Tuduj v. Boswell Pharmacy Services LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TOM TUDUJ, M05570, )

)

Plaintiff, )

)

vs. )

)

WEXFORD HEALTH SOURCES, INC., )

DR. SIDDIQUI, ) Case No. 20-cv-924-DWD

QUANTUM VISION CENTERS, )

DONALD R. UNWIN, )

TODD BROOKS, )

KIMBERLY BUTLER, )

FRANK LAWRENCE, )

JOHN BALDWIN, )

T. BRADLEY, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

This matter is before the Court on Motions to Dismiss for Failure to State a Claim

filed by Defendants Wexford Health Sources, Inc. and Quantum Vision Centers. (Docs.

34, 31). Plaintiff responded to the motions (Doc. 50), and the movants replied (Docs. 53,

54). Plaintiff has also filed a Motion to Reconsider the Court’s denial of his first amended

complaint (Doc. 51), a Motion for Leave to File a Second Amended Complaint (Doc. 52),

and a Motion for Leave to Supplement his response to the motions to dismiss (Doc. 56).

The Defendants opposed Plaintiff’s Motion for Leave to File the Second Amended

Complaint (Doc. 55), and Plaintiff replied (Doc. 57). For reasons explained herein, the

motions to dismiss will be granted, and Plaintiff’s other motions are denied. A discovery

schedule will issue separately.

BACKGROUND

Plaintiff Tom Tuduj commenced this action pursuant to 42 U.S.C. § 1983 for

alleged violations of his constitutional rights at Menard Correctional Center Menard).

(Doc. 1). Specifically, Plaintiff contended that Defendants violated his rights in a number

of ways based upon their failure to treat his medical needs, specifically, Varicella-Zoster

virus (VZV). Upon initial review, the Court designated six claims to proceed against

multiple defendants:

Claim 1: Eighth Amendment deliberate indifference claim against

Defendants Siddiqui and Unwin for alleged failure to treat

Plaintiff’s VZV;

Claim 3: Eighth Amendment claim against Brooks, Butler, Baldwin

and Lawrence for rubber-stamping grievances related to

Plaintiff’s medical issues;

Claim 4: Eighth Amendment conditions of confinement claim against

Bradley for the lack of climate control in Plaintiff’s cell;

Claim 5: Respondeat superior claim against Wexford and Quantum for

employing Siddiqui and Unwin;

Claim 6: First Amendment retaliation claim against Siddiqui for

denying a double mattress permit; and

Claim 7: First Amendment retaliation claim against Unwin for failing

to treat Plaintiff’s VZV.

(Doc. 14 at 7-8). Other claims and parties were dismissed for failure to state a claim. The

Court considered and rejected an amended complaint, because it concluded that the

contents of the amended complaint were an attempt to reconsider or re-hash the initial

review of the complaint, and the findings on initial review were not incorrect. (Doc. 49).

The present motion to dismiss relates only to Claim 5, the claim against Wexford and

Quantum premised on respondeat superior.

To analyze the motions to dismiss, the Court will briefly summarize the factual

and legal allegations relevant to the movants. In his complaint, Plaintiff alleged that an

ophthalmologist, Dr. Unwin, provided deficient care for his eye problems, which he

believes was partially retaliatory for Plaintiff’s criminal background. (Doc. 1 at 10-12).

He argued that this claim should extend to Unwin’s employer, Quantum Vision Centers,

on a theory of respondeat superior. He acknowledged that respondeat superior liability

does not currently extend so far, but he argued that the Seventh Circuit had expressed an

interest in changing the law in this area. He also added that he could not make out a

Monell claim against Quantum. (Id. at 12).

As to Wexford, Plaintiff alleged that Wexford should be held liable via respondeat

superior for Dr. Siddiqui’s and Dr. Ek’s (a non-party) actions in failing to treat him once

a cure was suggested, and for retaliatory actions. (Doc. 1 at 6). He recounts multiple

appointments with both doctors at which he alleges he repeatedly sought care for

debilitating conditions to no avail.

MOTIONS TO DISMISS

Quantum argued in the Motion to Dismiss that because Seventh Circuit precedent

is clearly established that respondeat superior liability does not apply to a private

corporation providing a medical service in prison, then Plaintiff’s claim must necessarily

fail. (Doc. 35). Wexford argued that Plaintiff made no substantive argument in support

of respondeat superior claim against Wexford, and the facts presented by his case are not

similar to the instances when the Seventh Circuit has discussed the possibility of

respondeat superior liability against a private corporation. (Doc. 41). Specifically,

Wexford argued that the Seventh Circuit has contemplated the need to allow respondeat

superior liability to limit a corporation’s ability to structure its affairs in such a way that

no one person is responsible for care provided, but Plaintiff is not in that situation.

Plaintiff has a discreet claim against Dr. Siddiqui that he can pursue without the need to

also utilize respondeat superior to reach Siddiqui’s employer. Wexford also argues that

Plaintiff has not alleged, nor could he, that Siddiqui’s alleged acts of a lack of care or

retaliation were acts in furtherance of his employment, as would be required to establish

respondeat superior liability by Wexford for a tort of its employee in the course of

employment.

Plaintiff filed a joint response to both Motions, which contains 60 pages of

argument, and more than a hundred pages of exhibits. (Doc. 50). Much of Plaintiff’s

argument contains lengthy cites to existing precedent. He argues that current Supreme

Court precedent supports a finding of respondeat superior liability against a private

contractor, with heavy reliance on the Seventh Circuit’s discussion in Shields, as well as

heavy reliance on reasoning by Seventh Circuit Judge Hamilton in multiple recent

opinions. (Doc. 50 at 5-22). Plaintiff argues that his case and his own experiences, as well

as class action litigation against IDOC concerning healthcare (Lippert v. Jeffreys) are proof

that respondeat superior precedent should be changed. (Doc. 50 at 22). He goes on to

allege that 20 or 30 doctors failed to properly treat him from 2006 to 2014, and in total, he

has suffered for 17 years without effective treatment for his VZV. (Doc. 50 at 22). As to

the Lippert litigation, he summarized findings and discussed ongoing issues with changes

to IDOC medical care that were mandated, and he argued that he has personally

experienced the issues identified by Lippert that have still not been remedied. (Doc. 50 at

26-30).

Plaintiff then engaged in a lengthy discussion of stare decisis: with subsections on

the unworkability of precedent; the antiquity of precedent; the reliance interests at stake;

and, whether other decisions are well reasoned. Within that discussion, he alleges that

Wexford is too insulated from liability, and they have been allowed to structure their

affairs as a labyrinth to keep individuals like himself from being able to establish liability

for their medical care. In a discussion of interests at stake, Plaintiff engaged in a lengthy

tangent about innocent inmates, the Federal Drug Administration (FDA) and large drug

companies. In closing, Plaintiff contended that he provided ample reason to overturn

precedent that weighs against a finding of respondeat superior liability against Wexford,

and he argued he should be allowed to submit an amended pleading to cure any

deficiencies.

In his entire response, Plaintiff made just one passing reference to Quantum.

Specifically, he alleged that the healthcare monitor report from Lippert demonstrated the

immunity that Wexford has enjoyed for 40 years, “of course includes Quantum Vision

Centers as well.” (Doc. 50 at 38).

Both Defendants replied. The thrust of both replies is that under existing

precedent, Plaintiff’s theory of respondeat superior liability is not viable. Both parties

cite Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987). (Docs. 53, 54).

LEGAL STANDARD

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). If the Court

reviews documents beyond the scope of these strict exceptions, the motion is converted

into a motion for summary judgment under Rule 56. Fed. R. Civ. P. 12(d). “[T]he

complaint may not be amended by the briefs in opposition to a motion to dismiss.” Agnew

v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir. 2012).

ANALYSIS

Upon initial review, the Court read Plaintiff’s pro se complaint broadly, and

allowed his respondeat superior theory past initial review with the caveat that dismissal

was not appropriate at the screening stage without further argument from the parties.

(Doc. 14 at 15). This decision was rendered in part because Plaintiff’s complaint was

lengthy and at times difficult to comprehend. By singling out the respondeat superior

claim and essentially inviting further briefing, the Court has now been presented with

the opportunity to consider the respondeat superior claim in greater detail and with the

benefit of input from the parties. Having thoroughly considered the parties arguments

and controlling precedent, the Court is convinced that the respondeat superior theory

cannot proceed for multiple reasons.

First and foremost, as the Defendants emphasize both in their motions to dismiss

and in their reply briefs, this Court is bound by the decisions of the Seventh Circuit. Colby

v. J.C. Penney Co., Inc., 811 F.2d 1119, 1123 (7th Cir. 1987) (stare decisis relies on the

existence of authoritative precedent, and the simplest reason that a decision is

authoritative is the hierarchical structure of federal courts, with district court’s bound by

appellate courts). The Seventh Circuit has on several occasions, declined to extend

respondeat superior liability to prison contractors. See e.g. Peterson v. Wexford Health

Sources, Inc., 986 F.3d 746, 754 (7th Cir. 2021). Whatever possibility there may be that the

Seventh Circuit or the Supreme Court will revisit this issue, Plaintiff’s own case is bound

by those that came before it, and even if it was not so bound, the case does not present a

compelling reason to depart from existing precedent.

As Wexford noted, the discreet claims presented in this lawsuit against Drs.

Unwin and Siddiqui are unlike other scenarios where the Seventh Circuit has cast doubt

on the appropriateness of refusing to extend respondeat superior to private medical

contractors. Notably, in Shields, the Court stated, “the facts in this case are also an

excellent example of the problems generated by barring respondeat superior liability for

corporations under § 1983. On the facts before us, it appears that Wexford structured its

affairs so that no one person was responsible for Shields’ care, making it impossible for

him to pin responsibility on an individual.” Shields, 746 F.3d at 795. Plaintiff’s allegations

limited to this lawsuit are completely dissimilar from the situation contemplated by

Shields. Although he makes passing reference to 17 years’ worth of faulty care, earlier

litigation he personally pursued, and the Lippert litigation, none of these broad allegations

make a respondeat superior claim appropriate in this case. In the present case, Plaintiff has

clearly defined claims against Drs. Unwin and Siddiqui, so it cannot be said that he will

be unable to pursue liability based on the overall corporate structure of Quantum or

Wexford.

With the benefit of time to consider Plaintiff’s respondeat superior claim in

isolation, rather than as a small part of his overall complaint, the Court is now convinced

that Plaintiff has failed to state a viable claim, so Claim 5 against Wexford and Quantum

will be dismissed. The Court considered Plaintiff’s Motion to Supplement his response

to the motions to dismiss (Doc. 56), but the contents of that motion do not change the

outcome of the above analysis, so the motion will be denied.

OTHER MOTIONS

Plaintiff has also moved for reconsideration of the Court’s 1915A review of his

amended complaint (Doc. 51) and he has moved for leave to file a second amended

complaint (Doc. 52).

The Motion to Reconsider does not provide an adequate reason for

reconsideration. The Federal Rules of Civil Procedure do not expressly recognize

motions to reconsider. Rule 59(e) allows a court to alter or amend a judgment if the party

files the motion “no later than 28 days after the entry of the judgment.” “Altering or

amending a judgment under Rule 59(e) is permissible when there is newly discovered

evidence or there has been a manifest error of law or of fact.” Harrington v. City of Chi.,

433 F.3d 542, 546 (7th Cir. 2006) (citing Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524,

529 (7th Cir. 2000)). Under Rule 59(e), “[a] ‘manifest error’ is not demonstrated by the

disappointment of the losing party;” it “is the ‘wholesale disregard, misapplication or

failure to recognize controlling precedent.’” Bilek v. Am. Home Mortg. Servicing, No. 07 C

4147, 2010 WL 3306912 at *1 (N.D. Ill. Aug. 19, 2010) (quoting Oto v. Metro. Life Ins. Co.,

224 F.3d 601, 606 (7th Cir. 2000)). “Reconsideration is not an appropriate forum for

rehashing previously rejected arguments or arguing matters that could have been heard

during the pendency of the previous motion.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th

Cir. 2004) (quoting Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270

(7th Cir. 1986)).

In Plaintiff’s Motion to Reconsider he simply rehashes arguments and issues

already considered in the Court’s review of his amended complaint (Doc. 49) and in the

Court’s earlier order of initial review (Doc. 14) He alleges that the Court improperly

conflated Dr. Trost and Defendant Boswell (a pharmacy contractor for Menard) when it

observed that the Court in Tuduj v. Johnson, Case no. 17-cv-219-NJR (S.D. Ill.), held that

the medical defendants were not deliberately indifferent for failing to refill Plaintiff’s

prescription. The Court’s reference to that finding was meant to indicate that if

individual providers were found not liable on the underlying conduct, then Boswell

likewise would not be liable absent any underlying constitutional violation. This was not

a mistake.

Plaintiff also alleges the Court erred because “a prison pharmacist could not

intentionally interfere with or fail to carry out treatment prescribed for a prisoner.” (Doc.

51 at 7). He cites to Estelle v. Gamble, 429 U.S. 97 (1976) for this quote, but there is no

language in Estelle about prison pharmacists. Thus, Plaintiff has not identified an error

by citation to Estelle.

Additionally, Plaintiff repeatedly insists that because Dr. Fuentes (a non-party)

prescribed him DSMO (a medication he sought for his VZV), no one, including Boswell

could prevent him from getting that medication. As was alleged in the original

complaint, Plaintiff claims he was prescribed DSMO in September of 2014, and Boswell

refused to fill it. Given that the issues with Boswell began in 2014 or 2015, the Court

stands by its comments that these claims are also likely barred by the statute of

limitations. For all of these reasons, Plaintiff’s Motion to Reconsider will be denied.

As to Plaintiff’s Motion for Leave to file a Second Amended Complaint (Doc. 52).

The Court reviewed the proposed amended pleading, but it will decline leave for it to be

filed. Plaintiff again attempts to add claims against Boswell and the Menard pharmacist,

but these claims have repeatedly been rejected, and there is no adequate reason in the

amended pleading to allow the claims. To the extent that Plaintiff attempts to add a

sentence as to Drs. Unwin and Siddiqui, that they acted in furtherance of their duties

under the Wexford contact to provide medical care, this allegation is insufficient to

change the claims against them or to state a sufficient claim against Wexford and

Quantum who have been dismissed as discussed above. In the enumerated claims,

Plaintiff seeks to add Defendants Brannon and Jeffreys to the Eighth Amendment

conditions of confinement claim but there is no factual basis offered for this addition and

an Eighth Amendment claim requires personal involvement, so this addition is not

sufficient. Finally, Plaintiff seeks to add a state law claim for vicarious liability against

Boswell, Wexford, and Quantum, but the Court has determined that there are no other

valid claims against these parties, so it will not exercise supplemental jurisdiction over

this state law claim. Having considered all of the proposed amendments, the Court finds

that Plaintiff has not proposed any viable claims, so the Motion to Amend (Doc. 52) will

be denied.

DISPOSITION

For the reasons stated above, the Motions to Dismiss (Docs. 34, 41) filed by

Defendants Wexford and Quantum are GRANTED. Claim 5 against Wexford and

Quantum is DISMISSED as insufficient, this is the only claim against these parties, so

the Clerk of Court is DIRECTED to TERMINATE Wexford and Quantum.

Plaintiff's Motion to Reconsider (Doc. 51) is DENIED, his Motion to Amend (Doc.

52) is DENIED, and his Motion to Supplement (Doc. 56) is DENIED as MOOT. The Court

thoroughly reviewed these pleadings as explained above, but they did not present a

sufficient basis for relief. This case will now proceed to discovery on the limited issue of

exhaustion of administrative remedies. A schedule for that process will be issued

separately.

IT IS SO ORDERED. U L.

Dated: February 24, 2023 Deen « CJ o—

DAVID W. DUGAN

United States District Judge

Page 12 of 12