Dzbik v. Hughes

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

WALDEMAR DZBIK, )

M49560, )

)

Plaintiff, )

)

vs. ) Case No. 3:24-cv-00093-GCS

)

PERCY MYERS, )

WEXFORD, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff Waldemar Dzbik, an inmate of the Illinois Department of Corrections

(“IDOC”) currently detained at Centralia Correctional Center (“Centralia”), brings this

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

constitutional rights. (Doc. 1). The Court found his original complaint insufficient to state

a claim, and he has now filed a timely Amended Complaint. (Doc. 13). Plaintiff alleges

deliberate indifference to his ventral hernia.

The Amended Complaint (Doc. 13) is now before the Court for preliminary review

pursuant to 28 U.S.C. § 1915A.1 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

1 The Court has jurisdiction to resolve Plaintiff’s motions and to screen his Complaint due

to his consent to the full jurisdiction of a magistrate judge (Doc. 7) and the limited consent to the

exercise of magistrate judge jurisdiction as set forth in the Memoranda of Understanding between

the IDOC, Wexford, and this Court.

which relief may be granted, or asks for 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. See Rodriguez

v. Plymouth Ambulance Service, 577 F.3d 816, 821 (7th Cir. 2009).

THE COMPLAINT

Plaintiff alleges that he has a ventral hernia that causes him severe pain, even while

resting. (Doc. 13, p. 5). The only treatment he has received is 500mg of Tylenol to address

his pain. He alleges he has repeatedly sought care for his hernia to no avail. Historically,

in 2021 he had a CT scan and was referred for future treatment. In the amended complaint

and in attached grievance documentation, there are indications that Plaintiff was

supposed to have surgery at some point in 2021 or 2022, but the surgery never occurred.

(Doc. 13, p. 5, 10). Plaintiff alleges that in his repeated efforts to seek care, he has been

seen by Defendant Dr. Percy Myers, but Myers has refused to listen to what he has to say

about his hernia, and Myers has offered no options for care. (Doc. 13, p. 5). The grievance

documentation also suggests that in July of 2023, a grievance investigation concluded that

Plaintiff still had a need for care, and the grievance officer was informed that the

healthcare unit administrator was “trying to get the issue resolved.” (Doc. 13, p. 10).

Plaintiff also included limited medical records, one which indicates a 2022 referral for

surgery. (Doc. 13, p. 24).

Plaintiff seeks hernia surgery, and compensatory and punitive damages. (Doc. 13,

p. 8).

Based on the allegations in the Amended Complaint, the Court designates the

following claim:

Claim 1: Eighth Amendment deliberate indifference claim against

Dr. Myers for refusing to address or treat Plaintiff’s ventral

hernia.

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 claim that is mentioned

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

prejudice as inadequately pled under the Twombly pleading standard. See Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that 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”).

PRELIMINARY DISMISSAL

Plaintiff identified Wexford in the case caption, but other than alleging that

Wexford employs Dr. Myers, he has not made any allegations about Wexford. As a

corporation, Plaintiff would need to allege that Wexford employed a custom, policy, or

practice that caused a violation of his constitutional rights. His pleading is insufficient to

establish any of these things, so Wexford is dismissed without prejudice.

DISCUSSION

An Eighth Amendment claim arising from the delay or denial of medical care

requires a two-part showing. A plaintiff must show that he had an objectively serious

medical need, and the defendants were deliberately indifferent to his need. See Brown v.

Osmundson, 38 F.4th 545, 550 (7th Cir. 2022). Deliberate indifference is a high bar; it

requires a showing of something approaching total unconcern for the prisoner’s welfare

in the face of a serious risk. Id. Relevant evidence might include: the obviousness of the

risk, the defendant’s persistence in an ineffective course of treatment, proof that the

course of treatment radically departed from professional norms, or proof that an

inexplicable delay served no penological purpose. See Thomas v. Martija, 991 F.3d 763, 768

(7th Cir. 2021). With a claim of delay, a court considers the seriousness of the injury, the

length of the delay, and whether the delay made the injury worse. Id. at 769.

At this juncture, Plaintiff’s allegations against Dr. Myers are sufficient to proceed

under a theory of deliberate indifference to his medical needs concerning his ventral

hernia.

One further item is worth mentioning. At the outset of the case, Plaintiff moved

for recruited counsel on the premise that he spoke Polish and knew very little English.

(Doc. 3). The Court denied his motion for counsel because the case was still in its infancy

and simply required a basic explanation of the facts. Along with the Amended

Complaint, a fellow inmate submitted an affidavit indicating he provided Plaintiff with

one-time assistance drafting his amended pleading, but that he would not assist any

further, so he thought it best that the Court appoint counsel. (Doc. 13, p. 7). The fellow

inmate also submitted a letter on the same topic and suggested Plaintiff was being

prevented from accessing the Court. (Doc. 14). Although the language barrier and access

to the Court is important, the Court will not appoint counsel at this time because the case

still requires only the most basic and routine exchange of information that will be guided

by court orders. If Plaintiff believes he still needs counsel, he should file a new motion

for counsel.

DISPOSITION

IT IS HEREBY ORDERED THAT Claim 1 of the Amended Complaint (Doc. 13)

survives against Defendant Dr. Percy Myers. By contrast, Plaintiff has failed to state a

claim against Wexford, and the Clerk of Court is DIRECTED to TERMINATE this party.

The Clerk of Court is DIRECTED to prepare for Defendant Dr. Percy 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. 13), 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

US.C. § 1915(£)(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. See FED. R. CIv. PROC. 41(b).

The Clerk of Court is DIRECTED to enter the standard order under the Health

Insurance Portability and Accountability Act because it may involve the exchange of

medical records.

IT IS SO ORDERED.

Digitally signed

DATED: June 4, 2024. AEkbeb eT □□ ee

11:22:43 -05'00'

GILBERT C. SISON

United States Magistrate Judge

Page 6 of 7

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.