Lillard v. Wexford Health Service

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

YURI LILLARD, )

)

Plaintiff, )

)

vs. ) Case No. 3:22-cv-03117-GCS

)

)

NURSE PRACTITIONER CANE, DR. )

SADIQUI, and WEXFORD HEALTH )

SERVICE, )

)

Defendants. )

)

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff Yuri Lillard, an inmate of the Illinois Department of Corrections (“IDOC”)

who is currently incarcerated at Menard Correctional Center, brings this action for

deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In the Complaint,

Lillard alleges Defendants misdiagnosed his hernia which delayed him getting treatment.

This case is now before the Court for preliminary review of the Complaint

pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen

prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any

portion of a complaint that is legally frivolous, malicious, fails to state a claim upon which

relief may be granted, or asks for money damages from a defendant who by law is

immune from such relief must be dismissed. See 28 U.S.C. § 1915A(b).

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THE COMPLAINT

In his Complaint, Lillard makes the following allegations: On or about November

or December 2020, Lillard informed Nurse Practitioner (“NP”) Cane that he suffered from

stomach pain. (Doc. 1, p. 6). NP Cane ordered an x-ray and referred Lillard to the doctor.

Id. After the x-ray, Lillard saw Dr. Sadiqui who found the tests to be normal. Id. Dr.

Sadiqui prescribed Lillard Ibuprofen for his pain. Id. Lillard continued to experience pain

for the next several months. Id. He again saw NP Cane for the pain, which had migrated

to his groin area. Id. NP Cane ordered a sonogram and referred him to an outside doctor.

Id. On May 31, 2022, Lillard was diagnosed with a hernia and was scheduled for surgery.

Id. Although Lillard was scheduled for surgery on August 2, 2022, the surgery was

rescheduled due to computer issues. Id. On September 22, 2022, he received surgery to

repair his hernia. Id. NP Cane later informed Lillard that the x-ray would not have

identified the hernia. Id.

DISCUSSION

Simply put, Lillard fails to state a claim. Although Lillard alleges that his

Fourteenth Amendment rights were violated and that NP Cane and Dr. Sadiqui

committed medical malpractice in failing to initially diagnose his hernia, medical claims

such as Lillard’s arise under the Eighth Amendment. In order to state a claim, Lillard

must allege that the defendants were aware of the serious medical condition and either

intentionally or recklessly disregarded it. See Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir.

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2008). Negligence is not enough; a plaintiff must demonstrate that a defendant denied

medical care altogether, delayed care, continued with ineffective treatment, or departed

substantially from accepted professional judgment. See Brown v. Osmundson, 38 F.4th 545,

550 (7th Cir. 2022). Lillard’s Complaint, however, alleges that both NP Cane and Dr.

Sadiqui provided him with care. They ordered x-rays and a sonogram, then referred him

to an outside doctor. Although Lillard alleges that he was initially misdiagnosed by Dr.

Sadiqui, he failed to allege that he continued with ineffective care or departed

substantially from accepted professional judgment. He indicates that he was told that Dr.

Sadiqui would not have been able to identify the hernia from an x-ray. Although Lillard

alleges he was not accurately diagnosed until May 2022, he fails to point to any actions

or inactions taken by Defendants during that time period which would amount to

deliberate indifference. See, e.g., Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)(noting

that delaying treatment may constitute deliberate indifference if such delay “exacerbated

the injury or unnecessarily prolonged an inmate's pain.”) (internal citations and

quotations omitted).

Further, to the extent Lillard seeks to allege a medical malpractice claim pursuant

to state law, he also fails to state a claim. A state law malpractice claim might be

appropriately brought under the Court's supplemental jurisdiction along with a claim for

deliberate indifference to medical needs. However, a claim for medical malpractice, like

the claim for deliberate indifference, must include some factual basis to suggest that a

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doctor or other medical provider rendered substandard care to a plaintiff. The allegations

in the Complaint do not allege substandard care. In fact, both medical providers ordered

testing for Lillard and ultimately sent him to an outside doctor.

Lillard also fails to state a claim against Wexford. His Complaint alleges that

Wexford employed NP Cane and Dr. Sadiqui and that Wexford is liable for their conduct.

But a corporation like Wexford cannot be liable based on respondeat superior liability. See

Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 789 (7th Cir. 2014) (citing Iskander v.

Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)). Wexford can only be held liable for

deliberate indifference if an unconstitutional policy or practice of the corporation caused

the constitutional deprivation. Lillard fails to point to any policy or practice that led to

his misdiagnosis.

Thus, Lillard fails to state a claim. Lillard will be given an opportunity to amend

his Complaint in order to state a viable claim. The Amended Complaint should include

factual allegations that indicate what actions or inactions were taken by each defendant

as it relates to his care.

DISPOSITION

For the reasons stated above, Lillard’s Complaint is DISMISSED without prejudice

for failure to state a claim upon which relief may be granted.

Lillard is GRANTED leave to file a “First Amended Complaint” on or before June 16,

2023. Should Lillard fail to file his First Amended Complaint within the allotted time or

consistent with the instructions set forth in this Order, the entire case shall be dismissed with

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prejudice for failure to comply with a court order or for failure to prosecute his claims. See

FED. R. CIV. PROC. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson

v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). The dismissal shall count as

one of Lillard’s three allotted “strikes” under 28 U.S.C. § 1915(g).

An amended complaint supersedes and replaces the original complaint, rendering the

original complaint void. See Flannery v. Recording Indus. Ass’n of America, 354 F.3d 632, 638 n.1

(7th Cir. 2004). As explained above, the Court will not accept piecemeal amendments to the

original Complaint. Thus, the First Amended Complaint must stand on its own, without

reference to any previous pleading, and Lillard must re-file any exhibits he wishes the Court

to consider along with the First Amended Complaint. The First Amended Complaint is

subject to review pursuant to 28 U.S.C. § 1915A.

Lillard is further ADVISED that his obligation to pay the filing fee for this action was

incurred at the time the action was filed, thus the filing fee remains due and payable,

regardless of whether he elects to file a First Amended Complaint. See 28 U.S.C. § 1915(b)(1);

Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

Finally, Lillard 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

seven 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. PROC. 41(b).

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IT IS SO ORDERED.

33 Digitally signed by

DATED: May 16, 2023. Judge Sison

AVkkedt □□ D3 Date: 2023.05.16

12:26:37 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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