“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.”
How later courts described this case
- “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.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DELVON BROWN,
#Y49809,
Plaintiff, Case No. 24-cv-00477-SPM
v.
NURSE ANGIE,
NURSE MORGAN,
MS. AHRING,
SERGEANT MAUE,
JOHN DOE 1,
CONNIE DOLCE, and
WEXFORD HEALTH SOURCE,
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
Plaintiff Delvon Brown, an inmate of the Illinois Department of Corrections who is
currently incarcerated at Menard Correctional Center (“Menard”), brings this civil action pursuant
to 42 U.S.C. § 1983 for violations of his constitutional rights. The Complaint is now before the
Court for preliminary review pursuant to 28 U.S.C. § 1915A. Under Section 1915A, any portion
of a complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or requests money damages from a defendant who by law is immune from such relief
must be dismissed. See 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 on November 12, 2023, he started to feel ill. (Doc. 1). He wrote six
sick call slips informing nurses that he had been vomiting and losing a lot of weight, but he did
not receive any medical attention. At some point, he was transferred to segregation. While in
segregation, Plaintiff repeatedly informed Correctional Officer John Doe, known as “E,” that he
was throwing up blood. John Doe came to Plaintiff’s cell and saw the blood on the floor. John Doe
told Plaintiff he would “get someone,” but he never came back. Plaintiff also told Nurse Angie, as
she was passing out medication, that he was throwing up blood and was feeling ill. Nurse Angie
said she would be back, but she did not return. Plaintiff states that “this went on for six days.”
Plaintiff was moved to a different cell, and he continued to write grievances seeking
medical attention, but he did not receive a response. Plaintiff gave three sick call slips to Nurse
Morgan. Plaintiff asked her if he was going to be seen by someone, she responded, “I don’t make
those decisions I don’t even read the sick calls.”
On February 10, 2024, Plaintiff woke up throwing up blood, and he alerted his gallery
officers, Ms. Ahring. Ahring came to his cell with Sergeant Maue, and they saw the blood in his
paper cup and on the floor. Plaintiff told her he was in pain and felt like he was slowly dying.
Ahring responded, “Maybe you is,” and walked away from the cell. Ahring and Maue did not
return.
Plaintiff states that he has written several letters to the healthcare unit and Connie Dolce,
the head nurse, about his medical issue. As of filing the Complaint, he still does not know what is
wrong with his health. Plaintiff seeks medical treatment and monetary damages.
DISCUSSION
Based on the allegations of the Complaint, the Court finds it convenient to designate the
following count:
Count 1: Eighth Amendment deliberate indifference claim against
Defendants for denying Plaintiff medical care for his ongoing
illness.
The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be considered dismissed without prejudice
as inadequately pled under the Twombly1 pleading standard.
Count 1 will proceed against Nurse Angie, Nurse Morgan, Ms. Ahring, Sergeant Maue,
John Doe, and Connie Dolce.
Count 1 is dismissed without prejudice as to Wexford Health Source. As a corporation,
Wexford can only be liable for an unconstitutional policy or practice. 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.”). Plaintiff fails to point to any such policy or practice that caused
him to be denied care by medical staff at Menard.
MOTIONS FOR RECRUITMENT OF COUNSEL
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3), which is DENIED.2
Plaintiff has not provided any information regarding his attempts to obtain a lawyer himself prior
to seeking assistance from the Court. Thus, Plaintiff has failed to meet his threshold burden of
making a “reasonable attempt” to secure counsel. See Santiago v. Walls, 599 F.3d 749, 760 (7th
Cir. 2010). Should Plaintiff choose to move for recruitment of counsel at a later date, the Court
directs Plaintiff to: (1) contact at least three attorneys regarding representation in this case prior to
filing another motion; (2) include in the motion the names and address of at least three attorneys
he has contacted; and (3) if available, attach the letters from the attorneys who declined
1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
2 In evaluating Plaintiff’s Motions for Recruitment of Counsel, the Court applies the factors discussed in Pruitt v.
Mote, 503 F.3d 647, 654 (7th Cir. 2007) and related authority.
representation.
LETTER
Plaintiff has filed a letter complaining about constitutional violations that have occurred
since initiating this civil suit. (Doc. 11). He states that he was falsely accused of flashing and placed
in segregation for twenty-eight days without his property, sheets, or a blanket. In segregation,
Plaintiff asked to speak with a mental health care provider because a family member had died, but
his request was denied. Plaintiff is now in West House and is being denied yard time, access to
phones and grievance boxes, denied visitation privileges, and not allowed to go to the law library.
At any given time, his water is turned off, and he has been sprayed in the face with mace. Plaintiff
asks for help.
The Court construes the letter as a motion for a preliminary injunction, and the motion is
DENIED. In order to obtain a preliminary injunction, Plaintiff must demonstrate that: (1) his
underlying case has some likelihood of success on the merits; (2) no adequate remedy at law exists;
and (3) he will suffer irreparable harm without the injunction. Woods v. Buss, 496 F.3d 620, 622
(7th Cir. 2007). A preliminary injunction is “an extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997). Additionally, “a preliminary injunction is appropriate
only if it seeks relief of the same character sought in the underlying suit, and deals with a matter
presented in that underlying suit.” Daniels v. Dumsdorff, No. 19-cv-00394, 2019 WL 3322344 at
*1 (S.D. Ill. July 24, 2019) (quoting Hallows v. Madison Cty. Jail, No. 18-cv-881-JPG, 2018 WL
2118082, at *6 (S.D. Ill. May 8, 2018) (internal citations omitted)). See also Devose v. Herrington,
42 F.3d 470, 471 (8th Cir. 1994); Bird v. Barr, 19-cv-1581 (KBJ), 2020 WL 4219784, at *2 (D.C.
Cir. July 23, 2020) (noting that a court “only possesses the power to afford preliminary injunctive
relief that is related to the claims at issue in the litigation”).
Here, Plaintiff does not seek relief related to the allegations in his case. Plaintiff is
proceeding on a claim of deliberate indifference for the denial of medical care for his illness, and
he now requests emergency injunctive relief based on new allegations that have occurred since
filing the Complaint. These new assertions are not associated with any named Defendant and do
not have to do with his medical care. A motion for a preliminary injunction is not a proper avenue
for Plaintiff to add claims and individuals to this lawsuit. Accordingly, his request for help from
the Court regarding these new issues is denied.
INJUNCTIVE RELIEF AND UNKNOWN DEFENDANT
Plaintiff will be allowed to proceed with Count 1 against John Doe, but this defendant
must be identified by first and last name before service of the Complaint can be made on him or
her. Plaintiff will have the opportunity to engage in limited discovery to ascertain the identity of
John Doe. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). The Clerk
of Court will be directed to add Warden Anthony Wills as a defendant in his official capacity for
the purpose of responding to discovery aimed at identifying the unknown defendant and
implementing any injunctive relief that may be ordered. Once the Warden has entered an
appearance, the Court will provide further instructions and deadlines for identifying the John Doe.
Plaintiff is advised that it is ultimately his responsibility to identify the John Doe.
DISPOSITION
For the reasons stated above, the Complaint survives preliminary review pursuant to
Section 1915A. COUNT 1 will proceed against Nurse Angie, Nurse Morgan, Ms. Ahring,
Sergeant Maue, John Doe, and Connie Dolce. All claims against Wexford Health Source are
DISMISSED. The Clerk of Court is DIRECTED to terminate Wexford as a defendant. The Clerk
of Court is DIRECTED to ADD Anthony Wills, the Warden of Menard, as a defendant in his
official capacity for the purposes of responding to John Doe discovery and implementing any
injunctive relief that may be ordered.
Because Plaintiff’s claims involve his medical care, the Clerk of Court is DIRECTED to
enter the standard qualified protective order pursuant to the Health Insurance Portability and
Accountability Act.
The Clerk of Court SHALL prepare for Angie, Morgan, Ahring, Maue, John Doe (once
identified), Dolce, and Warden Wills (official capacity) the following: (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, and this
Memorandum and Order to defendants’ place of employment. 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 the defendant, and the
Court will require the defendant 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 Plaintiff, the
employer shall furnish the Clerk with the defendant’s current work address, or, if not known, his
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 should respond to the issues stated in this Merit
Review Order.
Finally, Plaintiff 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 21, 2024
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
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.