Krueger v. David

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

GEORGE A. KRUEGER, JR.,

Plaintiff,

v. Case No. 23-cv-3023-NJR

DR. ALFONSO DAVID, DENISE

ARCHIONE, KASANDRA FREEMAN,

and WEXFORD HEALTH SOURCES,

INC.,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff George A. Krueger, Jr., an inmate of the Illinois Department of Corrections

(“IDOC”) who is currently incarcerated at Shawnee Correctional Center (“Shawnee”),

brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.

On September 6, 2023, Krueger filed his Complaint (Doc. 1) alleging deliberate

indifference in the treatment of his shoulder. On October 3, 2023, Krueger filed a

“Supplemental Complaint” (Doc. 12). The Court does not usually accept “supplemental

complaints” as a pleading must be able to stand on its own without reference to any other

pleading. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004)

(“amended complaint supersedes an original complaint and renders the original

complaint void”). But because Krueger’s “Supplemental Complaint” includes both his

original and new allegations, the Court will treat the filing as an Amended Complaint.

In the Amended Complaint (Doc. 12), Krueger alleges Defendants were

deliberately indifferent to his serious medical condition in violation of the Eighth

Amendment.

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

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. 28 U.S.C. § 1915A(b).

The Amended Complaint

In his Amended Complaint, Krueger makes the following allegations: In May

2021, while incarcerated at Centralia Correctional Center, Krueger began experiencing

shoulder pain, making it difficult to lift his arms up (Doc. 12, p. 6). He received x-rays on

June 19, 2021, but was subsequently transferred to Shawnee Correctional Center. Upon

arrival at Shawnee, Dr. Alfonso David canceled Krueger’s prescribed medications and

gave him “weaker” medications including Acetaminophen and Diclofenac, which did

not help his pain. In response to Krueger confronting Dr. David about his pain, Dr. David

told Krueger that there was nothing that could be done for his shoulders, his condition

was merely the result of old age, and Krueger needed to exercise and lose weight (Id. at

p. 7). Krueger argued with Dr. David. Dr. David eventually filled his prescriptions but

informed Krueger that he would not see him again (Id.).

Krueger alleges that he did take Dr. David’s advice and started exercising. He also

lost 30 pounds, but his shoulder pain worsened (Id.). He received several x-rays, but his

requests for an MRI were denied (Id.). Krueger believes Dr. David refused his request for

an MRI to save money and receive a bonus from Wexford Health Sources, Inc. (Id. at p. 8).

Dr. David also canceled all follow-ups with Krueger.

On December 2, 2022, Krueger learned that Nurse Practitioner (“NP”) Alexandria

Brown had submitted him for a medical consultation two months earlier, in October 2022

(Id. at p. 8). The Shawnee medical records department informed Krueger that he was on

a wait list for an orthopedic consultation (Id. at p. 9). Krueger later received a

memorandum from Dr. David indicating that he was submitting Krueger for an

orthopedic consult due to x-rays showing degenerative changes (Id.). Krueger believes

Dr. David tried to cover his deliberate indifference and lied because the x-rays never

showed his condition, a torn rotator cuff.

On February 28, 2023, Krueger received an MRI of his right shoulder and spoke

with an orthopedic surgeon. The surgeon informed Krueger that he had several torn

ligaments. He also informed Krueger that his injury would be difficult to repair due to

the passage of time from his initial injury (Id. at pp. 9-10). Upon return from the

orthopedic consult, Krueger was scheduled for a follow-up with Dr. David, but Dr. David

canceled the appointment and never rescheduled it (Id. at p. 10). On May 26, 2023,

Krueger was approved for an orthopedic consultation for his right knee but, as of August

20, 2023, the appointment had not been scheduled (Id.).

On June 11, 2023, Krueger saw a nurse for pain medication and a bottom bunk

permit (Id. at pp. 10-11). He asked the nurse about the status of his rotator cuff surgery.

The nurse referenced a note from the medical records department asking NP Brown to

resubmit the request because they could not read her handwriting (Id. at p. 11). He later

learned from NP Brown that she had previously typed out the order along with the

written request and there should not have been an issue with the medical records

department (Id.).

On July 3, 2023, while exercising, Krueger’s right shoulder “went out” and he felt

it dislocate and a ripping in the tendons (Id. at p. 12). While in the healthcare unit, Krueger

learned that Denise Archione was in charge of scheduling his surgery but had failed to

set up the appointment. Finally, a week later, he received notice that his surgery was

scheduled, which Krueger contends was a lie because the medical records indicated that

Archione did not call the orthopedic surgeon until July 14, 2023, and the surgeon was out

of the office until July 17, 2023 (Id. at pp. 12-13). Krueger alleges that Archione’s failure to

timely schedule his surgery left him in pain for months (Id. at p. 13).

On August 7, 2023, Krueger had his rotator cuff surgery (Id. at p. 13). The surgeon

indicated that he might not be able to repair all of the ligaments due to the passage of

time (Id.). But the surgeon was ultimately able to repair his rotator cuff, and Krueger was

transferred back to Shawnee for observation (Id. at p. 15). On August 8, 2023, he requested

instructions on how to care for his shoulder during the healing process, but Dr. David

ignored his requests and stated that he would talk to him at a follow-up appointment in

a couple of days (Id. at pp. 15-16). Krueger was sent back to his housing unit. Dr. David

subsequently canceled his call passes for a follow-up on two occasions (Id. at p. 16).

Krueger later reviewed his medical records and learned that Nurse Kasandra

Freeman placed an entry in the records stating Krueger had been seen by Dr. David on

August 8, 2023, right after surgery (Id. at p. 20). Krueger contends these entries were false

because Dr. David refused to speak with him on that date. On August 18, 2023, Krueger

saw Nurse Joey who informed him that Dr. David was “really messed up” and “not

right” (Id. at pp. 17-18). Nurse Joey submitted a request for Krueger to see the nurse

practitioner, but he never received an appointment (Id.). Krueger continued to experience

extreme pain from his surgery; he never received any follow-up instructions for his

surgical repair (Id. at p. 19).

On August 22, 2023, Krueger went to the healthcare unit on a medical request slip

to inquire about a surgical follow-up (Id. at p. 20). Nurse Freeman canceled the request,

stating that Dr. David had already seen Krueger (Id.). Krueger contends her false

statements delayed his access to medical care (Id.). On August 30, 2023, Krueger saw

NP Sharp and was informed that he was scheduled for a follow-up with his surgeon on

August 31, 2023 (Id. at p. 19). Sharp also submitted a request for an MRI of Krueger’s left

shoulder (Id.).

Preliminary Dismissals

Although Krueger lists Wexford Health Sources, Inc. in the caption of his

Amended Complaint, he fails to include any allegations against Wexford in his statement

of claim. He only alleges that he believes Dr. David refused his request for an MRI

because he would receive a bonus from Wexford for saving money (Doc. 12, p. 8). But

there are no allegations to suggest that Wexford had a policy or practice of recommending

cheaper diagnostics. Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014) (“Such a

private corporation cannot be held liable under [Section] 1983 unless the constitutional

violation was caused by an unconstitutional policy or custom of the corporation itself.”).

Wexford can only be liable if it had an unconstitutional policy or custom, and Krueger

fails to point to such a policy. Krueger only alleges unconstitutional actions by Dr. David

but fails to allege that his actions were taken pursuant to a Wexford policy or practice.

Thus, Wexford Health Sources, Inc. is DISMISSED without prejudice.

Discussion

Based on the allegations in the Amended Complaint, Krueger states the following

claim:

Count 1: Eighth Amendment deliberate indifference claim against

Dr. Alfonso David, Nurse Kassandra Freeman, and Denise

Archione for delaying treatment for Krueger’s injured

shoulders and knee.

The parties and the Court will use these designations in all future pleadings and

orders, unless otherwise directed by a judicial officer of this Court. Any other claim that

is mentioned in the Amended Complaint but not addressed in this Order should be

considered dismissed without prejudice as inadequately pled under the Twombly

pleading standard.1

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon

which relief can be granted if it does not plead “enough facts to state a claim to relief that is

plausible on its face”).

At this stage, Krueger states a viable deliberate indifference claim against Dr.

David, Nurse Freeman, and Denise Archione. He alleges that the actions of each

defendant delayed surgery and other care for his injured shoulders and knee. He alleges

that Dr. David refused to see him on numerous occasions, refused to provide him with

adequate pain medications, and refused to refer him for an MRI or surgical consult. He

alleges that Nurse Freeman participated in that refusal by misstating in the medical

records that he had been seen by Dr. David and denying further follow-up appointments.

Finally, he alleges that Denise Archione failed to timely schedule his rotator cuff surgery,

delaying his surgical repair. That is enough at this stage to state a viable Eighth

Amendment claim.

Preliminary Injunction Motion

In addition to his Amended Complaint (Doc. 12), Krueger filed a motion for

preliminary injunction (Doc. 11). He seeks an MRI for his left shoulder, as well as

additional care and treatment for his right shoulder (Doc. 11, pp. 3-4). A preliminary

injunction is an “extraordinary and drastic remedy” for which there must be a “clear

showing” that a plaintiff is entitled to relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)

(quoting 11A Charles Alan Wright, Arthur R Miller, & Mary Kay Kane, Federal Practice

and Procedure §2948 (5th ed. 1995)). The purpose of such an injunction is “to minimize

the hardship to the parties pending the ultimate resolution of the lawsuit.” Faheem-El v.

Klincar, 841 F.2d 712, 717 (7th Cir. 1988). A plaintiff has the burden of demonstrating: (1) a

reasonable likelihood of success on the merits, (2) no adequate remedy at law, and

(3) irreparable harm absent the injunction. Planned Parenthood v. Commissioner of Indiana

State Dep’t Health, 699 F.3d 962, 972 (7th Cir. 2012).

Simply put, Krueger fails to adequately demonstrate a reasonable likelihood of

success on the merits because he fails to provide any information about his current care.

His motion focuses only on Defendants’ delays in scheduling his original surgery and in

obtaining an MRI for his left shoulder. But he clearly alleges in his Amended Complaint

that he received surgery on his right shoulder. Further, his Amended Complaint indicates

that he was scheduled for a follow-up with the surgeon on August 31, 2023, and that he

received a referral for an MRI of his left shoulder (Doc. 12, p. 19). There is no indication

in his motion as to the current state of his care. Nor does he indicate whether he attended

the scheduled follow-up appointment. Because Krueger focuses only on his past care,

there is nothing in the record to suggest that Defendants are currently being deliberately

indifferent to his shoulder pain. Thus, the Court DENIES Krueger’s motion for

preliminary injunction at this time. Krueger is free to submit another motion with

information regarding the current state of his medical care.

Motion for Counsel

As to Krueger’s motion for counsel (Doc. 3), Krueger indicates that he has sought

counsel on his own and that he needs counsel due to a learning disability and mental

illness. Given the early stage of the litigation process, however, it is difficult to accurately

evaluate the need for the assistance of counsel. See Kadamovas v. Stevens, 706 F.3d 843, 845

(7th Cir. 2013) (“[U]ntil the defendants respond to the complaint, the plaintiff’s need for

assistance of counsel ... cannot be gauged.”). Defendants have yet to be served, and there

is nothing pending that would require a response from Krueger. Further, based on

Krueger’s filings, the Court finds him capable of submitting a motion for preliminary

injunction if he chooses to continue to seek injunctive relief. Thus, his motion for counsel

is DENIED.

Disposition

For the reasons stated above, Count 1 shall proceed against Dr. David, Nurse

Freeman, and Denise Archione. Wexford Health Sources, Inc., is DISMISSED without

prejudice for Krueger’s failure to state a claim. Krueger’s motion for preliminary

injunction (Doc. 11) and motion for counsel (Doc. 3) are DENIED without prejudice.

The Clerk of Court shall prepare for Defendants Dr. Alfonso David, Nurse

Kasandra Freeman, and Denise Archione: (1) Form 5 (Notice of a Lawsuit and Request to

Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk

is DIRECTED to mail these forms, a copy of the Amended Complaint, and this

Memorandum and Order to the defendants’ place of employment as identified by

Krueger. If a defendant fails to sign and return the Waiver of Service of Summons

(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall

take appropriate steps to effect formal service on that defendant, and the Court will

require that defendant to pay the full costs of formal service, to the extent authorized by

the Federal Rules of Civil Procedure.

If a defendant can no longer be found at the work address provided by Krueger,

the employer shall furnish the Clerk with the defendant’s current work address, or, if not

known, defendant’s last-known address. This information shall be used only for sending

the forms as directed above or for formally effecting service. Any documentation of the

address shall be retained only by the Clerk. Address information shall not be maintained

in the court file or disclosed by the Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to

the Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C.

§1997e(g). Pursuant to Administrative Order No. 244, Defendants need only respond

to the issues stated in this Merit Review Order.

If judgment is rendered against Krueger, and the judgment includes the payment

of costs under Section 1915, he will be required to pay the full amount of the costs,

regardless of whether his application to proceed in forma pauperis is granted. See 28 U.S.C.

§ 1915(f)(2)(A).

Finally, Krueger 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. P. 41(b).

IT IS SO ORDERED.

DATED: October 5, 2023 Tl

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

10

Notice to Plaintiff

The Court will take the necessary steps to notify the appropriate defendants of

your lawsuit and serve them with a copy of your Amended Complaint. After service has

been achieved, the defendants will enter their appearance and file an Answer to your

Amended Complaint. It will likely take at least 60 days from the date of this Order to

receive the defendants’ Answer, but it is entirely possible that it will take 90 days or more.

When all the defendants have filed Answers, the Court will enter a Scheduling Order

containing important information on deadlines, discovery, and procedures. Plaintiff is

advised to wait until counsel has appeared for the defendants before filing any motions,

to give the defendants notice and an opportunity to respond to those motions. Motions

filed before defendants’ counsel has filed an appearance will generally be denied as

premature. Plaintiff need not submit any evidence to the Court at this time, unless

specifically directed to do so. c