Thomason v. Dallison

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JEREMY THOMASON, #M39074, )

)

Plaintiff, )

)

vs. ) Case No. 3:22-cv-00834-SMY

)

DALLISON, )

SARA STOVER, )

WEXFORD MEDICAL PROVIDER, )

LACKEY, )

ROB JEFFREYS, )

FIERRO, and )

DEE DEE BROOKHART, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Jeremy Thomason, an inmate of the Illinois Department of Corrections, filed the

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

Lawrence Correctional Center. This case is now before the Court for preliminary review of the

Complaint 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 injured the

middle finger on his right hand while playing basketball during recreation on May 2, 2021. After

returning to his cell, he noticed his finger was swollen and “turning colors.” Plaintiff informed

Sgt. Fierro of the injury, who stated he would call the health care unit (HCU). After four hours,

Thomason had to remind Fierro to make the call. When Fierro called the HCU, he was told it was

understaffed, they were too busy to see Plaintiff, and to try again tomorrow.

The next day, Plaintiff showed Sgt. Walker his finger and Walker called the HCU. At the

HCU, Plaintiff told Nurse Dallison that he believed he had a broken finger because it was crooked

and purple. She responded that it did look “pretty messed up,” but there was really nothing much

that could be done. Plaintiff told her he did not want his finger to remain crooked. Nurse Dallison

made a splint from a tongue depressor, gauze, and tape. She gave him Tylenol and stated she could

not give him an ice permit.

Plaintiff was called to the HCU to see NP Stover on May 5, 2021. She changed the splint

and told him she would continue with the splint in an effort to straighten his finger. NP Stover

called him back to the HCU on May 7, 2021 for a follow-up. He informed her that he still had

pain and something did not feel right. NP Stover increased the dosage of Tylenol and also

prescribed Ibuprofen. She put on a new splint and ordered an x-ray. On May 10, 2021, Plaintiff

returned to the HCU for NP Stover to replace the splint. He told her he was still in a lot of pain.

She informed him she did not have the results of the x-ray yet. The following day, an unidentified

nurse replaced the splint but did not wrap it correctly. Another splint was placed on Plaintiff’s

finger on May 16, 2021.

Plaintiff spoke to Director of Nursing Lackey on May 21, 2021 about his injury, his

continued pain, his belief that his finger was broken, and the inadequate treatment he had received.

She told him she would look into it.

Plaintiff was called to the HCU on May 24, 2021 to see NP Stover. She informed him that

he had a fractured finger. He told her his finger continued to hurt “really bad.” She changed his

splint.

Plaintiff had a second x-ray on June 16, 2021. He saw NP Stover on June 25, 2021 and

she told him that the x-ray revealed his finger had not healed. He complained about his finger

being “significantly crooked” and asked why they had not done more to fix it. NP Stover stated

“it’s just a crooked finger, it’s not the end of the world” (Id., p. 10). She placed another splint on

his finger.

While speaking to Nurse Denise and Director of Nursing Lackey about another matter on

August 2, 2021, Plaintiff told them that it had been three months since he injured his finger and

the nurses continued to tell him there was not much they could do for his injury. The Director told

him “it’s just a finger, they probably won’t do much for it” (Id.).

Plaintiff was called to the HCU to see Dr. Meyers on August 7, 2021. Dr. Meyers asked if

he had been sent to an outside specialist and Plaintiff told him that Nurse Dallison and NP Stover

told him that not much could be done other than placing the finger in a splint. Dr. Meyers

scheduled another x-ray to determine whether he needed to be seen by an orthopedic surgeon. The

x-ray was taken on August 10, 2021. Plaintiff sent request slips to the HCU on August 23, 26, and

29, 2021 complaining about pain. He was given Tylenol by Nurse Baker on September 1, 2021.

Plaintiff was sent to an outside hospital for an MRI on November 10, 2021. He saw Dr.

Savino on November 16, 2021 and she informed him that she would be requesting surgery for his

hand. He went to the HCU on December 14, 2021 and was told his surgery had been approved

and he would be going to see a doctor for a consultation. On January 15, 2022, Plaintiff sent a

request slip to the HCU requesting the status of the consultation. He received a response dated

January 19, 2022, stating he was in the process of being scheduled for a consultation.

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

pro se action:1

1Any 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

Count 1: Eighth Amendment claim against Dallison for exhibiting deliberate

indifference to Plaintiff’s serious medical needs relating to his May

2, 2021 finger injury.

Count 2: Eighth Amendment claim against Stover for exhibiting deliberate

indifference to Plaintiff’s serious medical needs relating to his May

2, 2021 finger injury.

Count 3: Eighth Amendment claim against Lackey for exhibiting deliberate

indifference to Plaintiff’s serious medical needs relating to his May

2, 2021 finger injury.

Count 4: Eighth Amendment claim against Jeffreys for exhibiting deliberate

indifference to Plaintiff’s serious medical needs relating to his May

2, 2021 finger injury.

Count 5: Eighth Amendment claim against Fierro for exhibiting deliberate

indifference to Plaintiff’s serious medical needs relating to his May

2, 2021 finger injury.

Count 6: Eighth Amendment claim against Brookhart for exhibiting

deliberate indifference to Plaintiff’s serious medical needs relating

to his May 2, 2021 finger injury.

Count 7: Eighth Amendment claim against Wexford for a policy or practice

of allowing nurses and nurse practitioners to treat inmates beyond

their level of skill, knowledge, and training which resulted in a

denial of constitutionally adequate medical care for Plaintiff’s May

2, 2021 finger injury.

Count 8: State law claim against Dallison for providing negligent medical

care for Plaintiff’s May 2, 2021 finger injury.

Count 9: State law claim against Stover for providing negligent medical care

for Plaintiff’s May 2, 2021 finger injury.

Count 10: State law claim against Lackey for providing negligent medical care

for Plaintiff’s May 2, 2021 finger injury.

Count 11: State law claim against Jeffreys for providing negligent medical care

for Plaintiff’s May 2, 2021 finger injury.

Count 12: State law claim against Fierro for providing negligent medical care

for Plaintiff’s May 2, 2021 finger injury.

(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.”).

Count 13: State law claim against Brookhart for providing negligent medical

care for Plaintiff’s May 2, 2021 finger injury.

Count 14: State law claim against Wexford for the negligent medical care

provided by its employees for Plaintiff’s May 2, 2021 finger injury.

Preliminary dismissals

Plaintiff refers to individuals in his statement of claim who are not named as defendants.

Federal Rule of Civil Procedure 10(a) requires the names of all parties to be included in the case

caption. Claims against any individuals not identified as defendants in the case caption are

therefore DISMISSED. See Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005).

Additionally, Plaintiff names Rob Jeffreys as a defendant but does not make any factual

allegations against him; he seeks to bring a claim against Jeffreys in his capacity as the IDOC

Director based on his alleged authority to establish, alter, and implement policy and procedure.

To state a viable § 1983 claim, Plaintiff must allege that each defendant was personally involved

in the alleged constitutional deprivation. Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014).

Jeffreys cannot be held liable for the actions of subordinate employees, as the doctrine of

respondeat superior does not apply § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740

(7th Cir. 2001). Absent allegations describing what Jeffreys allegedly did or failed to do in

violation of Plaintiff’s constitutional rights, the claim against him in Count 4 will be DISMISSED.

Further, because there are no allegations establishing Jeffreys involvement in Plaintiff’s medical

care, the claim in Count 11 will be DISMISSED.

Discussion

Counts 1, 2, 3, 5, 6, and 7

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

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. “[D]eliberate indifference

may be found where an official knows about unconstitutional conduct and facilitates, approves,

condones, or turns a blind eye to it.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015).

The allegations in the Complaint are sufficient to proceed against Dallison (Count 1),

Stover (Count 2), and Lackey (Count 3). Plaintiff may also proceed against Wexford (Count 7)

based on the allegation that it has policy or practice of allowing nurses and nurse practitioners to

treat inmates beyond their level of skill, knowledge, and training. However, because respondeat

superior liability is inapplicable in this context, Wexford cannot be liable for an Eighth

Amendment violation caused by one of its employees based solely on the employment

relationship. See Shields v. Ill. Dep't of Corrs., 746 F.3d 782, 789 (7th Cir. 2014).

Plaintiff’s allegations are not sufficient to proceed against Fierro (Count 5). As a

correctional officer, Fierro could not provide medical care himself nor could he force the HCU to

see Plaintiff. Although he forgot to make the call to the HCU for four hours, that does not

constitute deliberate indifference in this context.

The Complaint allegations are also insufficient to proceed against Brookhart (Count 6).

Here only alleged knowledge regarding the issues was via Plaintiff’s grievances. According to the

grievances and the HCU’s responses, Plaintiff was receiving medical treatment. As

a nonmedical administrator, Brookhart was entitled to defer to the judgment of the

medical professionals so long as she did not ignore Plaintiff. Berry v. Peterman, 604 F.3d 435,

440 (7th Cir. 2010).

Counts 8, 9, 10, 12, 13, and 14

Plaintiff seeks to bring state law medical negligence claims against all defendants. When a

district court has original jurisdiction over a civil action, 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). As Plaintiff's allegations of medical negligence derive

from the same facts as the Eighth Amendment deliberate indifference claims, the Court will

exercise supplemental jurisdiction over the state law claims.

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 medical negligence claims

against Dallison (Count 8), Stover (Count 9), and Lackey (Count 10), the medical professionals

who were involved in his medical care.2 He may also proceed on his claim against Wexford (Count

14) based on the allegation that the medical professionals were Wexford employees. See Shields

v. Ill. Dep't of Corrs., 746 F.3d 782, 789 (7th Cir. 2014) (pointing out that “[m]edical negligence

by one of Wexford's employees could support liability under state tort law but not the Eighth

Amendment”). However, Fierro (Count 12) and Brookhart (Count 13) are not medical

professionals and were not involved in his medical care. As such, Plaintiff cannot state a medical

negligence claim against them. Counts 12 and 13 will be DISMISSED.

2 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.

Request for Injunctive Relief

The Warden of Lawrence Correctional Center, in his/her official capacity, will be added to

the docket for purposes of Plaintiff’s request for injunctive relief. See Gonzales v. Feinerman,

663 F.3d 311, 315 (7th Cir. 2011) (holding warden is proper defendant for injunctive relief claim

as the warden would be responsible for ensuring that any injunctive relief would be carried out).

Official capacity claims

Plaintiff asserts claims against the individual defendants in their individual and official

capacities. The injunctive relief claim is properly brought against the Lawrence Warden in an

official capacity. However, Plaintiff’s claims for monetary damages may only be pursued against

state officials in their individual capacities. Brown v. Budz, 398 F.3d 904, 918 (7th Cir. 2005).

Accordingly, the official capacity claims against Dallison, Stover, and Lackey will be

DISMISSED.

Disposition

Following preliminary review under § 1915A the following claims will proceed: Counts

1 and 8 against Dallison, Counts 2 and 9 against Stover, Count 3 and 10 against Lackey, and

Counts 7 and 14 against Wexford. Counts 4, 5, 6, 11, 12, 13 and Rob Jeffreys, Fierro, and

Brookhart are DISMISSED without prejudice. Additionally, the official capacity claims against

Dallison, Stover, and Lackey are DISMISSED.

The Clerk of Court is DIRECTED to TERMINATE Jeffreys, Fierro, and Brookhart as

parties and ADD the Warden of Lawrence Correctional Center, in his/her official capacity, to the

docket for purposes of Plaintiff’s request for injunctive relief.

The Clerk of Court SHALL PREPARE for Dallison, Stover, Lackey, and the Warden of

Lawrence Correctional Center (official capacity only): (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.

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.

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).

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: July 21, 2022

s/ Staci M. Yandle_____

STACI M. YANDLE

U.S. District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the Defendants of your lawsuit and serve

the Defendants with a copy of your Complaint. After service has been achieved, Defendants 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 Defendants’ Answer or other responsive pleading, but it is

entirely possible that it will take 90 days or more. When Defendants have filed their Answer(s),

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 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 should not submit any evidence to the Court

at this time, unless specifically directed to do so.