The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRY DIBBLE, B81130, )
)
Plaintiff, )
)
v. ) Case No. 22-cv-1427- RJD
)
WEXFORD HEALTH SOURCES, INC., et )
al. )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
This matter comes before the Court on Defendants’ Motions for Summary Judgment on
the issue of administrative remedy exhaustion. Docs. 75, 78, and 80. Plaintiff filed Responses
(Docs. 86-88) and Defendants replied (Docs. 89-21).
BACKGROUND
Plaintiff, currently incarcerated within the Illinois Department of Corrections (“IDOC”) at
Shawnee Correctional Center, filed this lawsuit pro se pursuant to 42 U.S.C. §1983. Doc. 1. He
alleges that his Constitutional rights were violated at Lawrence Correctional Center (“Lawrence”)
related to a large and painful lipoma (fatty growth) on the back of his head. Id. After Plaintiff
filed suit, he retained counsel who filed a First Amended Complaint on his behalf, alleging that on
July 2, 2020, Defendant Nurse Practitioner Luking attempted to remove the lipoma, but instead
“dissected a piece of muscle from the back of his head.” Doc. 19, ¶4. Defendants Sgt. Johnson
and Dr. Pittman witnessed the botched removal procedure but failed to intervene. Id., ¶¶38, 53.
Following the removal procedure, Plaintiff had new complications, including eye twitching and
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the feeling of bugs crawling on his head. Id., ¶49. He repeatedly sought medical care at
Lawrence and a referral to an outside specialist. Dr. Pittman requested an outside referral for
Plaintiff, but Defendant Dr. Garcia denied the request. Id., ¶62. Dr. Shah said “pain from a
lipoma would be part of Plaintiff’s life.” Id., ¶69. Nurse Practitioner Stover prescribed fish oil
to Plaintiff and told him the lipoma was just “cosmetic.” Id., ¶74. Id. The health care staff were
trying to “cover up” Defendant Luking’s conduct by ignoring Plaintiff’s symptoms. Id., ¶64.
However, on May 19, 2021, Plaintiff underwent lipoma removal surgery at an outside hospital.
Plaintiff alleges that Defendant Wexford Health Sources, Inc. (a private company that contracts
with IDOC to provide medical care to inmates and employed all of the individual defendants
except Sgt. Johnson) has a policy, practice, and/or custom to refuse offsite medical treatment for
inmates (as well as cover up mistakes by staff members).
Following the Court’s review under 28 U.S.C. §1915A, Plaintiff proceeded on the
following claims:
Count 1: Eighth Amendment claim for deliberate indifference to
Plaintiff’s serious medical need against all Defendants.
Count II: Eighth Amendment claim for failure to intervene against all
individual Defendants.
Count III: Conspiracy to deprive Plaintiff of his constitutional rights
against all Defendants.
Count IV: Monell claim against Defendant Wexford Health Sources,
Inc. (“Wexford”) for their policies and/or practices of
denying inmates specialty or offsite medical care,
“cover[ing] up” the misconduct of its medical staff, and
allowing medical staff to perform unauthorized medical
procedures for which the staff was “utterly unqualified.
Count V: Fourteenth Amendment claim for denial of due process
against Defendant Luking.
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Count VI: Assault against Defendant Luking.
Count VII: Battery against Defendant Luking.
Count VIII: Intentional Infliction of Emotional Distress against
Defendant Luking.
Count IX: Negligent Infliction of Emotional Distress against
Defendant Luking.
Count X: Negligent or Willful and Wanton Conduct against all
Defendants.
Plaintiff’s Grievances
Grievance #7-20-203 (Doc. 86-1)
On July 15, 2020, Plaintiff submitted the following grievance at Lawrence:
On June 24, 2020 I was called to “Nurse Sick Call” to consult with
RN Luking in regards to the painful lipoma on the back of my head.
RN Luking informed me that she would submit a request to Wexford
to remove the lipoma herself.
On July 2, 2020 I was called to the health care unit. RN Luking
informed me that Wexford approved the lipoma removal procedure.
I was instructed to lie face down on the exam table. RN Luking
injected the lipoma with a numbing agent, then cut a one inch
opening on top of the lipoma….[she] spent a considerable amount
of time attempting to cut the tissue out of my head. She informed
me that “lipomas often attach themselves to the skull when they have
been inside there for a long time.”
RN Luking finally informed me that the procedure was complete
and began stitching me up. After being stitched up, I cleaned blood
off my face in the sink located in the exam room.
RN Luking showed me a dime size piece of red muscle tissue that
was still clamped in a medical tool. RN Luking put a small piece
of gauze over the stitched up area and gave me a blister pack of 30,
400 mg Ibuprofen with instructions written on them to “take 2 tabs
3x a day as needed.”
I then returned to the housing unit. I was not seen again by any
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medical personnel about changing my bandages.
On July 9, 2020, I was called to the Health care unit and my stitches
were removed by an unknown nurse in the lab room.
On July 15, 2020, I was called to the Health Care Unit to see Dr.
Pittman. I informed her that I am experiencing pain, tingling
sensations around and under the lipoma and numbness on the right
side of the lipoma. Dr. Pittman informed me that she would submit
a request to Wexford to have me sent to an outside specialist, as this
surgery was never approved.
Mr. Brown from B of I then came to the Health Care Unit at the
request of Dr. Pittman and photographed the one inch scar over the
lipoma which his still in my head. Dr. Pittman told Mr. Brown to
email her the photo as it is to be placed in my medical file.
I then returned to the Housing Unit.
I am requesting this grievance be given emergency status due to the
pain, tingling sensation, and numbness that I am presently
experiencing.
Plaintiff fully exhausted this grievance prior to filing suit. It was deemed moot at all levels
of review.
Grievance 8-20-237 (Doc. 86-2)
On August 18, 2020, Plaintiff submitted the following grievance at Lawrence:
On 7-15-20, I filed an Emergency Grievance over the botched
surgical procedure that was performed here at the facility on 7-2-20
by NP Luking. This surgery according to my medical records was
botched and unauthorized and was done in an unsanitary
environment during the Covid-19 pandemic. Since the unauthorized
surgery I have been experiencing constant shooting pains, tingling
sensations on the left side of my head around the lipoma and across
my face. As well as a left eye twitch. On 7-29-20 that emergency
grievance was denied and deemed moot…I have since submitted
multiple requests to the health care unit reporting the conditions that
I am experiencing and asking for proper medical care…Dr. Shah
denied my request for proper medical treatment and told me that
“pain is a part of life, the lipomas are considered cosmetic and are
not removed.” Then he wrote “observe” as his treatment plan in my
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medical file. Dr. Garcia and Dr. Shah denied the referral for
general surgery that was submitted by Dr. Pittman.
The conditions I am experiencing since the failed lipoma removal
surgery lead me to believe that I am suffering from nerve damage
my requests for outside expert examination are being denied. I am
being denied proper medical treatment after an unauthorized,
botched lipoma removal surgery was done on me in an unsanitary
exam room at the prison during the Covid-19 pandemic….Dr. Shah
is “observing” as I am living with the pain and suffering the after
effects of a failed surgical procedure.
Plaintiff fully exhausted this grievance prior to filing suit. It was denied by the prison as
a “duplicate” to grievance #7-20-203 and denied by the Administrative Review Board as moot.
Grievance #10-20-187 (Doc. 86-3)
On October 19, 2020, Plaintiff submitted the following grievance at Lawrence:
On 9-27-20, I submitted a request to the Health Care in regard to the
pain I am experiencing due to the attempted removal of a lipoma on
July 2, 2020. I have not received a call pass for this issue.
I have been experiencing pain, tingling sensations, and a twitch in
my left eye since the lipoma surgery. I have complained of these
conditions for 3 months, in response I have been issued ibuprofen
and fish oil pills. My requests to be sent out to see a specialist have
been denied by Dr. Shah and NP Luking, and NP Stover. I have
spoken face to face with Warden Brookhart regarding the attempted
lipoma removal, I informed Warden Brookhart of Dr. Shah’s
denial…I am being denied proper medical treatment in regard to
pain, tingling sensations, and a left eye twitch caused by surgery that
(per my medical records) was unauthorized and botched.
Plaintiff fully exhausted this grievance prior to filing suit. It was deemed moot at all levels
of review.
Discussion
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative
remedies prior to filing lawsuits in federal court. For inmates within the IDOC, grievances must
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contain the following requirements:
The grievance shall contain factual details regarding each aspect of
the offender's complaint, including what happened, when, where
and the name of each person who is the subject of or who is
otherwise involved in the complaint. This provision does not
preclude an offender from filing a grievance when the names of
individuals are not known, but the offender must include as much
descriptive information about the individual as possible.
20 ILL. ADMIN. CODE § 504.810(c).
The burden rests with Defendants to establish that Plaintiff failed to exhaust his
administrative remedies prior to filing suit. Smallwood v. Williams, 59 F. 4th 306, 315 (7th Cir.
2023). Defendants agree that Plaintiff fully exhausted grievances 7-20-203, 8-20-237, 10-20-187,
but they conted that Plaintiff failed to identify certain Defendants and certain claims within those
grievances.
Defendant Johnson’s Motion for Summary Judgment is well-taken. Plaintiff’s grievances
do not identify Defendant Johnson by name, nor do they mention the presence of a security officer
who witnessed the botched lipoma removal (and there are no other allegations against Defendant
Johnson in the Complaint). The Court assumes that a security officer is likely always present in
the health care unit while inmates are being treated, but without some sort of mention of an officer
as a witness to problematic medical treatment, prison officials are not alerted to any issue regarding
non-medical staff members’ failure to intervene or other deliberate indifference to a serious
medical need. Because Plaintiff failed to alert prison officials that a non-medical staff member
had some type of involvement in the events of July 2, 2020, he failed to exhaust his administrative
remedies against Sergeant Johnson and his claims against him are DISMISSED WITHOUT
PREJUDICE.
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Similarly, Plaintiff’s Amended Complaint alleges that on July 15, 2020, Dr. Pittman told
Plaintiff the healthcare staff was “gossiping” about his condition while Nurse Practitioner Luking
was trying to remove the lipoma. Dr. Pittman “peeked” into the exam room but did not try to stop
Defendant Luking’s “egregious misconduct.” Doc. 19, ¶53. Plaintiff did not include the
information from this conversation in his grievances; this conversation with Dr. Pittman occurred
earlier in the day before he submitted the first of his three fully exhausted grievances. Doc. 86-1,
p. 3. Therefore, to the extent that Plaintiff contends that Dr. Pittman violated his Eighth
Amendment rights on July 2, 2020 while Nurse Practitioner Luking removed some of his muscle
tissue, Plaintiff’s claims against Dr. Pittman in Counts I and II are DISMISSED WITHOUT
PREJUDICE for Plaintiff’s failure to include “factual details regarding [this] aspect of [his]
complaint” in his grievances. 20 ILL. ADMIN. CODE § 504.810(c).
The remaining arguments by Defendants attempt to place a higher pleading standard on
Plaintiff’s grievances than is required by the Illinois Administrative Code. For example, the
remaining Defendants all contend that Plaintiff did not mention any type of conspiracy in his
grievances, and therefore ask that the Court dismiss Count III. Neither Seventh Circuit case law
nor the Illinois Administrative Code require inmates to plead their legal theories in their
grievances. Id.; Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Plaintiff identified the
remaining Defendants by name, and identified the same events that are now alleged in his
Amended Complaint. He made repeated visits to the health care unit, he received conflicting
information from Defendants about what could/would be done for his condition, and Defendants
seemingly did nothing for his pain. Regardless of whether these facts will ultimately prove a
“conspiracy” existed among Defendants to cover up Defendant Luking’s mistake and/or deny
Plaintiff specialty medical care, his grievances contain the same facts that are alleged in his
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Complaint to constitute a conspiracy.1
Defendants make identical arguments regarding Plaintiff’s remaining claims. The
remaining claims rely on the factual allegations discussed above in Plaintiff’s Amended
Complaint, and those factual allegations are all contained in Plaintiff’s fully exhausted grievances
(except for the allegations that Dr. Pittman and Sgt. Johnson witnessed the botched removal
procedure but did not intervene). Accordingly, the summary judgment motion (Doc. 75) by
Defendants Wexford, Luking, Stover, Garcia, and Shah is DENIED. Plaintiff’s claim(s) against
Defendant Pittman for observing Plaintiff’s botched lipoma removal surgery and not intervening
on July 2, 2020 are DISMISSED WITHOUT PREJUDICE. Defendant Pittman’s summary
judgment motion (Doc. 80) is otherwise DENIED. Plaintiff’s claims against Defendant Johnson
are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED: August 29, 2024.
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
1 To the extent that Defendants are arguing those facts could not or did not constitute a conspiracy, that is not a
relevant argument for an exhaustion motion.
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