Crayton v. Wexford Health Sources Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEIMON CRAYTON,

Plaintiff,

v. Case No. 24-cv-1077-NJR

WEXFORD HEALTH SOURCES, INC.,

BOB BLUM, NURSE ALLY, P. MYERS,

HUNGATE, MAJOR MEZO, J.

BATHON, A. DESAI, SGT. DILLINER,

PETER MULHERN, CITY OF MT.

VERNON, CITY OF PINCKNEYVILLE,

SGT. SHIRTS,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Keimon Crayton, an inmate of the Illinois Department of Corrections who

is currently incarcerated at Pinckneyville Correctional Center, brings this action for

deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Crayton’s original

Complaint alleged that the defendants were deliberately indifferent in delaying medical

care of his injured shoulder in violation of the Eighth Amendment. But Crayton was

denied leave to proceed in forma pauperis (“IFP”) because he had three prior cases that

were dismissed on the grounds that they were frivolous, and Crayton failed to allege that

he was under imminent danger of serious physical injury (Doc. 10). He was directed to

pay the full filing fee or file an amended pleading that demonstrated imminent danger.

Crayton subsequently filed his Amended Complaint and Motion for Leave to

Proceed IFP (Docs. 11, 12). Crayton alleges that he faces imminent danger due to lacking

access to proper pain medications.

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).

In Forma Pauperis Motion

Section 1915(g) prohibits a prisoner from bringing a civil action or appealing a civil

judgment IFP “if the prisoner has, on 3 or more prior occasions, while incarcerated or

detained in any facility, brought an action or appeal in a court of the United States that

was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon

which relief may be granted, unless the prisoner is under imminent danger of serious

physical injury.” See 28 U.S.C. § 1915(g). As the Court previously noted (Doc. 10, p. 2),

Crayton has accumulated three “strikes” for purposes of Section 1915(g) and cannot

proceed IFP unless he is under imminent danger of serious physical harm. See 28 U.S.C.

§ 1915(g). See also Crayton v. DHS of Illinois, Case No. 22-cv-4053-MMM (C.D. Ill.

dismissed Apr. 14, 2022); Crayton v. East Moline Police Dep’t, Case No. 22-cv-4067-CSB

(C.D. Ill. dismissed June 21, 2022); Crayton v. Rock Island County Courthouse, Case No. 22-

cv-4070-CSB (C.D. Ill. dismissed June 21, 2022).

“Imminent danger” within the meaning of Section 1915(g) requires a “real and

proximate” threat of serious physical injury to a prisoner. Ciarpaglini v. Saini, 352 F.3d

328, 330 (7th Cir. 2003) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). Courts

“deny leave to proceed [as a pauper] when a prisoner’s claims of imminent danger are

conclusory or ridiculous.” Id. at 331 (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th

Cir. 2003)). Additionally, “[a]llegations of past harm do not suffice” to show imminent

danger; rather, “the harm must be imminent or occurring at the time the complaint is

filed,” and when prisoners “allege only a past injury that has not recurred, courts deny

them leave to proceed [as a pauper].” Id. at 330 (citing Abdul-Wadood v. Nathan, 91 F.3d

1023 (7th Cir. 1996)).

Here, Crayton alleges that he is in significant pain stemming from a recent

shoulder surgery. Although he received surgery for a condition with his shoulder, he still

experiences dislocations in the shoulder on a daily basis. He is still in pain from the

surgery, and Dr. Myers refuses to provide Crayton with his prescribed Tramadol. These

allegations are sufficient to establish imminent danger at this time.1 Thus, Crayton’s

renewed motion to proceed IFP (Doc. 12) is GRANTED, and he will be allowed to

proceed with this case.

1 This order authorizes Crayton to begin this litigation, but if a defendant challenges his

allegations of imminent danger, and it turns out his allegations are untrue, he may be required to

pay the full filing fee or face dismissal, and he may incur sanctions for filing a case that does not

ultimately qualify for the imminent danger prong of § 1915(g). See e.g., Jones v. Burle, 2022 WL

4008712, at * 2 (7th Cir. 2022) (not published).

The Amended Complaint

In the Amended Complaint, Crayton makes the following allegations: Crayton

suffers from a torn labrum in his left shoulder (Doc. 11, p. 1). He alleges that he has been

complaining about the injury since March 2023 (Id.). In April 2023, Dr. P. Myers ordered

an x-ray of the shoulder. He then referred Crayton to Dr. Peter Mulhern, an orthopedic

surgeon. Dr. Mulhern ordered an MRI scan of Crayton’s left shoulder. On February 12,

2024, Crayton received an MRI, and he met with Dr. Mulhern to review the findings a

week later. Dr. Mulhern determined Crayton suffered from a torn labrum (Id.).

Although Dr. Mulhern diagnosed Crayton with a torn labrum, Crayton alleges

that Dr. P. Myers and A. Desai initially reported that they did not have the medical report

from Dr. Mulhern and could not schedule any additional care. Crayton believes that their

statements were lies because he had already spoken with Dr. Mulhern. Further, Crayton

contends that the medical record from the specialist is always given to the officers who

accompany an inmate on furlough to give to the prison medical team (Id. at p. 2). All

Crayton was provided upon his return from the specialist was Naproxen for his pain (Id.

at p. 2). Although he alleges that prison medical staff said they could not do anything

further for him, Crayton acknowledges that he received surgery for his injury. In fact, on

March 26, 2024, Dr. Mulhern performed surgery on Crayton’s shoulder. But Crayton

alleges that Dr. Mulhern did not perform a repair of the torn labrum. Instead, he merely

cleaned out scar tissue (Id.). Crayton alleges that Dr. Mulhern’s decision not to repair the

tear left him with additional pain. He also suffers from daily shoulder dislocations (Id.).

Crayton asked Dr. Mulhern to repair the tear, but Dr. Mulhern declined.

After the surgery, Crayton was transported back to Pinckneyville in a sling (Id.).

Crayton was placed in the receiving wing of the prison for one day and then ordered back

to his original cell in a general population housing unit (Id. at pp. 2-3). On March 27, 2024,

Crayton spoke with Officer Hungate and Sergeant Dilliner about his shoulder pain (Id. at

p. 3). He noted that he was in excruciating pain and that it was painful to walk up and

down the stairs to his second-floor cell (Id.). Both officers indicated that they would speak

with the healthcare unit about moving Crayton to a cell on the first floor (Id.). Although

he waited all day for a response, he did not receive one. Later that day, Lieutenant

J. Bathon saw Crayton in the dayroom and directed him to return to his cell. Crayton

explained that he was waiting on a response to his request for a new cell, but Bathon

stated he did not know anything about Crayton’s condition or his request for a transfer

to another cell (Id.). He instead told Crayton that he needed to return to his cell on the

second floor (Id.).

Also on March 27, 2024, Crayton was prescribed the pain medication Tramadol by

Blum (Id. at p. 3). Crayton informed both Blum and Dr. Myers that the medication did

not completely eliminate his pain, but it did help to ease it (Id.). Blum prescribed

Tramadol from March 26, 2024, through April 2, 2024 (Id.). On April 1, 2024, Nurse Ally

denied Crayton his noon medication, informing Crayton that his prescription expired.

On April 2, 2024, she again denied Crayton his morning and noon medications (Id.).

Crayton believes that her statements were lies and that she delayed his access to pain

medications (Id. at pp. 3-4).

On April 8, 2024, Crayton again met with Blum, who renewed his Tramadol

prescription (Id. at p. 4). On April 10, 2024, Nurse Ally told Sergeant Shirts and Officer

Hersley not to let Crayton out of his cell to obtain his morning pain medication (Id.).

Nurse Ally lied, saying that the doctor forgot the pain medications. Crayton got in a

confrontation with Nurse Ally, calling her a liar, and Sergeant Shirts intervened, telling

Crayton to move away (Id.). He tried to explain his predicament to Major Mezo, but she

told him to talk with Sergeant Shirts about his medical needs. Crayton also tried to

complain to Lieutenant Bathon about Nurse Ally refusing to provide his pain medication,

but Bathon ignored him. Sergeant Shirts later informed Bathon that Crayton tried to hide

the medication in his sling. Bathon discussed the issue with Nurse Ally and then

informed Crayton that he would not receive his medications that day (Id. at p. 5).

On April 12, 2024, Crayton had a follow-up with Dr. Mulhern (Id. at p. 5). Crayton

asked for his torn labrum to be repaired, but Dr. Mulhern declined the request. He

renewed Crayton’s Tramadol prescription for one month—until his next follow-up

appointment (Id.). Upon his return to Pinckneyville, Dr. Myers indicated that he did not

receive the medical report and would not renew the prescription until he received

Dr. Mulhern’s report. Crayton alleges that Dr. Myers lied to him because Dr. Myers

opened the envelope from Dr. Mulhern in front of Crayton (Id.). Dr. Myers claimed he

did not receive a prescription from Dr. Mulhern. Crayton alleges that Blum approves

Crayton’s pain medication, but only for a week at a time, and sometimes delays the

prescription for an entire week. Crayton alleges that he is in constant pain and the

Tramadol, when he receives it, only lowers the pain slightly (Id.). He also suffers from

dislocations in his shoulder daily, causing him additional pain (Id.).

Preliminary Dismissals

Simply put, Crayton fails to state a Fourteenth Amendment due process claim

against any defendant. Crayton alleges that upon his return from surgery, he should have

been housed in an ADA cell due to his surgery. He alleges that Dr. Myers, Major Mezo,

Lieutenant Bathon, Hungate, and Dilliner failed to assign him to a cell or correct his cell

assignment when he complained of pain and difficulties reaching his second-floor cell in

general population (Doc. 11, p. 7). Although Crayton takes issue with his cell assignment

after his return from surgery, an inmate does not have a due process interest in his cell

assignment. Owens v. Funk, 760 F. App’x 439, 443 (7th Cir. 2019) (citing DeTomaso v.

McGinnis, 970 F. 2d 211, 212 (7th Cir. 1992)). He also fails to allege that the officials acted

with deliberate indifference in failing to assign him to an ADA cell.

Crayton also fails to state a common law fraud claim against Hungate, Dilliner,

Nurse Ally, A. Desai, and Major Mezo. He alleges that these individuals lied to him about

receiving medical records and/or reviewing instructions in his medical records. But

Crayton merely states in conclusory fashion that their actions amounted to fraud. He fails

to allege all of the requirements for a state law fraud claim. Cramer v. Ins. Exch. Agency,

675 N.E.2d 897, 905 (Ill. 1996) (quoting Siegel v. Levy Organization Development Co., 607

N.E.2d 194 (Ill. 1992)) (elements of common law fraud include “(1) a false statement of

material fact; (2) the party making the statement knew or believed it to be untrue; (3) the

party to whom the statement was made had a right to rely on the statement; (4) the party

to whom the statement was made did rely on the statement; (5) the statement was made

for the purpose of inducing the other party to act; and (6) the reliance by the person to

whom the statement was made led to that person's injury.”). Thus, any fraud claim is also

DISMISSED without prejudice.

Crayton also lists Wexford Health Sources, Inc. as a defendant but fails to include

any allegations against the company. He simply states that Wexford violated his due

process rights and committed fraud. But Wexford can only be liable if it had a policy or

practice that caused the constitutional deprivation alleged in the pleading. Howell v.

Wexford Health Sources, Inc., 987 F.3d 647, 653-4 (7th Cir. 2021); Woodward v. Corr. Med.

Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004) (corporation can be held liable for

deliberate indifference if it had a policy or practice that caused the violation). Crayton

fails to point to any such policy or practice. Thus, any claim against Wexford is also

DISMISSED without prejudice.

Crayton also fails to state a claim against Nurse Ally, Sergeant Shirts, Officer

Hersley, Bathon, and Major Mezo for his lack of access to medication in April 2024.

Although he alleges that there was a dispute as to whether Crayton was trying to hide

the medications or whether Nurse Ally simply denied him access to the medication, the

denial of medications on two occasions does not amount to deliberate indifference.2

2 Crayton’s claims regarding his access to medications on a few isolated dates also does not meet

the imminent danger standard. It is a past harm that does not appear to have reoccurred. The

only claim that appears to be ongoing is the complete denial of Crayton’s access to Tramadol due

to the failure to renew the prescription.

Crayton also lists the City of Mt. Vernon and City of Pinckneyville, Illinois, as

defendants in his case caption. But he fails to include any allegations against them in the

statement of his claim and thus any such claims against the cities are DISMISSED

without prejudice.

Finally, Crayton fails to state a claim against Dr. Mulhern, the physician who

performed the shoulder surgery. A private medical provider may be liable for

constitutional deprivations under Section 1983 in certain situations. See West v. Atkins,

487 U.S. 42 (1988) (holding that a physician who is under contract with the State to

provide medical services to inmates acts “under color of state law” within the meaning

of Section 1983). But even assuming Dr. Mulhern acted under the color of state law, the

allegations do not suggest deliberate indifference on Dr. Mulhern’s part. Dr. Mulhern

ordered an MRI of Crayton’s shoulder, conducted surgery on his shoulder, prescribed

Crayton with medication, and continues to follow-up with Crayton on his condition.

Although Crayton argues that he did not receive the surgery that he wanted or thought

would be most effective, his mere disagreement with the surgeon does not amount to

deliberate indifference. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010); Snipes v.

DeTella, 95 F.3d 586, 591 (7th Cir.1996). Thus, any potential claim against Dr. Mulhern is

also DISMISSED without prejudice.

Discussion

Based on the allegations in the Amended Complaint, the Court finds it convenient

to designate the following count:

Count 1: Eighth Amendment claim for deliberate indifference to a

serious medical need against Bob Blum, Dr. P. Myers, and A.

Desai for denying and/or delaying Crayton’s access to pain

medications.

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.3

At this stage, Crayton states a viable claim against Dr. P. Myers for denying

Crayton access to pain medications. Crayton adequately alleges that Dr. Myers is

currently denying him access to adequate pain medications, including his access to

Tramadol. Although Crayton also refers to previous conduct of Dr. Myers, including his

delay in providing him with care, the allegations show that Dr. Myers referred Crayton

for a professional second opinion and adopted the recommendations of Dr. Mulhern

(Doc. 11, pp. 1-2). Nothing in the Amended Complaint suggests that Dr. Myers acted with

deliberate indifference in treating Crayton’s injury, other than possibly with his current

actions in denying Crayton access to prescription pain medications. Further, to the extent

Crayton takes issue with Dr. Myers’s initial diagnosis and adoption of Dr. Mulhern’s

report and diagnosis, these are all past harms that do not meet the imminent danger

3 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”).

exception. Crayton also alleges that B. Blum prescribed him Tramadol but only

periodically, one week on and one week off. Crayton alleges that Blum’s failure to

provide him with a continuous prescription leaves him in continued pain (Id. at p. 5).

Thus, Crayton also states a claim against Blum for deliberate indifference.

As to A. Desai, however, Crayton fails to state a claim. Crayton alleges that he has

informed Desai that Tylenol, Motrin, and Naproxen do not help his shoulder pain. He

does not indicate when he last spoke to A. Desi or whether he has any current interaction

with her. He only alleges that he spoke to A. Desai one week after his initial appointment

with Dr. Mulhern, prior to his surgery, and A. Desai informed him that she did not have

Dr. Mulhern’s report (Doc. 11, p. 2). Although he believes she lied, nothing in the

pleading demonstrates that she acted with deliberate indifference. Crayton received his

Tramadol prescription and his surgery. Thus, any claim against A. Desai is DISMISSED

without prejudice.

Injunctive Relief

Crayton’s request for relief requests a preliminary and permanent injunction for

access to his prescribed pain medication and assignment to an ADA cell. Although

Crayton seeks a preliminary injunction, he has not filed a separate motion for injunctive

relief or demonstrated in his pleading that he is entitled to such relief. Planned Parenthood

v. Commissioner of Indiana State Dep’t Health, 699 F.3d 962, 972 (7th Cir. 2012) (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.). Thus, his

request for a preliminary injunction is DENIED. To the extent Crayton seeks a

preliminary injunction, he would need to file a separate motion demonstrating his

entitlement to such relief.

Disposition

For the reasons stated above, Count 1 shall proceed against Bob Blum and

Dr. P. Myers. All other claims and defendants are DISMISSED without prejudice.

The Clerk of Court shall prepare for Defendants Bob Blum and Dr. P. Myers:

(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 (Doc. 11), and this Memorandum and Order to each

defendant’s place of employment as identified by Crayton. 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 Crayton,

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. Section

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 Crayton, 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(£)(2)(A).

Finally, Crayton 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 14 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: May 16, 2024

NANCY J. ROSENSTENGEL |

Chief U.S. District Judge

13

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.