Green v. Wexford Health Sources

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JERMAINE GREEN, )

)

Plaintiff, )

)

vs. )

)

WEXFORD HEALTH SOURCES, INC.,, )

STEPHANIE WAGNER, ) Case No. 20-cv-1124-DWD

DR. ALBERTO BUTALID, )

DR. REYNAL CALDWELL, )

KELLY KALMER, )

SANGHEE KIM-ANSBRO, )

JENNY BEHRENDS, )

J. DUCKWICTZ, )

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

This matter is before the Court on a Motion to Dismiss (Doc. 68) filed by Defendant

Dr. Alberto Butalid. Plaintiff Jermaine Green responded (Doc. 75), and Butalid replied

(Doc. 78). The underlying lawsuit concerns medical care that Plaintiff received while

detained at Vandalia Correctional Center (Vandalia). (Doc. 62). For reasons explained

herein, Butalid’s motion will be granted.

PROCEDURAL HISTORY

Plaintiff initiated this case by filing a complaint on October 23, 2020. Plaintiff was

represented by counsel, he paid the filing fee, and he was not incarcerated at the time of

filing, so his complaint was not subject to initial review by the terms of 28 U.S.C. §§

1915(e) or 1915A. (Doc. 8). Wexford immediately moved to dismiss the complaint, but

Plaintiff was granted leave to file an amended complaint, so the motion to dismiss was

denied as moot. (Docs. 17, 19, 20). Plaintiff filed an amended complaint on February 10,

2021. (Doc. 21). Defendants Wexford, Reynal Caldwell, and Alberto Butalid all filed

motions to dismiss. (Docs. 22, 26, 34). Caldwell and Butalid’s motions were granted

outright, and Wexford’s motion was granted in part. (Doc. 49). The Court also dismissed

Defendants Kelly Kalmer and Sanghee Kim-Ansbro for failure to timely serve them

pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Doc. 50).

In September and November of 2021, Plaintiff’s counsel sought and received

extensions to serve parties and to file another amended complaint. On December 30,

2021, Plaintiff filed his second amended complaint, which is now the operative pleading.

The Court notes that Plaintiff’s counsel has again failed to serve Defendants Kelly

Kalmer, and Sanghee Kim-Ansbro. Although counsel sought and received additional

time to serve Defendants Behrends and Duckwictz, no similar request was made as to

Kalmer and Kim-Ansbro. See (Docs. 76, 77).

THE SECOND AMENDED COMPLAINT

In the Second Amended Complaint, Plaintiff alleges that upon his arrival at

Vandalia in July of 2018, he was examined by Wexford staff and “it became known by

Defendants that he had a serious history of congestive heart failure and spinal stenosis.”

(Doc. 62 at 3, ¶ 13). Plaintiff generically alleges that all the Defendants refused to give

him his required medications before or after they received his medical records. (Id. ¶¶

14-15). He alleges that the nurses only gave him two of his prescribed medications. On

March 13, 2019, he had an appointment with Defendant Caldwell, who refused him any

additional medications. (Id. ¶ 18). Plaintiff never received all of his medications at

Vandalia. (Id. ¶ 19). Without his medications he suffered from asthma, shortness of

breath, dizziness, sweating, and severe anxiety. (Id. ¶ 20). Without his medications,

Plaintiff’s heart function decreased to twenty percent. (Id. ¶ 21).

Plaintiff alleges that Defendants Caldwell and Butalid intentionally failed to order

or dispense all of his previously prescribed medications. (Id. ¶ 22). Plaintiff alleges that

this failure was caused by a Wexford policy, custom, or practice, of arbitrarily refusing

medications to cut costs. (Id. ¶ 23). Plaintiff claims that Butalid’s refusal to give him his

medications constituted deliberate indifference. (Id. ¶ 25). Plaintiff was released from

Vandalia in September of 2019.

Plaintiff names Defendant Butalid in Count 1, for deliberate indifference to his

serious medical needs, and he names Butalid in Count 2 for ratifying the actions of

Defendant Caldwell. (Doc. 62 at 4-7).

DISCUSSION

A. Legal Standards

The purpose of a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure is to decide the adequacy of the complaint. Gibson v. City of Chi.,

910 F.2d 1510, 1520 (7th Cir. 1990). The federal system of notice pleading requires only

that a plaintiff provide a “short and plain statement of the claim showing that the pleader

is entitled to relief.” FED. R. CIV. P. 8(a)(2). However, the allegations must be “more than

labels and conclusions.” Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This requirement is satisfied if the

complaint (1) describes the claim in sufficient detail to give the defendant fair notice of

what the claim is and the grounds upon which it rests and (2) plausibly suggests that the

plaintiff has a right to relief above a speculative level. Twombly, 550 U.S. at 555. See also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); EEOC v. Concentra Health Servs., 496 F.3d 773,

776 (7th Cir. 2007). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

District courts are required by the Court of Appeals for the Seventh Circuit to

review the facts and arguments in Rule 12(b)(6) motions “in the light most favorable to

the plaintiff, accepting as true all well-pleaded facts alleged and drawing all possible

inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). “The

purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide

the merits.” Gibson, 910 F.2d at 1520. A complaint “should not be dismissed for failure to

state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Sanders v. Melvin, 25 F.4th 475,

483 (7th Cir. 2022) (internal quotations and citations omitted). When reviewing a Rule

12(b)(6) motion to dismiss, the court is generally limited to the allegations within the four

corners of the complaint, along with any exhibits attached to the complaint and any

documents attached to the motion that are referenced in and central to plaintiff’s claims.

See, e.g., Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012).

To succeed on a deliberate indifference claim concerning medical care, a plaintiff

must show that: (1) he had an objectively serious medical need (2) to which the

defendants were deliberately indifferent. See, e.g., Brown v. Osmundson, 38 F.4th 545, 550

(7th Cir. 2022). Something more than negligence or even malpractice is required.

Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). “Even objective

recklessness—failing to act in the face of an unjustifiably high risk that is so obvious

that it should be known—is insufficient to make out a claim…[i]nstead, the Supreme

Court has instructed us that a plaintiff must provide evidence that an official actually

knew of and disregarded a substantial risk of harm.” Petties v. Carter, 836 F.3d 722,

728 (7th Cir. 2016).

B. Analysis

In the Motion to Dismiss, Defendant Dr. Butalid argues that Counts 1 and 2 should

be dismissed as the claims relate to him because Plaintiff’s allegations are vague and

conclusory, and do not sufficiently detail his personal involvement. (Doc. 69).

Specifically, Butalid claims that Plaintiff does not plead that he ever saw or treated him,

whereas he specifically identifies occasions when he saw other defendants. Further,

Butalid argues that his position as a medical director is insufficient to demonstrate

personal involvement. Butalid emphasizes that even after multiple rounds of initial

disclosures, including the disclosure of detailed medical records, Plaintiff is still unable

to identify his personal involvement in Plaintiff’s care. As such, Butalid argues that

Plaintiff has failed to state a claim against him.

In opposition, Plaintiff argues that because he was seen by medical staff upon

arrival at Vandalia, all Defendants were then put on notice of his medical needs. (Doc.

75). Despite this knowledge, all Defendants proceeded to deny him needed medication

both before and after they received his medical records. He argues that one can plausibly

infer that Butalid, as medical director at Vandalia, was aware of a substantial risk of harm

to his health, and he allowed the risk of harm to continue by continued denial of his full

range of medications. Plaintiff argues that his allegations against Butalid are

strengthened by his contention that the denial of medication resulted from Wexford’s

policy or practice of arbitrarily denying medication to cut costs. He also argues that as

medical director, Butalid had a general duty to all inmates, not just those that he saw and

personally treated. In closing, he argues that Count 2 should also proceed against Butalid

as supervisor of Dr. Caldwell, because Caldwell denied him medication after an

appointment, which strengthens his claim against Butalid as medical director.

The allegations against Butalid are insufficient to state a claim. In the Order on the

first motion to dismiss, the Court found that Plaintiff had not stated a valid claim against

Butalid by merely alleging that “as medical director, [Butalid] would have been on notice

of his health condition.” (Doc. 49 at 4). The allegations in the Second Amended

Complaint fare no better. Plaintiff again alleges that Butalid had a general responsibility

to oversee all medical care at Vandalia, so any knowledge about Plaintiff’s medical

condition that anyone possessed was attributable to Butalid. This allegation is not

sufficient to state a claim for deliberate indifference because it still fails to establish

subjective intent on Butalid’s behalf. Plaintiff argues that because he has now alleged

that Butalid participated in Wexford’s custom or policy of denying medication to save

costs, his claim against Butalid is stronger, but the existence of a general policy does not

do anything to establish Butalid’s state of mind with regards to Plaintiff’s medical needs.

Plaintiff’s allegations against Butalid in Count 1 are insufficient, so the motion to dismiss

will be granted on Count 1.

Plaintiff has also failed to state a claim in Count 2, because he has not made it clear

that Butalid had actual knowledge of Caldwell’s treatment decisions for Plaintiff. Under

§ 1983, supervisors are not liable for the misconduct of their subordinates. See e.g. Vance

v. Rumsfeld, 701 F.3d 193, 203 (7th Cir. 2012) (“knowledge of a subordinate’s misconduct

is not enough for liability.”); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious

liability is inapplicable to … § 1983 suits, a plaintiff must plead that each Government-

official defendant, through the official’s own individual actions, has violated the

Constitution.”) Plaintiff’s allegations in Count 2 regarding Butalid, are nothing more

than an allegation that Butalid as medical director, should be liable for his subordinate’s

conduct. Accordingly, Plaintiff has failed to state a sufficient claim against Butalid in

Count 2, and the motion to dismiss will be granted in this respect.

Plaintiff indicated that Counts 3 and 4 of the Second Amended Complaint do not

concern Butalid, so the Court need not discuss these counts further.

UNSERVED PARTIES

As noted in the procedural history section above, Plaintiff has not yet served

Defendants Kalmer and Kim-Ansbro. Parties must be served within 90 days after a

complaint is filed. Fed. R. Civ. P. Rule 4(m). The Second Amended Complaint was filed

on December 30, 2021, so significantly more than 90 days have lapsed. Plaintiff sought

and received extensions to serve two other Defendants, but Plaintiff has not made similar

requests as to Kalmer and Kim-Ansbro. Plaintiff must serve Kalmer and Kim-Ansbro

within 14 days, or these defendants will be dismissed.

DISPOSITION

In summary, Defendant Butalid’s Motion to Dismiss (Doc. 49) will be GRANTED,

because Plaintiff has failed to plead a sufficient claim against Butalid in Counts 1 or 2 of

the Second Amended Complaint.

Plaintiff must serve Defendants Kalmer and Kim-Ansbro within 14 days, or these

defendants will be dismissed.

IT IS SO ORDERED. L LZ

Dated: September 22, 2022 Mare iv J

DAVIDW.DUGAN

United States District Judge