. 41). Because Dr. Shah only spent a few hours each week at Lawrence, it was impossible

for him to attend to or even address all the inmates’ issues. Suane asserts that Wexford Health is

liable for not ensuring that Lawrence had an adequate number of medical staff. (Doc. 1-1, p. 53).

He also attempts to hold John Froehlich, the vice president of Wexford Health, liable because there

is no way Froehlich “did not know there [was not a] full time doctor here at Lawrence.” (Doc. 1,

p. 13).

This allegation is insufficient to assert liability under Section 1983. Under the Eighth

Amendment, inmates are entitled to constitutional medical care. Estelle v. Gamble, 429 U.S. 97,

104 (1976). Medical and prison staff cannot act with deliberate indifference to the serious medical

needs of inmates. Conduct meets the deliberate indifference standard when a defendants acts “in

an intentional or criminally reckless manner.” Board v. Farnham, 394 F.3d 469, 478 (7th Cir.

2005). Based on this standard, intentionally staffing a correctional facility with only a part-time

medical doctor, alone, does not violate the constitution, even if such act is contrary to state law or

IDOC policy. See Scott v. Edinburg,346 F.3d 752, 760 (7th Cir.2003). Suane does not allege, nor

can it be inferred, that he received inadequate care because there was not a fulltime doctor at

Lawrence. Rather, he asserts his harm has resulted from Dr. Shah’s continuous denial of effective

pain medication. From August 2020 until filing the Complaint in February 2021, Suane was seen

by Dr. Shah approximately once a month3 and by other medical staff, including nurses and nurse

3 Suane saw Dr. Shah on August 12, 2020, September 7, 2020, October 19 , 2020, November 8, 2020, sometime in

December 2020, and February 5, 2021. (Doc. 1-1, p. 41, 46, 48-50). He states, “Because [I] see nurses, nurse

practitioners, and the [doctor] what good is that if they cannot give me the medications [I] need to stop the [pain].”

(Id. at p. 47).

practitioners, in between those doctor visits. (Id. at p. 47). While the adequacy of care provided

during these medical visits is in question, Suane was regularly seen by a medical professional. To

the extent other inmates were harmed because of inadequate staffing of medical professionals at

Lawrence, Suane cannot assert the rights of other inmates, and those claims are not properly in

this suit. See 28 U.S.C. § 1654. Because Suane was not harmed by the alleged understaffing of

medical personnel at Lawrence, these claims are dismissed without prejudice. Because there are

no other claims brought against John Froehlich, he shall be dismissed without prejudice.

Suane also makes general allegations regarding the inadequacy of the medical staff and the

untimeliness of “medline” and receipt of prescription refills. (Doc. 1-1, p. 7, 41, 53). These claims,

however, are not asserted against a specific Defendant and are also dismissed.

DISCUSSION

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

following Counts:

Count 1: Eighth Amendment deliberate indifference claim against Dr. Shah,

Dr. Brookhart, Laurie Cunningham, Mrs. Brooks, and Rob Jeffreys

for denying Suane adequate treatment for his chronic pain and

related medical issues.

Count 2: Eighth Amendment deliberate indifference claim against Wexford

Health for denying Suane adequate treatment for his chronic pain

and mental health conditions.

Count 3: State law medical negligence/malpractice claim against Dr. Shah,

Dr. Brookhart, Lauri Cunningham, Mrs. Brooks, Rob Jeffreys, and

Wexford for denying Suane adequate treatment for his chronic pain

and related medical issues.

Count 4: Health Insurance Portability and Accountability Act (HIPAA) claim

against Dr. Shah for the disclosure of Suane’s private medical

information.

Count 5: Claim against Andrea Holsher for refusing to release Suane’s

medical records.

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 Twombly4 pleading standard.

Count 1

To state an Eighth Amendment claim based on the denial of medical care, a plaintiff must

plead facts sufficient to show that (1) his medical condition was sufficiently serious, and (2) the

defendants acted with deliberate indifference to his medical needs. Rasho v. Elyea, 856 F.3d 469,

475-76 (7th Cir. 2017); see also Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996).

Suane alleges that Dr. Shah ceased prescribing medication that was effectively treating his

pain for nonmedical reasons and began treating his pain with ineffective and even dangerous

medications. Despite continuous complaints, Dr. Shah is now not prescribing Suane any

medication for his pain. (Doc. 1, p. 11). He also claims that he has been suffering from related

health issues, such as swelling and discoloration in his lower abdomen, difficulties urinating, and

lung pain, that have gone untreated. These claims are sufficient for Count 1 to proceed against Dr.

Shah.

Furthermore, Suane claims that he notified the warden, Dr. Brookhart, the medical

administrator, Laurie Cunningham, the director of nursing, Mrs. Brooks, and the IDOC director,

Rob Jeffreys, that he was receiving inadequate treatment for his chronic pain and that they have

not acted to ensure he receive proper care. (Doc. 1, p. 11). Count 1 will also proceed against these

Defendants. See Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015).

4 See Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007) (a claim must state “enough facts” to be “plausible on its

face”).

Count 2

For Wexford Health to be liable, Suane must plead that a Wexford Health policy caused

the deprivation of his Eighth Amendment right. Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789

(7th Cir. 2014); see also Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

That is exactly what he alleges here. Suane claims that Wexford Health is in control of the

medication inmates can be prescribed by medical providers at IDOC facilities and considers costs

when approving medicines, regardless of efficacy. (Doc. 1-1, p. 10, 15, 35). Because of this policy,

Norco 10/325, prescribed to treat Suane’s chronic pain, and Klonopin, prescribed to treat his

mental health illnesses, were replaced with cheaper, less effective medicines. (Id.). Count 2 will

proceed against Wexford Health.

Count 35

In order to bring a negligence claim under Illinois state law, a plaintiff must allege facts

suggesting that the defendant owed him a duty of care, breached the duty, and that the breach was

the proximate cause of the plaintiff's injury. Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011)

(citing Iseberg v. Gross, 879 N.E.2d 278 (2007)). The allegations are sufficient to support a

negligence claim against Dr. Shah, Dr. Brookhart, Lauri Cunningham, Mrs. Brooks, Rob Jeffreys,

and Wexford Health, as Dr. Shah’s employer.6

However, Suane has not provided the affidavit and medical report, as required under

Illinois state law. See 735 ILCS § 5/2-622. To survive summary judgment, Suane is warned that

he must file an affidavit stating that “there is a reasonable and meritorious cause” for litigation of

the medical malpractice claim, along with a physician’s report in support of the affidavit. See

5 Because Suane’s allegations of medical negligence derive from the same facts as his Eighth Amendment deliberate

indifference claims, this Court will exercise supplemental jurisdiction over the claim. See 28 U.S.C. § 1367(a); Wisc.

v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008).

6 Respondeat superior liability is recognized under Illinois state law.

Young v. United States, 942 F.3d 349 (7th Cir. 2019). His failure to do so is not dispositive of his

claim at this point, so Count 3 shall proceed against Defendants.

Count 4

The Health Insurance Portability and Accountability Act (“HIPAA”) prohibits the

disclosure of a patient’s medical information without his consent. See Pub. L. No. 104-191, 110

Stat. 1936 (1996). However, the statute does not create a private right of action to enforce this

substantive prohibition, and the Seventh Circuit has held that HIPAA does not confer individual

enforcement rights, either express or implied. See Stewart v. Parkview Hosp., 940 F.3d 1013, 1015

(7th Cir. 2019). See also Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010); Wilkerson v. Shinseki,

606 F.3d 1256, 1267 n.4 (10th Cir. 2010). Therefore, Count 4, Suane’s claim for the unlawful

disclosure of private medical information shall be dismissed with prejudice. (See Doc. 1-1, p. 1,

12, 13).

Count 5

Suane claims that he sent several requests to the medical records office, and the medical

records director, Andrea Holscher, has refused to release his medical records because the

documents will show that Dr. Shah prescribed Suane a dangerous drug, Pamelor. (Doc. 1, p. 11;

Doc. 1-1, p. 44-45).

To the extent Suane is claiming an independent constitutional violation, Holscher’s refusal

to produce medical records does not violate a constitutionally established right. See Allen v.

Asselmeier, No. 15-cv-334-NJR-DGW, 2016 WL 5341189, at *5 (S.D. Ill. Sept. 23, 2016) (noting

that the Court is not aware of any constitutional right to view medical records); Kimmel v. Jackson

Cty., Il. No. 11-cv-01146-MJR, 2012 WL 3262903, at *6 (S.D. Ill. Aug. 9, 2012) (finding that a

claim based on the prison’s denial to release medical records did not implicate any constitutional

right held by the plaintiff).

If Suane is alleging civil conspiracy, this claim also fails. Conspiracy is not an independent

basis of liability in Section 1983 actions. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008)

(citing Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000)). Allegations of a conspiracy

are held to a higher pleading standard than other allegations. Geinosky v. City of Chic., 675 F.3d

743, 749 (7th Cir. 2012). Thus, mere conclusions and allegations suggesting there is only a

suspicion of a conspiracy do not suffice.

Here, the Complaint contains only conclusory statements that Holscher refused to produce

Suane’s medical records “because they show Dr. Shah[’]s neglect.” (Doc. 1, p. 11). Without more

supporting factual detail inferring Holscher’s involvement in the denial of adequate care, Suane

has failed to plead a claim for conspiracy. Redd v. Nolan, 663 F. 3d 287, 292 (7th Cir. 2011) (noting

that the “complaint includes not a whiff of a conspiratorial agreement or any improper complicity

between” defendants). Accordingly, Count 5 is dismissed without prejudice.

MOTIONS TO SUPPLEMENT

Prior to screening the Complaint, on March 19, 2021, Suane filed two motions seeking to

supplement the Complaint with additional exhibits. (See Doc. 10). Although the Court typically

does not allow piecemeal additions to complaints, the Court granted the motions but advised Suane

that the additional allegations contained in the new filings do not amend or supplement the claims

in the Complaint. Suane has since filed three additional motions seeking to add exhibits to the

Complaint, along with factual allegations regarding those exhibits. (Docs. 14, 15, 16). The motions

are denied. The Court will not continue to allow Suane to add to the Complaint in an incremental

fashion. Defendants have not yet been served, and Suane has already provided hundreds of pages

of exhibits. “It is not necessary that a plaintiff provide evidentiary support to satisfy the Federal

Rules of Civil Procedure requirement of ‘a shot and plaint statement of the claim.’” Jones v.

Experian Info. Sols., Inc., No. 14-10218-GAO, 2015 WL 13688629, at *1 (D. Mass. June 2, 2015).

The additional exhibits are unnecessary at this early stage in the case, and the motions are denied.

The Court will, however, allow Suane to supplement his Complaint with a new signature

page. (Doc. 11). Suane seeks to add a new signature page that is dated February 11, 2021, as the

Complaint was not dated when it was originally signed and filed. The Motion to Amend is granted.

MOTION TO RECONSIDER

Suane asks the Court to reconsider its previous Order denying his request to subpoena

medical records from a private surgical center, Dr. Stams Carle Plastic Surgery. (Doc. 13). He

argues he is legally entitled to these medical records, and they are required for demonstrating the

severity of his injury. Suane has not presented any errors of law of fact on the part of the Court or

presented newly discovered evidence warranting reconsideration. See Rothwell Cotton Co. v.

Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987). He only restates arguments previously

rejected or that could have been presented in his initial motion for subpoena. See Caisse Nationale

de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996); Ahmed v. Ashcroft, 388

F. 3d 247, 249 (7th Cir. 2004). As the Court previously explained, the motion is premature.

Defendants have not been served and discovery has not yet commenced. Once Defendants have

entered their appearance and filed responsive pleadings to the Complaint, the Court will enter an

order providing instructions and deadlines for discovery. Then Suane may seek relevant discovery

through the issuance of a subpoena on a nonparty.

MOTION FOR EMERGENCY INJUNCTIVE RELIEF

Suane has also filed a Motion for Emergency Injunctive Relief. (Doc. 17). He states that

Lawrence is doing mass transfers due to a security level change of the facility. Due to the severity

of his pain, there is no possible way he can handle the pain of a long bus ride. The transfer could

cause further injuries to his back and to the lump in his lower abdomen. He asks the Court to order

an adjustment in his pain medication and to order Defendants to transfer him in an IDOC van, to

ensure he experiences the least amount of pain possible when being transported to a new facility.

The request for a preliminary injunction will remain pending until Defendants have been

served. Defendants are ordered to respond to the request for a preliminary injunction within

14 days of service of the pleadings in this case, at which point the Court will determine the need

for a hearing on the motions requesting a preliminary injunction.

MOTION FOR RECRUITMENT OF COUNSEL

Suane has filed a Motion for Recruitment of Counsel (Doc. 18), which is denied. 7 Pursuant

to 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent any person unable to

afford counsel.” Suane has paid his full filing fee and did not provide with his motion for counsel

any recent financial documentation. Thus, the Court has no way to determine that Suane is unable

to afford counsel as is required by Section 1915(e). Because Suane has not demonstrated

indigency, the Court will not consider recruiting counsel on his behalf at this time.

DISPOSITION

For the reasons provided, the Complaint survives preliminary review pursuant to Section

1915A. COUNT 1 shall proceed against Dr. Shah, Dr. Brookhart, Laurie Cunningham, Mrs.

Brooks, and Rob Jeffreys, COUNT 2 shall proceed against Wexford Health, and COUNT 3 shall

proceed against Dr. Shah, Dr. Brookhart, Laurie Cunningham, Mrs. Brooks, Rob Jeffreys, and

Wexford. Count 4 is DISMISSED with prejudice and COUNT 5 is DISMISSED without

prejudice. Because there are no surviving claims against Andrea Holscher and John M. Froehlich,

they are DISMISSED without prejudice, and the Clerk of Court is directed to TERMINATE

them as Defendants. The Clerk is further directed to REMOVE “Dr. Deana Brookhart” as a

Defendant in the docket, as this name was listed twice by Suane in the Complaint in error.

7 In evaluating the Motion for Recruitment of Counsel, the Court applies the factors discussed in Pruitt v. Mote, 503

F.3d 647, 654 (7th Cir. 2007) and related authority.

The Motion for Recruitment of Counsel (Doc. 18), the Motion for Reconsideration (Doc.

13), and the Motions to Enter New Evidence (Docs. 14, 15, 16) are DENIED. The Motion to

Amend Original Complaint (Doc. 11) is GRANTED. The Motion for Emergency Injunctive Relief

(Doc. 17) shall remain pending. Defendants are ORDERED to respond to the request for a

preliminary injunction within 14 days of service of the pleadings in this case

The Clerk of Court shall prepare for Dr. Shah, Wexford Health, Dr. Brookhart, Laurie

Cunningham, Mrs. Brooks, and Rob Jeffreys: (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 Suane. 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 pay the full costs of formal service, to the extent authorized by

the Federal Rules of Civil Procedure.

With respect to a defendant who no longer can be found at the work address provided by

Suane, the employer shall furnish the Clerk with that defendant’s current work address, or, if not

known, his or her 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.

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

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

independently investigate hus 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: June 28, 2021

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

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 the 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 of the defendants have filed Answers, the Court will enter a Scheduling

Order containing important information on deadlines, discovery, and procedures. Suane 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. Suane need not submit any

evidence to the Court at this time, unless otherwise directed by the Court.