Turner v. Wexford Health Sources, Inc.

FOR THE SOUTHERN DISTRICT OF ILLINOIS

LAMPTON J. TURNER,

#M30646,

Plaintiff, Case No. 22-cv-00510-SPM

v.

WEXFORD HEALTH SOURCES, INC.,

SCOTT THOMPSON,

WEXFORD NURSE,

JOHN OR JANE DOE, collegial board

member,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Lampton Turner, an inmate of the Illinois Department of Corrections who is

currently incarcerated at Centralia Correctional Center, brings this civil action pursuant to 42

U.S.C. § 1983 for violations of his constitutional rights. 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

Turner alleges the following: On October 3, 2019, Tuner had a wisdom tooth extracted at

an outside facility by Dr. Swanson. (Doc. 1, p. 3). On October 7, 2019, Turner saw dentist Dr.

Johnnie at Centralia for a follow-up appointment. At the appointment, Turner told Dr. Johnnie that

had another appointment with Dr. Johnnie on October 29, 2019, and again, he complained of

persisting numbness. Dr. Johnnie told Turner not to worry unless the numbness lasts longer than

six months “because it would be serious, other than that don’t worry about it until then.” (Id.).

On April 7, 2020, after continuing to suffer from numbing and possible nerve damage,

Turner wrote the dental department requesting medical treatment but did not receive a response.

(Doc. 1, p. 3). He again wrote a request for dental treatment on April 17, 2020, and was seen later

that day by a dentist. The dentist told Turner that there was nothing that could be done at Centralia

and that Turner would have to see Dr. Swanson who originally extracted his tooth. The dentist said

he was going to submit a request for Turner to be referred to Dr. Swanson. (Doc. 1, p. 3-4).

Turner was seen by a nurse at sick call in response to his April 17 request for dental on

April 19, 2020. (Doc. 1, p. 4). Turner explained that he had already been to see the dentist on April

17. The nurse stated she was going to record that he “refused” but explained “[i]t doesn’t mean

you really refused, it just means you didn’t need to be seen.” (Id.).

On June 16, 2020, Turner had an appoint with Dr. Swanson. (Doc. 1, p. 5). Dr. Swanson

diagnosed Turner with permanent numbing and nerve damage to his left lower lip and chin. Turner

states that his condition could have been reversed if caught and treated in a reasonable timeframe.

Dr. Swanson told Turner he had two options for repair, both of which include having his jaw

broken and nerve grafting. Turner declined to have additional surgery performed. (Id.).

Turner was seen by a dentist at Centralia again on June 28, 2020. (Doc. 1, p. 5). Turner

informed the dentist that he did not feel comfortable being operated on by Dr. Swanson and did

not want to have his jaw broken. The dentist then asked Turner to sign a refusal form and no

alternative treatment was provided. (Id.).

Turner sues all Defendants for deliberate indifference to serious medical needs in violation

of the Eighth Amendment. For the following reasons, his claims must be dismissed.

Prison officials and medical staff violate the Eighth Amendment’s prohibition against 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 such a claim, a prisoner must

plead facts and allegations suggesting that (1) he suffered from an objectively serious medical

condition, and (2) the defendant acted or failed to act with deliberate indifference to the risk of

harm from that condition. Id.; see also Farmer v. Brennan, 511 U.S. 825, 842 (1994). The Eighth

Amendment does not give prisoners entitlement to “demand specific care” or “the best care

possible,” but only requires “reasonable measures to meet a substantial risk of serious harm.”

Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Medical negligence or even malpractice does

not violate the Constitution. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Duckworth v. Ahmad,

532 F.3d 675, 679 (7th Cir. 2008); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001).

Turner sues the Wexford Nurse who saw him on April 19, 2020, because she did not keep

accurate medical records when she incorrectly recorded that he refused medical care. He asserts

that this inaccuracy exposes him to the “possibility for disaster.” (Doc. 1, p. 7). These allegations

do not amount to deliberate indifference. According to the Complaint, Turner explained to the

Wexford Nurse that he wrote the April 17 request to be seen by a dentist, and he was seen later

that day and referred to an outside specialist. There are no allegations that she denied him treatment

or delayed his care, and to the extent she acted negligently or incompetently in recording the

interaction in Turner’s medical file, such conduct does not violate the Eighth Amendment.

Accordingly, the claims against the Wexford Nurse are dismissed.

The Eighth Amendment claim against the John or Jane Doe member of the collegial review

sight referrals and prohibited second opinions, but the Complaint is devoid of any factual

allegations regarding action or inaction on the part of the John or Jane Doe to support this

conclusion. Turner states he saw the dentist at Centralia on April 17, 2020. The dentist informed

Turner he was going to submit Turner to be approved to see Dr. Swanson, the outside specialist.

He told Turner that because of the corona virus “it might take a while.” (Doc. 1, p. 4). Turner saw

Dr. Swanson two months later on June 16, 2020. According to the Complaint, the delay in

scheduling was caused by restrictions imposed by the COVID-19 pandemic, and Turner does not

state what actions John or Jane Doe took to delay his appointment with Dr. Swanson.

Even if actions on the part of John or Jane Doe somehow caused or contributed to the delay

in scheduling the appointment with Dr. Swanson, the delay, as pled, does not constitute cruel and

unusual punishment. It “is not unusual for individuals, even those not in custody, to wait several

months to see a specialist.” Davis v. Cornett, No. 18-cv-2266-JBM, 2019 WL 6255044, at *3 (C.D.

Ill. Nov. 22, 2019) (finding that the plaintiff failed to state a claim where he had to wait two months

to see a specialist for a nerve injury and numbness in his hand). Additionally, there are no

allegations that the two month wait exasperated Turner’s medical condition in anyway. In fact,

Turner states that at the time the referral was submitted, the dentist told him the numbness was

likely permanent. Accordingly, the Eighth Amendment claim against the John or Jane Doe is

dismissed.

As for Warden Thompson, Turner states that Thompson is legally responsible for the

operations at Centralia and the welfare of all inmates at the prison. (Doc. 1, p. 2). To be held liable

under Section 1983, a person must “have caused or participated in a constitutional deprivation.”

Pepper v. Vill. of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). Warden

Thompson cannot be culpable simply because he holds a supervisory position. The doctrine of

Amendment claim against Thompson is dismissed.

As a private corporation, to state a claim against Wexford Health Sources, Inc.

(“Wexford”), a plaintiff must sufficiently plead that that the constitutional violation was caused by

(1) an express corporate policy; (2) a widespread and persistent practice that amounted to a custom

approaching the force of law; or (3) an official with final policymaking authority. Monell v. Dep’t

Soc. Servs., 436 U.S. 658, 690–91, 98 (1978). Turner alleges that Wexford has policies, protocols,

practices, procedures, and customs that delay access for dental treatment, condone lengthy

scheduling, limit access to competent or qualified dentists readily available within the facility,

allow for the recording of inaccurate characterizations in the medical records, and fail to provide

secondary opinions by alternative but qualified specialists. He has failed, however, to provide

factual allegations suggesting that these policies and customs actually caused the constitutional

deprivations at issue. See Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014). He

draws no causal connection, and he cannot state a claim by relying entirely on bald or conclusory

assertions of a constitutional deprivation. Thus, the Eighth Amendment claim against Wexford is

dismissed.

Because all of Turner’s Eighth Amendment claims are dismissed, the Complaint does not

survive preliminary review pursuant to Section 1915A. Turner will be given an opportunity,

however, to replead his claims in an amended complaint. If Turner chooses to amend, he should

carefully describe the personal actions of each person he names as a defendant. The amended

complaint will completely replace the earlier complaint. See Flannery v. Recording Indus. Ass’n

of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004). Failure to submit an amended complaint on time

could result in the dismissal of this entire lawsuit for failure to state a claim or failure to prosecute.

FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1056-57 (7th Cir. 1997) (dismissal is allowed

MOTION FOR SERVICE OF PROCESS AT GOVERNMENT EXPENSE

The Court recognizes that because Turner is incarcerated, he may have difficulty

effectuating service within the 90 day time limit imposed by Federal Rule of Civil Procedure 4(m).

Therefore, the Motion for Service of Process at Government Expense (Doc. 2) is GRANTED. If

Turner files an amended complaint in accordance with the instructions set forth in this Order and

successfully pleads a claim against a defendant, then the Court will conduct service on his behalf.

DISPOSITION

For the reasons stated above, the Complaint (Doc. 1) is DISMISSED without prejudice for

failure to state a claim for relief. Turner is GRANTED leave to file a “First Amended Complaint”

on or before March 7, 2023. Should Turner fail to file a First Amended Complaint within the

allotted time, the entire case shall be dismissed with prejudice for failure to state a claim or for

failure to prosecute. The Clerk of Court is DIRECTED to mail Turner a copy of the standard civil

rights complaint form along with this Order.

The Motion for Service of Process at Government Expense is GRANTED. (Doc. 2).

Turner 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: February 7, 2023

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge

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