The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EVARISTO SANTAMARIA,
Plaintiff,
Case No. 21-cv-01539-SPM
v.
WEXFORD HEALTH SOURCES, INC., et
al.,
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
This matter is before the Court on a motion to dismiss filed by Defendant Wexford Health
Sources, Inc. (“Wexford”), a motion for recruitment of counsel filed by Plaintiff Evaristo
Santamaria, and a motion for leave to proceed in forma pauperis also filed by Plaintiff. (Doc. 19,
26, 27).
BACKGROUND
Plaintiff, who is an inmate of the Illinois Department of Corrections, filed this lawsuit
pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights at Menard
Correctional Center. In the Complaint, Plaintiff alleges that on July 30, 2020, his bunk bed
collapsed while he was on the top bunk and his cellmate was laying in the bottom bunk. (Doc. 1,
p. 4). When the bunk broke, Plaintiff states he was ejected to the concrete floor. He sustained
injuries to his right knee and shoulder. Specifically, against Defendant Wexford, Plaintiff claims
that Wexford deliberately understaffs the healthcare unit which caused him to be denied access to
adequate medical care and treatment for his injuries. (Id. at p. 5). Plaintiff also asserts that medical
providers only prescribe over the counter medication to treat pain pursuant to a Wexford policy,
even when the medicine is not helping with pain management. (Id.).
The Court conducted a review of the Complaint pursuant to Section 1915A and allowed
Plaintiff to proceed on an Eighth Amendment claim against Wexford for maintaining a policy of
understaffing the healthcare unit, which resulted in the denial of treatment for his injuries (Count
3). (Doc. 7, p. 4). The Court dismissed his claim regarding Wexford’s pain medication policy, as
Plaintiff did not include any factual allegations regarding how the policy resulted in
constitutionally inadequate care being provided to him. (Id.).1
Wexford moves to dismiss Plaintiff’s claims pursuant to Federal Rule of Civil Procedure
12(b)(6) arguing that Plaintiff has failed to plead facts that give fair notice of his claim and that
cause the allegations to rise above a speculative level. (Doc. 19). Plaintiff did not file a response
in opposition but filed a motion for recruitment of counsel and a motion to proceed in forma
pauperis (“IFP”). (Doc. 26, 27).
MOTION TO DISMISS
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
1 Because the Court has already dismissed the claim regarding the pain medication policy, the Court will not address
Wexford’s arguments pertaining to this policy put forth in the motion to dismiss. (See Doc. 7, p. 4).
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). When a
Rule 12(b)(6) motion to dismiss, courts are to construe “the complaint 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).
To state a viable deliberate indifference claim, a prisoner must allege “(1) an objectively
serious medical condition; and (2) an official's deliberate indifference to that condition.” Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011). A private corporation may only be held liable under
Section 1983 for an unconstitutional policy or custom that results in the injury at issue. Perez v.
Fenoglio, 792 F.3d 768, 780 (7th Cir. 2015). Thus, to state a Section 1983 claim against a private
corporation, a plaintiff must sufficiently plead that that the 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 of Soc. Servs.
of City of N.Y., 436 U.S. 658, 690–91, 98 (1978).
The Court finds that Plaintiff has given Wexford fair notice of a plausible claim regarding
the policy of understaffing. The Court first notes that this case is different from the cases cited to
by Wexford in support of the motion to dismiss. In Peacock v. Rigsby, the district court found that
the plaintiff’s allegations of cost-cutting policy were “too speculative and untethered to his injury
to support his claim.” No. 15 C 1884, 2016 WL 13383232, at *3 (N.D. Ill. Apr. 7, 2016). The court
noted that the plaintiff alleged that “a failure to change his bandages frequently enough or give
him a sufficient” antibiotics caused an infection, and there were no allegations linking a cost-
cutting policy to the infection. Similarly in Taylor v. Wexford Health Sources, Inc., the district
court observed that the plaintiff did not connect his injury to specific policies but provided a
“laundry list of ten alleged policies maintained by Wexford.” No. 15 C 5190, 2016 WL 3227310,
at *4 (N.D. Ill. June 13, 2016).
Here, Plaintiff alleges that he has requested medical help for injuries he describes as
“shock, right knee shooting pain through his entire right leg and his shoulder rotator cuff.” (Doc.
1, p. 5). He states he “continued to request medical help” but “these defendants deliberately denied
[him] medical care.” (Id.). He goes on to explain that Wexford has a policy of understaffing the
medical unit and as a result there has been a break down in services, which have “played a great
part of how and why [he] was denied access to adequate medical care and treatment.” (Id.).
Plaintiff points out that in the class action lawsuit Lippert v. Baldwin Wexford was ordered to hire
more staff, therefore Wexford was aware of the inadequate care caused by understaffing, but they
have not hired more staff. As a result, Plaintiff has been denied access to medical care and endured
pain.
These assertions are more than “threadbare recitals of the elements of a cause of action.”
(Doc. 19, p. 8) (citing Myrick v. Anglin, 496 F. App’x 670, 675 (7th Cir. 2012)). Plaintiff has
sufficiently connected his injury, lack of medical care, to a specific Wexford policy, understaffing.
See Steele v. Wexford Health Sources, Inc., No. 17 C 6630, 2018 WL 2388429, at *7 (N.D. Ill.
May 25, 2018). It is plausible that Plaintiff and other inmates have either been denied medical
treatment or their care has been delayed because there was not enough staff at Menard to treat the
medical needs of the inmates.
The Court agrees that Plaintiff cannot hold Wexford liable solely as a supervisor of its
employees. To the extent Plaintiff is attempting to assert respondeat superior liability pursuant to
Section 1983, such claim is dismissed. Wexford also argues that Plaintiff has not stated a claim
regarding the allegation that the Wexford manual does not permit nurses to make an assessment
as to medical care. (See Doc. 1, p. 5). In the Merit Review Order, the Court did not establish this
assertion as a separate count, as the allegation appeared to be supporting the claim that there is an
inadequate number of medical staff who are able to treat inmates. But to the extent Plaintiff
intended to bring a separate claim against Wexford for the policy of not allowing nurses to make
assessments as to medical care, the Court agrees such claim is dismissed, as Plaintiff does not
specify how this prohibition in the manual resulted in his unconstitutional care.
Accordingly, the motion to dismiss is granted in part and denied in part. Count 3 will
proceed against Wexford to the extent Plaintiff is claiming that a policy of understaffing the
healthcare unit resulted in the delay and denial of treatment for his injuries.
MOTION FOR RECRUITMENT OF COUNSEL
Pursuant to 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent any
person unable to afford counsel.” When faced with a motion for recruitment of counsel the Court
applies a two-part test: “(1) has the indigent plaintiff made a reasonable attempt to obtain counsel
or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the
plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).
Although Plaintiff is not proceeding in forma pauperis and has paid the full filing fee, the
Court still finds him indigent and unable to afford counsel for the purposes of Section 1915(e)(1).
Along with his motion for counsel, he has submitted a motion to proceed IFP, and the Court
assumes that his motion was filed to demonstrate indigency for the purpose of Section 1915(e)(1).
(Doc. 27). As he has already paid the full filing fee the motion to proceed IFP is denied. However,
the Court finds that his motion demonstrates that he indigent and financially qualifies for court
requested counsel. According to his financial statements, as of July 14, 2022, he had $642.93 in
his trust fund account. This sum is simply not sufficient to pay an attorney’s hourly rate to litigate
a case from start to finish.
Plaintiff has also made reasonable efforts to locate counsel on his own prior to seeking
assistance from the Court, as he discloses three unsuccessful efforts to contact attorneys. As to the
next question, the Court finds that circumstances in this case warrant recruitment of counsel.
Santamaria claims he does not speak or write English and only has an eighth-grade education.
Until this point, he has received the assistance of other inmates, but it is apparent from his filings
that, even with the aid of others, Santamaria has trouble communicating his claims, and he failed
to respond to the motion to dismiss. See Henderson v. Ghosh, 755 F.3d 559, 567 (7th Cir. 2014).
Going forward, Plaintiff will have difficulty litigating this case. As such the Court will recruit
counsel to represent Plaintiff in this matter, and his motion is granted. (Doc. 26).
In accordance with 28 U.S.C. § 1915(e)(1) and Local Rule(s) 83.1(i) and 83.9(b), attorney
Mark Brown of Husch Blackwell LLP, located at 190 Carondelet Plaza, Suite 600, St. Louis, MO,
63105, is ASSIGNED to represent Plaintiff Evaristo Santamaria in this civil rights case. On or
before February 23, 2023 (14 days), assigned counsel shall enter his appearance in this case.
Attorney Brown is free to share responsibilities with an associate who is also admitted to practice
in this district court. Assigned counsel, however, must enter the case and shall make first contact
with Plaintiff, explaining that an associate may also be working on the case. Plaintiff should wait
for his attorney to contact him in order to allow counsel an opportunity to review the court file.
The Clerk of Court is DIRECTED to transmit this Order and copies of the docket sheet,
the Complaint (Doc. 1), and the Merit Review Order (Doc. 7) to attorney Lane. The electronic case
file is available through the CM-ECF system.
Now that counsel has been assigned, Plaintiff shall not personally file anything in this case,
except a pleading that asks that he be allowed to have counsel withdraw from representation. If
counsel is allowed to withdraw at the request of Plaintiff, there is no guarantee the Court will
appoint other counsel to represent Plaintiff.
On or before April 8, 2023, Plaintiff, by and through counsel, shall file an amended
complaint. The amended complaint will then undergo preliminary review. If an amended pleading
is not filed, the case shall proceed on the present complaint.
Counsel is ADVISED to consult Local Rules 83.8-83.14 regarding pro bono case
procedures.
Section 2.6 of this Court’s Plan for the Administration of the District Court Fund provides
for a degree of reimbursement of pro bono counsel’s out-of-pocket expenses, as funds are
available. The Plan can be found on the Court’s website, as well as the form motion for out-of-
pocket expenses and an Authorization/Certification for Reimbursement. Any motion for
reimbursement must be made within 30 days from the entry of judgment, or reimbursement will
be waived. See SDIL-LR 83.13. The funds available for this purpose are limited, however, and
counsel should use the utmost care when incurring out-of-pocket costs. In no event will funds be
reimbursed if the expenditure is found to be without a proper basis. The Court has no authority to
pay attorney’s fees in this case. No portion of a partial filing fee assessed pursuant to 28 U.S.C. §
1915 will be reimbursed. Counsel may be reimbursed for PACER fees for this case.
The district court has entered into an agreement with attorney Alan Mills and the Uptown
People’s Law Center to consult with lawyers on issues in these cases, including substantive and
procedural questions (both legal and practical) and dealing with the client. Mr. Mills can be
reached by email at alan@uplcchicago.org. He can also be reached by phone at 773-769-1411;
however, email is his preferred means of contact. His services are available to counsel free of
charge, as long as counsel is representing a prisoner pro bono on a case in the district. In addition,
the Court’s website, www.ilsd.uscourts.gov, includes a guide for attorneys which is available as a
resource. It is listed under “Rules and Forms” as “Guide for Attorneys Recruited to Represent
Plaintiffs in Section 1983 Cases.” The Court encourages appointed counsel to consult it and Mr.
Mills as needed.
As of this date, Plaintiff’s contact information is:
Evaristo Santamaria #Y35813
Menard Correctional Center
711 Kaskaskia Street
PO BOX 1000
Menard, IL 62259
DISPOSITION
For the reasons stated above, the Motion to Dismiss filed by Defendant Wexford Health
Sources, Inc. is GRANTED in part and DENIED in part. (Doc. 19). Count 3 will proceed
against Wexford to the extent Plaintiff is claiming that a policy of understaffing the healthcare unit
resulted in the delay and denial of treatment for his injuries. (See Doc. 7, p. 4).
The Motion for Recruitment of Counsel filed by Plaintiff Santamaria is GRANTED. (Doc.
26). The Motion for Leave to Proceed IFP filed by Plaintiff Santamaria is DENIED. (Doc. 27).
IT IS SO ORDERED.
DATED: February 8, 2023
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge