Howard v. Crain

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JEROME HOWARD, K68777, )

)

Plaintiff, )

)

vs. )

) Case No. 23-cv-3776-DWD

ANGELA CRAIN, )

WEXFORD HEALTH SOURCE, )

WILLIS,1 )

JOHN DOE, )

JANE DOE, )

DEARMOND, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Jerome Howard, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Menard Correctional Center (Menard), 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 denied him medical care when they

did not provide him with appropriate doses of pain medication after he had surgery on

his right hand/wrist in 2022.

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

1 The Clerk of Court is DIRECTED to correct CM/ECF to show Defendant Willis as Defendant Wills—it

appears that Plaintiff’s complaint contains two spellings—Wills and Willis—but from familiarity with

litigation at Menard, the Court believes the Warden to be Wills.

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 began to have problems with his right hand/wrist in 2021. Eventually,

he was sent to outside providers, and he was scheduled for a surgical procedure. (Doc.

1 at 11). On September 14, 2022, Plaintiff had a right carpal tunnel release and a right

wrist mass excision. (Doc. 1 at 11). He was prescribed tramadol for his pain, which was

to be given once in the morning and once at night. Plaintiff was discharged from the

prison’s medical unit on September 15, 2022, and at that point he began to only receive

his medication at night, but not in the mornings. Plaintiff informed the healthcare unit

of his need for the pain medication to be dispensed as prescribed, but writing the

healthcare unit did not help. He alleges that based on his writing, Defendant Angela

Crain (the healthcare unit administrator) knew or should have know that he was not

receiving needed care and opted not to correct the problem. He further states that Crain

was responsible for managing the healthcare unit and implementing policies to manage

it, so she is responsible for a failure in medication administration. Plaintiff also alleges

that Defendant Dearmond (a nurse practitioner) prescribed his medication when he

returned from surgery, he wrote her about missed doses, and she knew or should have

known of the medication issue but did not assist him.

In addition to Dearmond and Crain, Plaintiff alleges that each day from September

16-20, 2022, he told the John Doe (the first shift sergeant in the North upper cellhouse)

about his ongoing pain and the misadministration of his medication, but John Doe

refused to offer assistance. Plaintiff also alleges that he told the “Jane Doe” “nurse/med

tech” of his medication issues each morning during cellhouse medication rounds. It is

not entirely clear if the Jane Doe refers to a single individual, or if it refers to a rotating

group of individuals. He alleges that this person/these people refused to assist him.

On September 19, 2022, Plaintiff wrote an emergency grievance about the lack of

his medications, which Defendant Wills deemed an emergency on September 21, 2022.

(Doc. 1 at 16-17). Plaintiff alleges that the grievance put Wills on notice of his need for

care, and that Wills “took no action,” or “turned a blind eye” to his serious medical need.

(Doc. 1 at 12).

Plaintiff also names Wexford Health Source as a defendant, and he alleges that

Wexford “has a practice in place amongst its staff where it prolongs and denies access to

medical care to inmate, so Wexford can save money.” (Doc. 1 at 13).

Plaintiff seeks compensatory and punitive damages, as well as an injunction

preventing any future deprivations of his rights. (Doc. 1 at 15). In support of his

complaint, Plaintiff tendered his emergency grievance, and medical records. The

grievance was deemed an emergency on September 21, 2022, by Defendant Wills, and it

was transmitted to the grievance office for processing. On October 11, 2022, Defendant

Angela Crain prepared a memo for the grievance officer on Plaintiff’s allegations. Crain

confirmed that per medical administration records (MAR), Plaintiff received a morning

dose of his pain medication on September 15, 2022, but he did not receive morning doses

again until September 21, 2022. (Doc. 1 at 19). Based on Crain’s memorandum, the

grievance officer and the Warden affirmed Plaintiff’s grievance. (Doc. 1 at 18). The

Administrative Review Board also affirmed the grievance and directed Menard staff to

review administrative directives on control of medication. (Doc. 1 at 20).

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

claims:

Count 1: Eighth Amendment deliberate indifference claim against

Defendants Crain, Dearmond, Jane Doe for denying

Plaintiff his prescribed pain medications in the morning

from September 15, 2022-September 21, 2022;

Count 2: Eighth Amendment deliberate indifference claim against

John Doe sergeant for refusing to assist Plaintiff in securing

his medications;

Count 3: Eighth Amendment claim against Warden Wills for his

response to Plaintiff’s grievance about his missed

medication doses;

Count 4: Monell claim against Wexford for maintaining a policy that

promotes delaying treatment to save money.

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 he missed his morning pain medication for 3-4 days after wrist

surgery. He attempted to notify the medical unit of his missed doses to no avail. He

alleges that Defendants Crain and Dearmond either knew via his communications, or

should have known, that he was not receiving the medication as prescribed, and that he

was suffering in pain. Not all missed doses of medication rise to the level of an Eighth

Amendment violation but at this preliminary juncture, the allegations are sufficient to

proceed. See e.g., Cherry v. Alsteen, 858 Fed. App’x 189, 191-92 (7th Cir. 2021) (a missed

dose of medication that resulted in hours of needless suffering in pain may rise to the

level of an Eighth Amendment violation if plaintiff can establish deliberate indifference

by an individual actor). Plaintiff will be allowed to proceed against Crain and Dearmond

at this juncture on the premise that he notified them via written communication that he

was in pain and was missing doses of his prescribed post-surgical medication, but they

did not assist him.

However, to the extent that Plaintiff alleges Defendant Crain should be held liable

solely because she held a supervisory role over the medical unit, this allegation is

insufficient because there is no respondeat superior liability under § 1983.

As to the Jane Doe defendant or defendants, Plaintiff certainly may have a claim

against this individual or these individuals for ignoring his requests for his prescribed

pain medication during medication rounds, but he has not provided sufficient

information to personally identify these potential defendants because it is unclear if he is

talking about just one nurse he saw every day, or if he is talking about three or four

different individuals. Section 1983 liability relies on personal responsibility for discrete

actions, so specificity is key. To proceed against “Doe” defendants, the Court would at

least need to be able to discern how many individuals must be identified.

Claim 2

Plaintiff alleges that John Doe sergeant was a first shift sergeant from September

16-20, 2022, in the North uppers cellhouse. Each day, Plaintiff informed John Doe that he

had not received his morning doses of his prescribed medication and that he was

suffering in pain, but John Doe sergeant refused to assist him. At this early juncture,

these allegations are sufficient to proceed, so the Warden of Menard will be served in this

case to assist with identifying John Doe sergeant.

Claim 3

Plaintiff alleges that Defendant Wills should be held responsible for his missed

medication doses because he sent him an emergency grievance about the issue. While a

prison official can be held liable in some circumstances for turning a blind eye to an

inmate’s plight, there is no evidence that Wills turned a blind eye here. In fact, Plaintiff’s

own exhibits show that Wills deemed Plaintiff’s grievance an emergency on September

21, 2022, which expedites the processing of the grievance, and on the same day that the

grievance was expedited, Plaintiff’s medication issue was resolved. (Doc. 1 at 16-19). By

the time Wills signed off on the fully processed grievance, Plaintiff’s medication has been

restored. Based on these facts, Plaintiff cannot maintain that Wills turned a blind eye or

could have done more to assist him.

Claim 4

Plaintiff further alleges that his medication dosage problems were caused by

Wexford’s policy of delaying care to save money. Wexford is a private corporation that

cannot be held liable under § 1983 unless the constitutional violation was caused by an

unconstitutional policy or custom of the corporation itself. Shields v. Illinois Dept. of

Corrections, 746 F.3d 782, 789 (7th Cir. 2014); see also Monell v. Department of Social Services

of City of New York, 436 U.S. 658 (1978). Thus, under Monell, for Plaintiff to recover from

Wexford, he must show that the alleged constitutional violation was caused by: (1) an

express policy that caused a constitutional deprivation when enforced; (2) a widespread

practice that was so permanent and well-settled that it constituted a custom or practice;

or (3) a person with final policymaking authority. Dean v. Wexford Health Sources, Inc., 18

F.4th 214, 235 (7th Cir. 2021). Monell claims are difficult to prove, and a key component

of a Monell claim is a causal link between the identified policy and the injury sustained.

A plaintiff must show that “Wexford itself directly caused the constitutional violation.”

Dean, 18 F.4th at 239. “The rigorous causation standard requires a direct causal link

between the challenged municipal action and the violation of the plaintiff’s constitutional

rights.” Id. at 236 (internal citations omitted).

Here, Plaintiff’s allegation against Wexford is threadbare and has no apparent tie

to the issue he encountered with his medication. He does nothing to explain how

Wexford was aware of or involved in his medication delays. Accordingly, his claim

against Wexford is dismissed as insufficient.

Motion for Recruitment of Counsel

Plaintiff has moved for recruited counsel (Doc. 3). In his motion he alleges that he

as a high school education, but he needs assistance with his case because he does not have

any knowledge of civil litigation. (Doc. 3 at 2). He also avers that he has made efforts to

contact at least eight attorneys, but he has not secured his own counsel. (Doc. 3 at 7-8).

Plaintiff also included a memorandum in support of his request for counsel wherein he

explained his concerns about the complexity of his case. 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.

John Doe sergeant

As explained above, Claim 2 may proceed against John Doe sergeant, and the

Warden of Menard (Anthony Wills) will be served in his official capacity only to assist

Plaintiff with identifying John Doe sergeant. Anthony Wills will not be required to file

a formal answer in this case.

Plaintiff is DIRECTED within 21 days of this Order to file a Notice containing any

additional information he has about the identify of John Doe sergeant, including but not

limited to: physical description(s), specific job assignment(s), partial

name(s)/nickname(s), and locations and dates where Plaintiff interacted with the John

Doe(s).

As soon as Warden Wills returns an executed waiver of service and counsel

appears on his behalf, counsel is DIRECTED to produce to Plaintiff the identity of the

John Doe(s) or, if Defendant is unable to make a specific identification, any document or

information which would assist in the identification of the John Doe(s); Defendant is not

required to produce photographs of employees or inmates. Counsel shall complete this

step within 21 days of entering his or her appearance.

Plaintiff shall have until March 4, 2024, to file a motion to substitute specific

Defendant(s) for the John Doe(s) or, if the John Doe(s) remain unidentified, to file a

motion specifying additional steps that can be taken to identify the John Doe(s). Failure

to file a motion to substitute by this date will result in the dismissal of the John Doe(s)

without prejudice.

Disposition

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

against Defendants Angela Crain and Dearmond, and Claim 2 survives against

Defendant John Doe sergeant. By contrast, Claim 1 is dismissed as insufficient against

Jane Doe, Claim 3 is dismissed as insufficient against Anthony Wills, and Claim 4 is

dismissed against Wexford Health Sources. The Clerk of Court is DIRECTED to

TERMINATE Defendants Jane Doe and Wexford Health Sources because no claims

remain against these parties.

The Clerk of Court is DIRECTED to prepare for Defendants: Angela Crain,

Dearmond, and Anthony Wills (official capacity only to help identify John Doe sergeant):

(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 is DIRECTED to file a Notice about John Doe sergeant’s identity with the

Court by January 25, 2024. Warden Wills is DIRECTED to respond to Plaintiff’s Notice

and Complaint concerning John Doe sergeant within 21 days of entering an appearance,

or within 21 days of Plaintiff’s Notice (whichever date comes first). Plaintiff must move

to substitute a named party for John Doe sergeant by March 4, 2024.

The Clerk of Court is DIRECTED to update the docket sheet consistent with

footnote 1.

IT IS SO ORDERED.

Dated: January 30, 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.