Peacock v. Wexford Health Source, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

GEMAYEL PEACOCK, M21585, )

)

Plaintiff, )

)

vs. )

) Case No. 23-cv-3587-DWD

WEXFORD HEALTH SOURCE, )

JOHN DOE, )

DAVID MITCHELL, )

LATOYA HUGHES, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Gemayel Peacock, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Pinckneyville Correctional Center (Pinckneyville), brings

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

constitutional rights. (Doc. 1). Plaintiff alleges that the Defendants have denied him

adequate dental care including routine cleanings, a periodontal exam, or a root canal. He

attributes his problems on a larger scale to corporate medical provide (Wexford), and to

the Warden (David Mitchell) and Director of IDOC (Latoya Hughes). Plaintiff seeks

compensatory and injunctive relief.

Plaintiff’s Complaint (Doc. 1) is now before the Court for preliminary review

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)-(b).

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). 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

Plaintiff alleges that at an unspecified time after his arrival at Pinckneyville, he

began to experience bleeding of his gums when brushing, and he had pain and sensitivity

to temperatures. At the time, it had been over a year since his last dental exam. (Doc. 1

at 5). He submitted many requests, and in 2021, he was finally seen by Defendant John

Doe Dentist. The dentist performed x-rays, noted plaque on Plaintiff’s teeth, and

indicated he needed a root canal. Plaintiff also explained his issues with bleeding,

temperature sensitivity, and severe pain when eating. He asked for a periodontal exam,

but the dentist told him that Wexford and IDOC would not allow those exams and that

Wexford “always takes shortcuts.” (Doc. 1 at 5-6). Plaintiff also asked to be seen by a

specialist for the root canal.

Plaintiff alleges that he was told he would be placed on the cleaning list, but for

over 2.5 years he has been denied everything (periodontal exam, pain medication, a root

canal performed by a specialist). He alleges that he has suffered prolonged and

unnecessary pain in the intervening years.

Plaintiff further alleges that his issues are linked to Wexford’s widespread policies

and customs of denying periodontal exams, access to specialists or dental care, and access

to timely surgery. He alleges in broad terms that the healthcare provided in IDOC has

been heavily criticized in ongoing class action litigation (Lippert) and it has also been the

subject of criticism in mainstream media. He claims Defendant Warden David Mitchell

is responsible for the wide failings of the available care as a head of the prison and he

personally knows of Plaintiff’s situation because Plaintiff has sent him four letters. He

further alleges Defendant Latoya Hughes is responsible for challenging policies and

practices as the Director of IDOC, and she is aware of his issues from an emergency

grievance, but she turned a blind eye to that grievance. (Doc. 1 at 7).

Based on the allegations in the Complaint, the Court will designate the following

claims:

Count 1: Eighth Amendment deliberate indifference claim against

John Doe Dentist for refusing a periodontal exam, and for

failing to provide any immediate treatment for Plaintiff’s

dental needs;

Count 2: Monell claim against Wexford for failing to provide access

to adequate dental care and for maintaining a policy or

custom that prohibits periodontal care;

Count 3: Eighth Amendment claim against Defendants Mitchell and

Hughes for failing to address Plaintiff’s own dental issues

and for failing to ensure more timely and adequate dental

care in the IDOC as a whole.

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 claim that is mentioned

in the Complaint but not addressed in this Order is considered dismissed without

prejudice as inadequately pled under Twombly. See Bell Atl. 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 that is plausible on its face”).

Analysis

Claim 1

Plaintiff alleges that John Doe Dentist saw him many months after he filed requests

for care. At the appointment, the dentist took x-rays, noted plaque on his teeth, and

suggested that he needed a root canal. Plaintiff also asked for a periodontal screening,

but the dentist informed him that Wexford would not approve that care. Ultimately, the

dentist put him on the dental cleaning list and referred him for the root canal. Plaintiff

alleges that although this occurred sometime in 2021, he still has not received any care.

An Eighth Amendment claim arising from the denial of dental care consists of an

objective and a subjective component. Berry v. Peterman, 604 F.3d 435, 439–40 (7th Cir.

2010). A plaintiff must show that he suffered from a serious medical condition (i.e., an

objective standard) and also show that each defendant responded with deliberate

indifference (i.e., a subjective standard). Id. Here, Plaintiff appears to have identified a

serious dental condition in so much as he alleges constant pain and sensitivity in his teeth,

as well as the dentist’s finding that he needed a root canal. However, Plaintiff has not

identified any facts that tend to suggest that John Doe dentist personally acted with

deliberate indifference towards his situation. By contrast, he alleges that the dentist

performed x-rays and an exam and recommended both a cleaning and a root canal. These

actions appear consistent with the diligent provision of care, rather than deliberate

indifference.

There are two additional things to consider. First, Plaintiff alleges he asked for a

periodontal exam, but the dentist declined to recommend this because Wexford would

not approve it. Inmates are not entitled to demand specific care, so the dentist’s

declination to refer Plaintiff for a periodontal exam is not necessarily deliberate

indifference unless the dentist actually believed that a periodontal exam was medically

necessary or appropriate. The facts alleged do not suggest that the dentist felt at this

juncture that such an exam was needed, so the Court will not infer deliberate indifference

based on this specific request for a particular procedure.

Second, Plaintiff alleges that after he saw the dentist, an additional 2.5 years

elapsed without care. While this suggests a breakdown in the dental care system at his

facility, Plaintiff does not attribute these subsequent delays to John Doe dentist, and he

does not allege he did anything to inform the dentist of this issue. As pled, it appears

that the dentist saw Plaintiff, assessed him, and prescribed a course of care to be

implemented at the prison. There are no allegations that tend to suggest John Doe dentist

personally knew of a need to do more but failed to do more. Accordingly, Claim 1 against

John Doe dentist will be dismissed for failure to state a claim.

Claim 2

Plaintiff further alleges that his problems in securing needed dental care have

been caused by Wexford’s ill-provision of services at his prison. Specifically, he

challenges Wexford’s widespread policies and customs of denying patients periodontal

exams, and delaying or denying access to needed specialists, dental care, or surgery.

(Doc. 1 at 6). Plaintiff alleges that as a result of Wexford’s policies, he has been unable to

access needed care for more than 2.5 years—including a cleaning, a root canal, and a

periodontal exam. Plaintiff bolsters his allegation of a policy or practice by his allegation

that the dentist told him Wexford would not approve a periodontal exam, as well as an

affidavit from a fellow inmate who alleges he has been denied a periodontal exam or care

for similar symptoms (Doc. 1 at 19, Aff. Antoine E. Ridley). These allegations contribute

to Plaintiff’s theory that Wexford has maintained a custom or policy of inadequate dental

care at his facility, which has personally deprived him of needed care. Although Monell

claims are difficult to prove and require significant evidence, the Court finds that at this

preliminary juncture, Plaintiff’s allegations are clear and well-supported, and they are

sufficient to proceed against Wexford on Claim 2.

Claim 3

In addition to Wexford, Plaintiff also faults Defendants Anthony Wills (the

Warden) and Latoya Hughes (the Director of IDOC) for the lack of dental care. He alleges

that these two have roles of authority that come with a duty to challenge customs and

policies and to provide adequate care. There is no respondeat superior liability under §

1983, so a leadership role is insufficient to demonstrate personal liability of these

defendants for Plaintiff’s dental care issues.

Plaintiff attempts to provide a more individualized link between his situation and

these defendants by alleging they have both been notified of his situation. As to

Defendant Hughes, he alleges she has been made aware of his need for care via an

emergency grievance, to which he alleges she turned a blind eye. Plaintiff provided the

Administrative Review Board (ARB’s) response to a July 2023 grievance about his dental

needs, which purports to be signed by Hughes. However, he did not provide the

underlying grievance, so the Court cannot determine the extent of the notice that Hughes

might have received about Plaintiff’s situation from this single document. Generally

speaking, the mere role of processing a grievance is insufficient to establish personal

liability under § 1983, and high-level administrators are allowed to delegate the provision

of medical care to medical staff. See e.g., Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011)

(the alleged mishandling of a grievance by an official who did not cause the underlying

conduct states no claim); Hayes v. Snyder, 546 F.3d 516, 527-28 (7th Cir. 2008) (“the

presumption that non-medical officials are entitled to defer to the professional judgment

of the facility’s medical officials on questions of prisoners’ medical care is a sound one.”)

Given that Plaintiff’s sole allegation is that Hughes was put on notice of his dental

issues by an emergency grievance, the Court finds that he has not stated a sufficient claim

against Hughes for personal involvement in any alleged harm. The mere processing of a

grievance is generally insufficient to support liability under § 1983, and prison officials

are allowed to defer to medical staff on medical issues, so the review of a single

emergency grievance in this case, without any information about the contents of the

underlying grievance, is insufficient to proceed against Hughes.

By contrast, Plaintiff alleges that he repeatedly notified Warden Mitchell of his

need for care and sent at least four letters to Mitchell about his situation.1 “An inmate's

1 The Court notes that a letter-writing campaign to a high-level prison official is not always sufficient to

form a basis for § 1983 liability, but here, given that the official was the Warden, and given the extent of

delays that Plaintiff alleges—he will be allowed to proceed for the time being. See, e.g., Burks v. Raemisch,

555 F.3d 592, 596 (7th Cir. 2009) (a letter writing campaign to prison officials is not sufficient to create

personal liability for a § 1983 claim).

correspondence to a prison administrator may ... establish a basis for personal liability

under § 1983 where that correspondence provides sufficient knowledge of a

constitutional deprivation.” Perez v. Fenoglio, 792 F.3d 768, 781–82 (7th Cir. 2015); see also

Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996) (“[A] prison official's knowledge of prison

conditions learned from an inmate's communications can, under some circumstances,

constitute sufficient knowledge of the conditions to require the officer to exercise his or

her authority and to take the needed action to investigate and, if necessary, to rectify the

offending condition.”). At this preliminary juncture, the Court reads the complaint

broadly and assumes that the letters provided Mitchell with sufficient details about

Plaintiff’s situation to warrant some kind of response. Ultimately, this claim against

Mitchell will rely heavily on the facts that are developed. If it becomes evident that

Mitchell responded to the letters, and/or delegated investigation of the matter to medical

professionals, or if it becomes evident he reasonably deferred to medical professionals,

then Plaintiff may ultimately be unable to substantiate this claim. For now, Plaintiff will

be allowed to proceed on Claim 3 against Defendant Mitchell, but not Defendant Hughes.

Motion for Recruitment of Counsel

Plaintiff has moved for recruited counsel (Doc. 3). In his motion he did not indicate

a level of education, but he alleged that he knows nothing about civil cases, and has

always received legal assistance. (Doc. 3 at 2). His Motion is accompanied by

correspondence with a variety of attorneys from whom he sought representation. (Doc.

3 at 3-4, 13-17). Plaintiff also included a memorandum in support of his request for

counsel wherein he explained his concerns about the complexity of his case, as well as

the challenges faced attempting to litigate a case while incarcerated.

There is no right to the appointment of counsel in civil matters. Romanelli v.

Suliene, 615 F.3d 847, 851 (7th Cir. 2010). When presented with a request to appoint

counsel, the Court must consider: “(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). Plaintiff has clearly attempted to retain

his own counsel, but this is not the end of the inquiry. At this very early juncture, Plaintiff

has done a sufficient job presenting his claims, and the next stages will involve the

exchange of basic information and will not yet include any of the complex tasks for which

Plaintiff expressed concern in his supporting memorandum. Based on the early status of

this litigation, the Court will deny Plaintiff’s motion without prejudice.

Disposition

IT IS HEREBY ORDERED THAT Claim 2 of the Complaint (Doc. 1) survives

against Defendant Wexford Health Sources, Inc., and Claim 3 survives against Defendant

David Mitchell. By contrast, Claim 1 is dismissed as insufficient against John Doe Dentist

and, Claim 3 is dismissed as insufficient against Defendant Latoya Hughes. The Clerk of

Court is DIRECTED to TERMINATE Defendants John Doe Dentist and Latoya Hughes,

for failure to state a claim.

The Clerk of Court is DIRECTED to prepare for Defendants: Defendants Wexford

Health Sources, Inc., and David Mitchell (individual and official capacities): (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 Complaint (Doc. 1), and this Memorandum and Order to Defendants’ place of

employment as identified by Plaintiff. 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 Defendant, and the

Court will require Defendant to pay the full costs of formal service, to the extent

authorized by the Federal Rules of Civil Procedure.

If a Defendant cannot be found at the work address provided by Plaintiff, the

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

known, the 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 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 Merits Review Order.

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

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

regardless of whether his application to proceed in forma pauperis was granted. See 28

U.S.C. § 1915(f)(2)(A).

Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk

of Court and each opposing party of any address changes; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later

than 14 days after a change of 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 failure to prosecute. FED. R. CIV. P. 41(b).

The Clerk of Court is DIRECTED to enter the standard HIPAA Order in this case

because it will involve the exchange of medical records.

Plaintiff’s Motion for Counsel (Doc. 3) is DENIED without prejudice. Plaintiff’s

Motion to Proceed IFP (Doc. 2) is DENIED as MOOT. Plaintiff paid the filing fee in this

matter, and stated that he only applied for IFP for the purpose of seeking counsel. While

the Court appreciates this logic, it has denied the motion for counsel, so the IFP Motion

is unnecessary at this time.

IT IS SO ORDERED.

Dated: January 3, 2024 /s David W. Dugan

________________________

DAVID W. DUGAN

United States District Judge

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 complaint. After service has been achieved,

the defendants will enter their appearance and file an Answer to the complaint. It will

likely take at least 60 days from the date of this Order to receive the defendants’ Answers,

but it is entirely possible that it will take 90 days or more. When all of 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 his time, unless otherwise directed by the Court.

The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles

that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but

it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening

only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some

relief. At trial, he will need to prove by a preponderance of evidence that the facts alleged

actually occurred and that those facts satisfy the legal requirements for recovery. Trial is

the highest and most difficult of hurdles for any Plaintiff to clear.