Harrison v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSEPH HARRISON,

#M55353,

Plaintiff, Case No. 21-cv-00762-SPM

v.

WEXFORD HEALTH SOURCES, INC.,

L. PITTMAN,

VIPIN SHAH,

DOCTOR WILLIAMS,

L. CUNNINGHAM,

D. BROOKHART,

NP STOVER,

LUKING, and

JOHN/JANE DOE 1-12,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Joseph Harrison, 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. Harrison claims that he is

not being given constitutionally adequate treatment for his illnesses, HLA-B27 and scleritis. He

seeks monetary damages and injunctive relief.

The Complaint is now before the Court for preliminary review pursuant to 28 U.S.C. §

1915A. 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

Harrison alleges the following: He suffers from a painful and debilitating autoimmune

disorder called HLA-B27, also known as ankylosing spondylitis, which continues to go untreated.

(Doc. 1, p. 27). He experiences severe body aches and arthritic pain and swelling, affecting his

organs, arms, shoulders, back, hips, and entire legs. If left untreated, the disease can cause death

within ten years. (Id. at p. 8). Harrison also has an eye condition called scleritis. (Id. at p. 27).

Scleritis causes redness of the eye, blurriness, itching, light sensitivity, loss of visual acuity, and

headaches behind the eye. The condition can cause complete deterioration of sight, loss of the eye,

and ultimately death. (Id.).

Around May 7, 2019, Harrison had an appointment with Dr. Pittman to discuss his potential

illnesses. (Doc. 1, p. 8). Harrison informed Dr. Pittman of his family’s medical history. His mother,

brother, sister, and nephew have all been diagnosed with ankylosing spondylitis. His mother also

has scleritis. Following the appointment, no treatment or testing was ordered. In the following

months, Harrison continued to seek treatment and testing by filing grievances. The grievances

were either denied or not responded to by grievance staff.

At some point, Harrison was told to obtain medical documentation of the diseases from his

family. (Doc. 1, p. 9). When his family visited him at Lawrence on October 30, 2019, they tried to

drop off the requested medical documents but were “unsuccessful.” (Id.). Harrison filed grievances

on November 13, 2019, and January 19, 2020, regarding the incident but did not receive responses.

Harrison had medical appointments with Nurse Practitioner Stover on April 30, 2020, and

May 21, 2020. (Doc. 1, p. 13). She had never heard of HLA-B27 and told Harrison he would need

to pursue testing after his release because the testing he requested would not be performed at

Lawrence. (Id.).

On July 10, 2020, Harrison had another appointment with Dr. Pittman. (Doc. 1, p. 14-15).

He gave Dr. Pittman his family’s medical documents, and she told him he would be tested for

HLA-B27 and scheduled to see an eye doctor. (Id.).

On October 30, 2020, Harrison had a medical episode in which he had difficulty breathing,

chest tightness, severe pain and numbness of his body, and extreme pain from knees to his toes.

(Doc. 1, p. 16). He was taken to the medical unit where he was examined by medical staff. They

concluded it was caused due to asthma, but Harrison disagrees with this diagnosis. He was returned

to his cell twenty minutes later. (Id.). On November 1, 2020, Harrison again experienced difficulty

breathing, dizziness, and sever pain in his lower legs and back. He again was taken to the medical

unit, where he stayed only for thirty minutes. Harrison was told that he would be scheduled to see

Dr. Shah. (Id.).

Harrison saw Dr. Shah on November 9, 2020. (Doc. 1, p. 17). Dr. Shah told Harrison that

he may have HLA-B27 and that treatment would immediately begin. Dr. Shah also stated that

Harrison should have been tested sooner and that the genetic disease had already progressed further

than it should. (Id. at p. 18). Dr. Shah indicated that Harrison would be receiving Humira shots,

folic acid, meloxicam, and methotrexate. Following the appointment, Harrison received all the

medications, except for the Humira treatments. (Id.). The nurse who delivered his methotrexate

told Harrison that he would be called to the healthcare unit for weekly shots of Humira, but he was

never called. After filing a grievance about not receiving Humira, Harrison received a response

from the Healthcare Unit Administrator, Cunningham, that there was no order for Humira from

the physician in Harrison’s medical chart.” (Id. at p. 19). Cunningham also wrote that Harrison

would be placed on the physician call line for review of his plan of care.

On February 17, 2021, Harrison had an appointment with Nurse Practitioner Luking. (Doc.

1, p. 20). Harrison asked about seeing Dr. Shah. NP Luking answered that he would not be

scheduled to see Dr. Shah because he was first scheduled to see a rheumatologist, Dr. Rasheed.

(Id. at p. 20, 22). Dr. Rasheed also treats Harrison’s mother. As of March 9, 2021, Harrison has

not seen a rheumatologist, and his symptoms continue to worsen. He was also starting to

experience bleeding and bruising, which was going untreated. (Id. at p. 22).

Harrison saw Dr. Williams on June 10, 2021. She told him that the bleeding and bruising

were the result of taking meloxicam each day. (Doc. 1, p. 23). Dr. Williams instructed him to stop

taking this medication for a few days to confirm her suspicion. He then asked about his Humira

treatment, and Dr. Williams stated that she thought he was already receiving it. She then asked if

he had been seen by a rheumatologist, which he had not. She then “dodged the issue of the Humira

treatment by then discussing Plaintiff already being in the process of being scheduled to see

rheumatology.” (Id.).

Harrison saw NP Stover the following day on June 11, 2021, for swelling in his right elbow

and hand. (Doc. 1, p. 24). She diagnosed his symptoms as progressive HLA-B27. NP Stover

prescribed him Tylenol, even though he was told not to take Tylenol with Methotrexate. (Id. at p.

25).

Harrison alleges that he is not being referred to see a specialist due to the collegial review

process implemented by Wexford Health Sources, Inc. (“Wexford”) and the John/Jane Doe

Doctors 1-12 who are a part of the collegial review process, who have denied him approval to see

a rheumatologist.

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.

Pittman, Dr. Shah, Dr. Williams, Cunningham, Brookhart, NP

Stover, NP Luking, John/Jane Does 1-12 and Wexford for failing to

provide Harrison adequate treatment for his serious medical

conditions, HLA-B27 and scleritis.

Count 2: Fourteenth Amendment due process claim against Cunningham and

Brookhart for the mishandling of his grievances.

Count 3: Eighth Amendment cruel and unusual punishment claim against

Brookhart for requiring Harrison to wear a mask when leaving his

cell.

Count 4: Eighth Amendment deliberate indifference claim against Brookhart

and Cunningham for the delay in Harrison receiving certain

medications.

The parties and the Court will use this designation 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 Twombly1 pleading standard.

Count 1

Count 1 will proceeding against all Defendants for deliberate indifference to Harrison’s

serious medical needs by denying him testing and treatment for HLA-B27 and scleritis. See Hayes

v. Snyder, 546 F. 3d 516, 522 (7th Cir. 2008) (discussing the elements of a deliberate indifference

claim).

Count 2

Throughout the Complaint, Harrison details various grievances that he filed regarding his

lack of medical care and how the grievances were either denied, contained inaccurate responses,

or were not responded to at all. He alleges that the mishandling of his grievances was a violation

of his Fourteenth Amendment due process rights. Harrison, however, does not have a Fourteenth

Amendment due process right to an effective grievance procedure. See Owens v. Hinsley, 635 F.3d

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (7th Cir. 2007).

950, 953 (7th Cir. 2011); see also Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017).

Additionally, “[r]uling against a prisoner on an administrative complaint does not cause or

contribute to the violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). Thus, Warden

Brookhart and Healthcare Administrator Cunningham cannot be liable for a due process violation

because they denied and mishandled his grievances. Therefore, Count 2 is dismissed with

prejudice.

Count 3

Harrison claims that on May 4, 2020, he wrote a grievance regarding the requirement that

he must wear a KN95 protective mask at all times when outside of his cell. (Doc. 1, p. 12). He had

witnessed staff that day not wearing their protective masks and believed he should not have to

wear one either. Because he has asthma, the mask caused difficulty breathing, light-headedness,

and tightness in his lungs. On at least two occasions during recreation, he had to use his emergency

inhaler. In response to Harrison’s grievance, the grievance officer concluded that Lawrence was

subject to a policy implemented by “Springfield” requiring inmates to wear masks outside of their

cells, and therefore, Harrison’s request to be exempted from this policy was outside of the facility’s

jurisdiction. (Id. at p. 57). The grievance officer also recommended that Harrison should submit a

request to the healthcare unit regarding issues he was having with his asthma due to wearing a

mask. Brookhart concurred in this finding. Harrison claims that this was cruel and unusual

punishment. (Id.).

These allegations, as pled, do not state a claim for an Eighth Amendment violation.

Deferring to state department policy during a public health crisis and referring Harrison to

healthcare for further issues with his asthma do not equate to the criminal recklessness necessary

for establishing an Eighth Amendment violation. See Burton v. Downey, 805 F. 3d 776, 784 (7th

Cir. 2015). Count 3 is dismissed without prejudice.

Count 4

Harrison alleges that he started to run out of his inhaler on September 12, 2020. (Doc. 1, p.

14). He began writing requests to the healthcare unit for a new one but did not receive a response.

He finished his inhaler on September 30, 2020. (Id. at p. 19). Harrison submitted an emergency

grievance on October 5, 2020, and was issued a new inhaler on October 6, 2020. (Id. at p. 65). He

states that failure to timely renew his inhaler prescription demonstrates “the deliberate indifference

of the Defendants toward Plaintiff’s medical needs in this case.” (Id. at p. 14).

Harrison also claims that during that time he was placed on crisis watch on November 18,

2020. (Doc. 1, p. 19). While on crisis watch, his blister pack medications were taken from him and

distributed to him by a nurse that evening and then again in the morning. When he was released

from watch the following day, on November 19, his medications were not returned to him. He

informed a sergeant that he needed his medications and was given his Claritin, Meloxicam, and

Folic Acid but was without naproxen and other medications for over a week. He sent request slips

to the healthcare unit but did not receive a response. On November 31, 2020, he wrote an

emergency grievance asking for the return of his medications or new refills. Warden Brookhart

determined that the grievance was an emergency. By the time the grievance officer reviewed the

grievance on December 15, 2020, the “situation had been corrected.” (Id. at p. 20).

These allegations do not demonstrate deliberate indifference on the part of Cunningham

and Brookhart. Harrison is mistaken that the fact he had to file a grievance demonstrates deliberate

indifference on the part of these Defendants. (Doc. 1, p. 20). Deliberate indifference is pled by

alleging that a prison official knows of a substantial risk of harm to an inmate and then “either acts

or fails to act in disregard that risk.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). Here,

once Brookhart and Cunningham were alerted through emergency grievances that Harrison had

not received medications, Harrison was provided his medications. Thus, he has not pled that they

acted with deliberate indifference, and Count 4 is dismissed without prejudice.

MOTION FOR RECRUITMENT OF COUNSEL

Harrison has filed a Motion for Recruitment of Counsel (Doc. 3), which is DENIED.2

Harrison discloses four unsuccessful efforts to contact attorneys via written correspondence and

phone calls. Accordingly, he appears to have made reasonable efforts to retain counsel on his own.

With respect to his ability to pursue this action pro se, Harrison indicates that he has a lack of skill,

knowledge, and expertise in legal matters. Nonetheless, the Court finds that Harrison can proceed

pro se, at least for now. He has some college education, and his pleadings demonstrate an ability

to construct coherent sentences and relay information to the Court. Harrison appears competent to

try this matter without representation at this time. Once discovery has commenced, if Harrison has

significant difficulty, he may refile his motion.

DISPOSITION

For the reasons stated above, the Complaint survives preliminary review pursuant to

Section 1915A. COUNT 1 will proceed against Wexford, Pittman, Shah, Williams, Cunningham,

Brookhart, Stover, Luking, and John/Jane Does 1-12. COUNT 2 is DISMISSED with prejudice

and COUNTS 3 and 4 are DISMISSED without prejudice.

Because Harrison’s claims involve the alleged denial of medical care, the Clerk of Court

is DIRECTED to ENTER the standard qualified protective order pursuant to the Health Insurance

Portability and Accountability Act.

The motion for recruitment of counsel (Doc. 3) is DENIED without prejudice.

The Clerk of Court shall prepare for Wexford, Pittman, Shah, Williams, Cunningham,

2 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. Although Harrison is not proceeding in forma pauperis and has

paid the full filing fee, the Court still find him indigent and unable to afford counsel for the purpose of Section

1915(e)(1).

Brookhart, Stover, Luking, and John/Jane Does 1-12 (once identified): (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 Defendants’ place of employment. 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 pay the full costs of formal service, to the extent authorized

by the Federal Rules of Civil Procedure.

If a defendant can no longer be found at the work address provided by Harrison, the

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

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.

Service shall not be made on the unknown Defendants until such time as Harrison has

identified them by name in a properly filed motion for substitution. Guidelines and dates will be

set for identifying the John/Jane Does once Defendants have filed their Answers to the Complaint.

At that point in time, Harrison will have the opportunity to engage in limited discovery to ascertain

their identity. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009).

Warden Brookhart shall respond to discovery aimed at identifying these unknown defendants.

Harrison is ADVISED that it is his responsibility to provide the Court with the name and service

addresses for these individuals.

Defendants are ORDERED to file an appropriate responsive pleading to the Complaint in

a timely manner and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendants only need to respond to the issues stated in this

Merit Review Order.

Finally, Harrison 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 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).

IT IS SO ORDERED.

DATED: November 22, 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. Plaintiff 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. Plaintiff need not submit

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