Black v. Asselmeier

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RODNEY BLACK, )

)

Plaintiff, )

vs. ) Case No. 3:21-cv-01096-SMY

)

DR. ASSELMEIER, and )

WEXFORD HEALTH SOURCE INC., )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Rodney Black, an inmate of the Illinois Department of Corrections, filed the

instant lawsuit pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights at

Menard Correctional Center (“Menard”). This case is now before the Court for preliminary review

of the Complaint (Doc. 1) under 28 U.S.C. § 1915A. 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 the Complaint (Doc. 1): Plaintiff was

incarcerated at Menard in April 2019. He had an initial review by dental services, but was not

placed on the denture list until six months later. He wrote to Dr. Asselmeier on numerous

occasions regarding his need for dentures. Although Dr. Asselmeier was aware that Plaintiff had

no teeth, he did not receive dentures until August 2021. Dr. Asselmeier ordered Plaintiff a

dental/soft food tray, but it was no different than the regular food tray and he could not eat many

of the items. Plaintiff suffered without teeth for 28 months and had indigestion, heartburn,

constipation, poor health, sore gums, and headaches.

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

pro se action:

Count 1: Eighth Amendment deliberate indifference to serious medical needs

claim against Dr. Asselmeier and Wexford for denying and/or

delaying proper dental care for Plaintiff including failing to provide

Plaintiff with dentures for an extended period of time.

Any claim that is mentioned in the Complaint but not addressed in this Order is 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.”).

Preliminary Dismissal

Wexford Health Sources Inc. is named as a defendant but there are no allegations against

it. Wexford cannot be held liable under § 1983 based on the actions of its employees. Instead, it

may be liable only if it had a policy or practice that caused the alleged violation of a constitutional

right. Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 789 (7th Cir. 2014). The complaint

allegations do not suggest that Wexford maintains a policy or practice that caused a violation of

Plaintiff’s constitutional rights. Therefore, Plaintiff fails to state a viable claim against Wexford

and it will be dismissed.

Discussion

Prison officials and medical staff violate the Eighth Amendment’s prohibition on cruel and

unusual punishment when they act with deliberate indifference to a prisoner’s serious medical (or

dental) needs. Rasho v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state 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. Plaintiff’s

allegations are sufficient to proceed on the claim against Dr. Asselmeier in his individual capacity.

However, the official capacity claim must be dismissed. Brown v. Budz, 904 F.3d 904, 918 (7th

Cir. 2005) (claim for monetary damages must be brought against defendant in his individual

capacity only); Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000) (official capacity claim

against an individual is really a lawsuit for money damages against the State, which is barred by

the Eleventh Amendment and the doctrine of sovereign immunity).

Disposition

Wexford Health Source Inc. is DISMISSED without prejudice and the Clerk of Court is

DIRECTED to terminate it as a defendant.

The Eighth Amendment claim in Count 1 will proceed against Dr. Asselmeier in his

individual capacity, but the official capacity claim is DISMISSED without prejudice.

The Clerk shall prepare for Dr. Asselmeier: (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

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.

Defendant is 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, Defendant 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, regardless of whether his application to proceed in forma pauperis is 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 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).

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: December 13, 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 Defendant of your lawsuit and serve

the Defendant with a copy of your Complaint. After service has been achieved, Defendant 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 Defendant’s Answer, but it is entirely possible that it will take

90 days or more. When Defendant has filed an Answer, 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 Defendant before filing any

motions, to give the Defendant notice and an opportunity to respond to those motions.

Motions filed before Defendant’s counsel has filed an appearance will generally be denied as

premature. Plaintiff should not submit any evidence to the Court at this time, unless

specifically directed to do so.

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge