Einecker v. Williams

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHRISTOPHER EINECKER, )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-1041-DWD

)

WEXFORD HEALTH SOURCE, INC., )

DR. DENNIS LARSON, )

NURSE WILLIAMS, )

DEBBIE ISSACS, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Christopher Einecker, an inmate of the Illinois Department of Corrections

(IDOC), brings this civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations

of his constitutional rights at Big Muddy River Correctional Center (Big Muddy). (Doc.

1). Plaintiff claims that the defendants were deliberately indifferent to his serious medical

needs for treatment of an issue with his right ear, and that delayed treatment caused him

permanent hearing loss. He requests declaratory, injunctive, and compensatory relief.

Plaintiff’s Complaint (Doc. 1) is now before the Court for preliminary review

pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen

prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a)-(b).

Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon

which relief may be granted, or asks for money damages from a defendant who by law

is immune from such relief must be dismissed. 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). However, conclusory

statements and labels are insufficient. Enough facts must be provided to state a claim for

relief that is plausible on its face. Alexander v. United States, 721 F.3d 418, 422 (7th Cir.

2013). The pleading standard does not require detailed factual allegations, but it does

require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555. A pleading that offers “labels and conclusions” or “a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The Complaint

Plaintiff alleges that from July 3, 2019, through approximately October 20, 2019, he

suffered extreme pain in his right ear, which he frequently sought treatment for via

established medical channels. (Doc. 1 at 2-6). Finally in October of 2019 he received

antibiotics that reduced the pain, but subsequent visits to outside specialists established

that he had permanent hearing loss, for which he was eventually given a hearing aid.

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

Counts:

Count 1: Eighth Amendment deliberate indifference claim for the

treatment of Plaintiff’s ear condition against Dr. Larson,

Nurse Williams, and Debbie Issacs (health care

administrator); and,

Count 2: Eighth Amendment deliberate indifference against

Wexford Health Source, Inc.

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 claim that is mentioned

in the Complaint but not addressed in this Order is considered dismissed without

prejudice as inadequately pled under Twombly. See Twombly, 550 U.S. at 570 (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”).

Discussion

Claim 1 is adequate to survive initial review against all three defendants for their

role in providing Plaintiff with healthcare services.

By contrast, Claim 2 is insufficient and will be dismissed. Although Plaintiff

named Wexford Health Source, Inc., as a defendant in this action, he does not provide

any factual allegations detailing Wexford’s alleged role in a constitutional violation. Bare

legal assertions without factual elaboration are not sufficient to state a claim. See e.g.,

Twombly, 550 U.S. at 555.

Wexford, a private corporation, cannot be held liable under § 1983 unless the

constitutional violation was caused by an unconstitutional policy or custom of the

corporation itself. Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 789 (7th Cir. 2014);

see also Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Thus,

under Monell, for Plaintiff to recover from Wexford, he must show that the alleged

constitutional violation was caused by: (1) an express policy that caused a constitutional

deprivation when enforced; (2) a widespread practice that was so permanent and well-

settled that it constituted a custom or practice; or (3) a person with final policymaking

authority. Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021). In other

words, a plaintiff must show that “systematic and gross deficiencies in …[IDOC’s]

medical care system,” caused his injury, and also that “a policymaker or official knew

about these deficiencies and failed to correct them.” Daniel v. Cook Cty., 833 F.3d 728, 735

(7th Cir. 2016). Alternatively, a plaintiff must show that “the unlawful practice was so

pervasive that acquiescence on the part of policymakers was apparent and amounted to

a policy decision.” Dixon v. Cty. Of Cook, 819 F.3d 343, 348 (7th Cir. 2016).

Here, Plaintiff has no factual allegations concerning a violative policy or custom.

In the complete absence of specific allegations, Plaintiff has failed to state a valid claim.

Thus, Claim 2 does not survive §1915A review, and it will be dismissed without

prejudice.

Motion for Counsel

In his Motion for Counsel (Doc. 3) Plaintiff indicates that he has sent letters to

several attorneys, and he attached responses declining representation. Plaintiff claims

that he has a limited knowledge of the law, and his highest level of education completed

is the 11th grade. Despite Plaintiff’s legitimate concerns, he has done an excellent job

preparing his pleading at this early stage of litigation, so the Court finds that it is not yet

necessary to appoint an attorney. See Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (the

decision to appoint counsel depends on the difficulty of the case and plaintiff’s

competency to represent him or herself). Here, the claims have not yet proven too

difficult for Plaintiff to represent himself. Therefore, Plaintiff’s Motion for Counsel (Doc.

3) will be DENIED without prejudice. Plaintiff may renew his motion later in the

litigation if it is necessary.

Disposition

IT IS HEREBY ORDERED THAT Claim 1 of the Complaint (Doc. 1) survives

initial screening as described above. Claim 2 against Wexford Health Source, Inc., will

be DISMISSED without prejudice. The Clerk of Court is directed to TERMINATE

Defendant Wexford Health Source, Inc. from this lawsuit because there are no remaining

claims against this defendant. Plaintiff’s Motions for Status (Doc. 10, 11) will be DENIED

as MOOT. Although Plaintiff had sufficient funds to pay his filing fee in this case, the

Court recognizes that his financial status is similar to that of an indigent inmate, and so

the Court will provide service of process on his behalf.

The Clerk of Court is DIRECTED to prepare for Defendants Dr. Larson, Nurse

Williams, and Debbie Issacs: (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 Defendants’ place of employment as identified by Plaintiff. If 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 Defendant, and the Court will require 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. 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 Merits Review Order.

If judgment is rendered against Plaintiff, and the judgment includes the payment

of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs,

regardless of whether his application to proceed in forma pauperis was granted. See 28

U.S.C. § 1915(f)(2)(A).

Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk

of Court and each opposing party of any address changes; 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 of 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 failure to prosecute. 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: February 10, 2022 “

DAVID W. DUGAN

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.

The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles

that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but

it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening

only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some

relief. At trial, he will need to prove by a preponderance of evidence that the facts alleged

actually occurred and that those facts satisfy the legal requirements for recovery. Trial is

the highest and most difficult of hurdles for any Plaintiff to clear.