Lee v. Stover

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL LEE, #Y17162, )

)

Plaintiff, )

)

vs. ) Case No. 3:21-cv-00900-NJR

)

S. STOVER, )

DON LACKEY, )

WEXFORD HEALTH SERVICES, )

ILLINOIS DEPARTMENT OF )

CORRECTIONS, )

DEANNA M. BROOKHART, )

L. LIVINGSTON, )

J. GARRETT, )

ROB JEFFREYS, )

DEBBIE KNAUER, and )

DR. GLEEN BABICH, )

)

Defendants. )

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Michael Lee, an inmate in the custody of the Illinois Department of

Corrections, filed this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his

constitutional rights at Lawrence Correctional Center. The Complaint is now before the

Court for preliminary review under 28 U.S.C. § 1915A, which requires the Court to screen

prisoner Complaints to filter out non-meritorious claims. 28 U.S.C. § 1915A(a). Any

portion of a 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

Lee makes the following allegations in the Complaint: Nurse Practitioner S. Stover

cut open Lee’s right forearm on July 12, 2021, without ordering an x-ray to determine the

exact location of a foreign object stuck in his forearm. (Doc. 1, p. 26). Stover provided poor

and inadequate care by performing the procedure without a doctor present. (Id.). Stover

was unable to locate the object and stated, “I should have ordered an x-ray, but the x-ray

staff is not working today, sorry Mr. Lee it’s nothing further I can do.” (Id.).

L. Livingston and J. Garrett failed to investigate Lee’s grievances.1 (Doc. 1, p. 16).

Deanna Brookhart signed off on the grievance responses of Livingston and Garrett. (Id.,

p. 26). Debbie Knauer and Rob Jeffreys had the power to overturn the grievance decisions

but did not. (Id.).

Lee believes Wexford Health Services, as Stover’s employer, and the Illinois

Department of Corrections, who partners with Wexford, should be held responsible for

Stover’s inadequate medical treatment. (Id.). Lee seeks monetary damages and the costs

of the lawsuit. (Id., p. 27).

PRELIMINARY DISMISSALS

The Illinois Department of Corrections is a state government agency not subject to

1 Although Lee refers to grievances, he attached only one grievance dated July 9, 2021, which is before the

incident with Stover. The Court notes that Lee states he was unable to attach a copy of another grievance

because it had been sent to the Administrative Review Board. (Doc. 1, p. 25). It appears there may be an

issue as to whether Lee fully exhausted his administrative remedies on the claim against Stover prior to

filing this action. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (stating exhaustion must occur before

a lawsuit is filed; a plaintiff cannot file suit and then exhaust his administrative remedies while the suit is

pending). Additionally, because the incident with Stover occurred on July 12, 2021, and the Complaint was

filed on August 9, 2021, it is unlikely that a grievance made its way through all levels of the grievance

process prior to the filing of this lawsuit. At this point, however, it is not clear on the face of the Complaint

that the claim is barred for failure to exhaust administrative remedies.

suit for money damages under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66-71

(1989); Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012). IDOC will, therefore, be

dismissed with prejudice.

Lee names Don Lackey and Dr. Gleen Babich as defendants but there are no

allegations against these individuals in the statement of claim. Under Federal Rule of

Civil Procedure 8, the Complaint must include a short, plain statement of the case against

each individual. Merely naming a party in the caption of a Complaint is not enough to

state a claim against that individual. Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).

Further, to state a Section 1983 claim a plaintiff must allege that each defendant was

personally involved in the deprivation of a constitutional right. Matz v. Klotka, 769 F.3d

517, 528 (7th Cir. 2014) (“[I]ndividual liability under § 1983 requires personal involvement

in the alleged constitutional deprivation”); see also Pepper v. Village of Oak Park, 430 F.3d

806, 810 (7th Cir. 2005) (“[T]o be liable under § 1983, the individual defendant must have

caused or participated in a constitutional deprivation.”). Absent any allegations

describing what Lackey and Babich allegedly did or failed to do in violation of Lee’s

constitutional rights, the claim against them cannot proceed and they will be dismissed

without prejudice for failure to state a claim.

DISCUSSION

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

claims in this pro se action:

Count 1: Eighth Amendment claim against Stover, Wexford Health

Services, Livingston, Garrett, Brookhart, Knauer, and

Jeffreys for exhibiting deliberate indifference to Lee’s

serious medical needs related to Stover’s attempted removal

of a foreign object in his right forearm on July 12, 2021.

Count 2: State law medical negligence claim against Stover and

Wexford Health Services for Stover’s negligent attempt to

remove a foreign object from Lee’s right forearm on July 12,

2021.

The parties and the Court will use these designations in all future pleadings and orders,

unless otherwise directed by a judicial officer of this Court. Any other claim that is

mentioned in the Complaint but not addressed in this Order should be considered

dismissed without prejudice as inadequately pled under the Twombly pleading standard.

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that 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.”).

Count 1

Prison staff and medical providers violate the Eighth 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 allege facts suggesting that (1) he suffered from an

objectively serious medical condition, and (2) the defendant acted with deliberate

indifference to his medical needs. Id.

The allegations are sufficient to proceed on the claim in Count 1 against Stover.

Wexford, however, cannot be held liable based on the actions of Stover because respondeat

superior liability does not apply in actions under § 1983. Shields v. Illinois Dept. of

Corrections, 746 F.3d 782, 789 (7th Cir. 2014). Instead, Wexford can only be liable if it had

a policy or practice that caused the alleged violation of a constitutional right. Id. There is

nothing in the Complaint that suggests Wexford maintains a policy or practice that

caused a violation of Lee’s constitutional rights. Therefore, Lee fails to state a viable claim

against Wexford and it will be dismissed.

Lee also fails to state a claim against the grievance officials for failing to investigate

and/or denying his grievances. “Prison grievance procedures are not mandated by the

First Amendment and do not by their very existence create interests protected by the Due

Process Clause.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). As such, prison

officials incur no liability under § 1983 if they fail or refuse to investigate a prisoner’s

complaints or grievances. Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005) (inmate’s claim

that prison officials failed to investigate his grievances was meritless because inmate did

not have a due process right to an investigation). Additionally, “[p]rison officials who

simply processed or reviewed inmate grievances lack personal involvement in the

conduct forming the basis of the grievance.” Owens v. Evans, 878 F.3d 559, 563 (7th Cir.

2017); see also George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) ( “[r]uling against a prisoner

on an administrative complaint does not cause or contribute to the violation.”). For these

reasons, the claim in Count 1 against L. Livingston, J. Garrett, Deanna M. Brookhart,

Debbie Knauer, and Rob Jeffreys will be dismissed.

Count 2

Lee seeks to bring a state law medical negligence claim. Where a district court has

original jurisdiction over a civil action such as a § 1983 claim, it also has supplemental

jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long as the

state claims “derive from a common nucleus of operative fact” with the original federal

claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). Lee’s allegations

of medical negligence derive from the same facts as his Eighth Amendment deliberate

indifference claim, so this Court will exercise supplemental jurisdiction over the claim.

An Illinois medical negligence claim requires the plaintiff to show: (1) the

applicable standard of care; (2) the defendant breached the standard of care and was

negligent; and (3) and the breach was a proximate cause of the plaintiff’s injury. Chambers

v Igram, 858 F.2d 351, 355 (7th Cir. 1988). Plaintiff’s allegations are sufficient to proceed

on a medical negligence claim against Stover.2 Because respondeat superior liability is

available under state law, the claim will also proceed against her employer, Wexford

Health Services.

MOTION FOR RECRUITMENT OF COUNSEL

There is no constitutional or statutory right to counsel in federal civil cases.

Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d

1001, 1006 (7th Cir. 2006). District courts have discretion to recruit lawyers to represent

indigent clients on a volunteer basis under 28 U.S.C. § 1915(e)(1). A district court

considering an indigent plaintiff’s request for counsel must first consider whether the

plaintiff has made reasonable attempts to secure counsel on his own or been effectively

2 The Court notes that Plaintiff has not provided the affidavit and medical report required under Illinois

state law, i.e., 735 ILCS § 5/2-622. If he intends to proceed with this claim, Plaintiff 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 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. Id. However, Plaintiff must comply

with the requirements set forth in 735 ILCS § 5/2-622 before summary judgment on the merits of the case.

precluded from doing so; and, if so, whether the difficulty of the case factually and legally

exceeds his capacity as a layperson to present it. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th

Cir. 2007).

Lee’s trust fund account statement shows that he has substantial funds available

to assist him in his efforts to obtain counsel. (Doc. 2). As such, the Court is not making a

finding of indigency. Additionally, while it appears that Lee has made an effort to obtain

counsel on his own, he has not heard from all of the attorneys he has written. (Docs. 3,

15). For these reasons, Lee’s motions for recruitment of counsel will be denied.

DISPOSITION

The Illinois Department of Corrections is DISMISSED with prejudice. Don

Lackey and Dr. Gleen Babich are DISMISSED without prejudice.

Count 1 will proceed against S. Stover but is DISMISSED without prejudice as

to Wexford Health Services, L. Livingston, J. Garrett, Deanna M. Brookhart, Debbie

Knauer, and Rob Jeffreys. Count 2 will proceed against Stover and Wexford Health

Services.

Lee’s motions for recruitment of counsel (Docs 3, 15) are DENIED without

prejudice.

The Clerk of Court shall prepare for Defendants S. Stover and Wexford Health

Services: (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 (Doc. 1), and this Memorandum and Order to each

Defendant’s place of employment as identified by Lee. 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 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 Lee, the employer

shall furnish the Clerk with the Defendant’s current work address, or, if not known, 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.

Lee 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. See 28 U.S.C. § 1915(f)(2)(A).

Lee 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: September 22, 2021 7 g 2

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

NOTICE TO PLAINTIFF

The Court will take the necessary steps to notify 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 Answers to your Complaint. It will likely take at least 60

days from the date of this Order to receive Defendants’ Answers, but itis entirely possible

that it will take 90 days or more. When Defendants have filed their Answers, the Court

will enter a Scheduling and Discovery 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 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.