# Green v. Wexford Health Sources, Inc.

> District Court, S.D. Illinois · September 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10646279

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** September 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

LESTER GREEN, )
)
Plaintiff, )
)
vs. )
) Case No. 24-cv-447-DWD
WEXFORD HEALTH SOURCES, INC., )
JAMES DAWSON, )
PRECISE SPECIALTIES CORP., )
KIMBERLY HVARRE, )
UNKNOWN WEXFORD EMPLOYEES, )
UNKNOWN IDOC EMPLOYEES, )
)
Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:
Plaintiff Lester Green, an inmate of the Illinois Department of Corrections (IDOC),
brings this civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his
constitutional rights at Menard Correctional Center (Menard). (Doc. 1). The matter is
now before the Court on Plaintiff’s Motion to Amend (Doc. 21) and his proposed
amended complaint (Doc. 21 at 3-76). Although Plaintiff is represented by counsel, he is
currently incarcerated, so his complaint is still subject to review under Section 1915A. 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).
Background
On February 19, 2024, Plaintiff’s counsel filed a complaint alleging that while
incarcerated at Big Muddy Correctional Center, Plaintiff was sexually assaulted by a

medical provider during a 2019 ultrasound examination. (Doc. 1). Three days after filing
the case, counsel filed an Emergency Motion to Seal the Case (Doc. 9). In the Motion,
counsel averred that it had quickly come to their attention that the complaint named the
incorrect medical provider as the perpetrator of the sexual misconduct. Counsel
requested that the case be sealed until the matter could be more thoroughly investigated

and any error could be corrected. The Court granted the request and sealed the case
subject to ongoing updates. (Doc. 10).
While the mis-identification issue was pending, the Court directed Plaintiff to
continue with timely service to the other named parties. (Docs. 17, 20). Prior to the
deadline for service to be completed on the remaining parties, Plaintiff filed Motion for

Leave to Amend (Doc. 21) and the proposed amended complaint. Thus, the Court
granted a motion to stay the service requirement pending a review of the amended
complaint. (Docs. 22, 23).
The Proposed Amended Complaint
The Amended Complaint alleges that on September 11, 2019, Plaintiff encountered

Defendant James Dawson at Big Muddy River for a kidney ultrasound. (Doc. 21 at ¶ 6).
At the time, Dawson was a sonographer and owner of Precise Specialties Corporation, a
company that was under contract with the Illinois Department of Corrections (IDOC) or
Wexford to perform ultrasound exams throughout the IDOC prisons. (Doc. 21 at ¶ 4).
Prior to the exam, Dawson asked whether Plaintiff had ever received an ultrasound, to
which Plaintiff indicated he had not. (Id. at ¶ 6). Dawson instructed Plaintiff to lie on his

back on the exam table and to raise his shirt. Dawson applied a gel on Plaintiff’s stomach,
back, and sides and commenced the ultrasound. During the exam, Dawson instructed
Plaintiff to pull his pants down, and Dawson proceeded to touch Plaintiff’s genitals and
to sexually assault him. (Id. at ¶ 6). Plaintiff alleges he could not resist Dawson’s conduct
because of the power imbalance between staff and inmates. (Id. at ¶ 7). Plaintiff claims
Dawson took advantage of the power dynamic and acted within the scope of

employment with Precise Specialties Corporation. (Id. at ¶ 8).
Plaintiff had a subsequent ultrasound in February of 2023, at which time he alleges
he eventually realized the sexual assault was not a part of a routine ultrasound exam. (Id.
at ¶ 10-11).
Plaintiff faults Defendant Kimberly Hvarre, the Warden, for contracting with

Wexford, for overseeing its employees and contractors, and for failing to implement any
protective measures at Big Muddy that may have prevented the sexual assault. (Id. at ¶
12). For example, he alleges Hvarre failed to implement protective measures such as
nurses patrolling hallways, requiring the attendance of multiple providers at single
appointments, designing the medical unit so exam rooms were always within sight, or

timely investigating sexual assault rumors or complaints. (Id.). Plaintiff alleges Wexford
should be held responsible for the same shortcomings as Hvarre. (Id. at ¶ 14). Plaintiff
alleges neither Hvarre nor Wexford had any legitimate purpose for structuring the
medical unit in such a manner or for failing to implement preventive measures. (Id. at
¶¶ 13, 15).

These same 16 paragraphs of factual allegations are repeated nearly verbatim for
each of the 13 enumerated claims. The anomaly appears to be with the 14th paragraph
of each set of factual allegations. In most counts, this paragraph discusses Wexford’s
liability, but in three claims Precise Specialties’ name takes the place of or joins Wexford’s
name with factual allegations that are otherwise identical. Compare (Doc. 21 at p. 6 ¶ 14)
with (Doc. 21 at p. 27 ¶ 142); (Doc. 21 at p. 67 ¶ 381); (Doc. 21 at p. 72 ¶ 415).

Each series of factual allegation paragraphs is then followed by a two-paragraph
subsection on “jurisdiction” and an additional subsection on the “parties” to each claim.
The “parties” sections are also nearly repeated verbatim, with the last four or so
paragraphs of each “parties” subsection containing varied allegations that appear
targeted to address the elements of the various causes of action.

In the “parties” sections of the pleading, Plaintiff alleges that the “unknown IDOC
employees” were responsible “for monitoring those at the prison, transporting prisoners
to and from medical appointments, and investigating grievances.” (Doc. 21 at 7). In this
same section, Plaintiff alleges “each defendant knew of James Dawson’s sexual
misconduct and/or the risk of sexual assault in one-on-one situations between prisoners

and non-prisoners[.]” (Doc. 21 at 8). Plaintiff argues there was no valid penological
justification for exposing him to the assault, the defendants’ conduct amounted to cruel
and unusual punishment, the IDOC and Wexford defendants had a supervisory
responsibility to prevent and stop the assault, and he suffered physical and emotional
harm from the assault.

Plaintiff’s pleading enumerates the following claims, all premised on the same
factual allegations recounted above:
Claim 1: Claims pursuant to 42 U.S.C. § 1983 Violations of the Eighth
Amendment Against James Dawson;

Claim 2: Claims pursuant to 42 U.S.C. § 1983 Violations of the Eighth
Amendment Against Warden Hvarre and Unknown Big Muddy
River Correctional Center Employees;

Claim 3: Claims pursuant to 42 U.S.C. § 1983 Violations of the Eighth
Amendment Against Wexford and unknown Wexford employees;

Claim 4: Respondeat superior – state law claim: Intentional Infliction of
Emotional Distress Against Wexford;

Claim 5: Respondeat superior – state law claim: Intentional Infliction of
Emotional Distress against Precise Specialties Corporation;

Claim 6: State law claim: Intentional Infliction of Emotional Distress
against Warden Hvarre and Unknown Big Muddy River
Correctional Center Employees;

Claim 7: Respondeat superior—state law claim: sexual battery against
Wexford;

Claim 8: State law claim: sexual battery against Warden Hvarre and
Unknown Big Muddy Correctional Center employees;

Claim 9: State law claim: sexual battery against James Dawson;

Claim 10: State law claim: negligence against James Dawson;

Claim 11: Respondeat superior—state law claim: negligence against
Wexford

Claim 12: Intentional infliction of emotional distress against James Dawson;
Claim 13:1 Respondeat superior—state law claim: sexual battery against
Precision Specialties Corporation.

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
To survive preliminary review under Section 1915A, a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief,” and

which includes “enough facts to state a claim to relief that is plausible on its face.” FED.
R. CIV. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). Plaintiff is
required to associate specific defendants with specific claims so that defendants are put
on notice of the claims brought against them and so they can properly answer the
complaint. Id. at 555. Further, because Plaintiff brings his claims under Section 1983, he

must allege that each defendant was personally involved in the deprivation of a
constitutional right. Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014) (“[I]ndividual liability
under § 1983 requires personal involvement in the alleged constitutional deprivation”);
see also Pepper v. Village of Oak Park, 430 F.3d 806, 810 (7th Cir. 2005) (“[T]o be liable under

1 This claim is mis-number in the complaint as Claim 12, but the Court refers to it as Claim 13 for clarity.
(Doc. 21 at 69). It also appears that Defendant Precise Specialties Corporation is mis-named in this claim
as “Precision” Specialties Corporation.
§ 1983, the individual defendant must have caused or participated in a constitutional
deprivation.”). Furthermore, a generic assertion that one or more defendants engaged in

constitutional violations is not adequately specific. Brooks v. Ross, 578 F.3d 574, 580 (7th
Cir. 2009).
Although this complaint is presented as a civil rights action under 42 U.S.C. § 1983,
the pleading is largely deficient of information to demonstrate the personal involvement
of individual defendants aside from Defendant Dawson. As for Defendant Hvarre, the
unknown IDOC employees, or the unknown Wexford employees, Plaintiff says nothing

to sufficiently demonstrate that these individuals played a direct and personal role in the
assault Plaintiff suffered on September 11, 2019. The factual allegations that are repeated
countless times in the pleading only suggest that as warden, Hvarre should have thought
to implement protective measures to guard against sexual assault in the prison’s medical
unit, but this speculation is insufficient to demonstrate that Hvarre actually knew there

was any risk or reason to act, and the suggestions for what could have been done are no
more than mere conjecture.
The allegations include things like Hvarre should have required nurses to patrol
the halls of the medical unit, she should have timely investigated sexual assault rumors
or complaints, and she should have structured the medical unit so that someone could

see into the exam rooms or hallways. None of these suggestions are tied to Plaintiff’s
own experience, or to Hvarre’s actual day-to-day knowledge or conduct at the facility.
As such, the allegations about Hvarre’s personal involvement are too weak to survive
initial review. Hvarre is named in Claim 2 under § 1983 and the Eighth Amendment, and
in Claims 6 and 8 for state law violations. Because Claim 2 is insufficient, the Court
relinquishes supplemental jurisdiction over state law claims 6 and 8.

There are no factual allegations directly targeted to the conduct of the “unknown”
IDOC or Wexford defendants.
Oddly, in the “parties” section of each individually designated claim, Plaintiff
provided slightly more detail by alleging that “each defendant knew of James Dawson’s
sexual misconduct and/or the risk of sexual assault in one-on-one situations between
prisoners and non-prisoners,” but this is not enough to demonstrate sufficient personal

involvement for purposes of a Section 1983 claim. (Doc. 21 at 6). The assertion that “one
or more defendants harmed” me, is simply not enough for a § 1983 claim. See, Brooks, 578
F.3d at 580. He also alleged things such as, “one or more as-yet unknown IDOC
employees were responsible for monitoring those at the prison, transporting prisoners to
and from medical appointments, and investigating grievances.” (Doc. 21 at 7). Not only

is this allegation too generic to identify the personal actions of individual defendants, but
the actions alleged also are not inherently unconstitutional.
For example, the mere role of processing grievances, even when errors occur, is
not sufficient to state a claim. See e.g., Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011)
(the mere mishandling of grievances by persons who otherwise did not cause or

participate in the underlying conduct states no claim). Additionally, there is no
supervisory liability under § 1983, so the assertion that the unnamed defendants should
have monitored others does not immediately give rise to a claim under § 1983. See e.g.,
Stockton v. Milwaukee Cnty., 44 F.4th 605, 619 (7th Cir. 2022) (“supervisory liability cannot
attach under § 1983 absent a showing the officer is personally responsible for a
deprivation of a constitutional right.”)

Given the overly generic nature of the allegations against the unnamed IDOC and
Wexford defendants, the Court finds that Plaintiff’s Amended Complaint is insufficient
to state a claim against these groups of defendants. These groups are named in Claims 2
and 3 under § 1983, and under claims 6 and 8 for state law violations. All claims are
dismissed as insufficient against the unknown IDOC or Wexford employees.
Claim 3 against Wexford is similarly vague and is not sufficient to proceed beyond

initial review. Plaintiff faults Wexford generically for failing “to implement preventive
policies such as having nurses patrolling the medical unit hallways, requiring two or
more medical treaters to attend appointments, structuring the medical unit so that
someone could see into the medical exam rooms or hallways, requiring guards to be
within sight of the medical unit, requiring the exam room doors to remain open, or timely

investigating sexual assault rumors or complaints.” (Doc. 21 at 17). The only reason
Plaintiff gives for Wexford even possibly needing to suspect these measures are necessary
is because of the “power imbalance between prisoners and staff.” (Doc. 21 at 15). There
are no allegations suggesting that before the assault on Plaintiff, Wexford knew or should
have known that there was a risk of sexual assault in the medical care setting. Nor is

there any suggestion they were ever notified of this assault after the fact.
Wexford is a corporation who contracts with the state to provide medical care in
the prisons. Under controlling precedent, Wexford may be held liable for a constitutional
harm caused by: (1) an express government policy; (2) a widespread and persistent
practice that amounted to a custom approaching the force of law; or (3) an official with
final policymaking authority. See e.g., Howell v. Wexford Health Sources, Inc., 987 F.3d 647,

653 (7th Cir. 2021). “In applying Monell and avoiding respondeat superior liability, one key
is to distinguish between the isolated wrongdoing of one or a few rogue employees and
other, more widespread practices.” Id. at 654.
In addition to an express policy, a widespread custom, or a decision by a final
policymaker, courts have also established that in some circumstances, the absence of a
policy can also amount to a Monell violation. See e.g., Glisson v. Indiana Dept. of Corr., 849

F.3d 372, 379-80 (7th Cir. 2017) (collecting cases on the absence of a policy in the context
of deliberate indifference to a medical need). The Seventh Circuit noted, “[i]n some cases,
it may be difficult to tell the difference between inadvertence and a policy to omit
something[.]” Glisson, 849 F.3d at 379. In Glisson, an inmate’s widow brought a Monell
claim against a corporate medical contractor on the premise that the prison medical staff

lacked a strategy to coordinate care, which led to her husband’s death from starvation,
acute renal failure, and associated conditions. Guidance about coordinated care existed
from the Indiana Department of Corrections, but the contractor did not implement that
guidance. The Seventh Circuit noted that although the failure to implement guidance
alone may not be constitutionally deficient, a jury could find that the contractor’s utter

failure to have established protocols for coordinated care of chronic illness could be
deliberate indifference and could have been the cause of the plaintiff’s death. Thus, an
‘absence of policy’ claim was returned to the trial court for further consideration.
Here, Plaintiff’s allegations are much more generic than claims like those
presented in other cases on Monell liability. Plaintiff attempts to plead an absence of

policy claim, but the facts alleged by Plaintiff amount to the wrongdoing of a single rogue
employee, and the Court does not find it plausible that a corporate medical contractor
should need to assume it may need to create policies to prevent sexual assaults by medical
staff on inmates. At most, Plaintiff alleges that the power imbalance between staff and
inmates makes the risk obvious, but this risk would extend to all prison personnel, not
just medical providers. There is also no suggestion in the pleading itself that the

wrongdoing expanded beyond Plaintiff or that Wexford had notice of this issue or the
risk of this issue beforehand. On the facts, alleged, Plaintiff simply has not made out a
plausible Monell claim.
Next, the Court considers the state law respondeat superior claims (4, 5, 7, 11, 13)
against Wexford and Precise Specialties—both alleged employers of James Dawson.

Respondeat superior liability hinges upon a finding that the employee acted in furtherance
of his employer's interest when committing the acts complained of. Bates v. Doria, 502
N.E.2d 454, 457 (Ill. App. Ct. 1986). Illinois has consistently held that acts of sexual
misconduct are per se unrelated to any employer's business. Delony v. Bd. of Educ. of
Thornton Township, 666 N.E.2d 792, 797-98 (Ill. App. Ct. 1996); Randi F. v. High Ridge

Y.M.C.A., 524 N.E.2d 966, 968 (Ill. App. Ct. 1988). The allegations of sexual battery,
intentional infliction of emotional distress, and negligence against Wexford and Precise
Specialties are tied directly into Dawson’s alleged sexual misconduct, an action which
cannot be attributed to any of his possible employers. See e.g., Deborah K. v. Sperlik, 2005
WL 3299804 at *3 (N.D. Ill. Nov. 30, 2005) (dismissing battery and intentional infliction of
emotional distress claims brought under a theory of respondeat superior against a school

district because, as an employer of a teacher who committed sexual assaults or batteries,
it could not be held liable for such acts that were per se not related to the district’s
business). Thus, the Court finds it appropriate to dismiss Claims 4, 5, 7, 11, and 13 against
Defendants Wexford and Precise Specialties.
This leaves the claims against Defendant Dawson: Claim 1 (an Eighth Amendment
claim), Claim 9 (a state law sexual battery claim), Claim 10 (a state law negligence claim),

and Claim 12 (a state law intentional infliction of emotional distress claim). The Court
will allow these claims to proceed beyond initial review against Defendant Dawson. If
at any time the sole claim over which this court has federal jurisdiction (Claim 1) is
dismissed, then the Court will relinquish supplemental jurisdiction over the state law
claims (Claims 9, 10, 12).

Disposition
Plaintiff’s Motion to Amend (Doc. 21) is GRANTED. The Clerk of Court is
DIRECTED to SUBSTITUTE the presently named doctor on the CM/ECF docket sheet
for the generic “Prison Doctor” and to TERMINATE this party. The Clerk is DIRECTED
to make this change to the sole text entry that mentions this doctor—the docket text with

document 8. This will accomplish the goal of not revealing the mis-named medical
provider. The Clerk of Court is then DIRECTED to UNSEAL this case. However,
Documents 1, 5, and 8 shall REMAIN SEALED because these documents contain the
doctor’s name.
The Clerk of Court is also DIRECTED to ADD the new parties included in the
Amended Complaint (Doc. 21): James Dawson and Precise Specialties Corporation.

IT IS HEREBY ORDERED THAT Claims 1, 9, 10, and 12 of the Amended
Complaint (Doc. 21) survive initial screening as described above against James Dawson.
Counsel is responsible for seeking summons and for serving Defendant Dawson with this
matter. Counsel is also responsible for filing the Amended Complaint (Doc. 21) on the
docket sheet as a freestanding document.
By contrast, Claims 2-8, 11, and 13 are insufficient to state a claim. Plaintiff has

failed to state a valid claim against Defendants Kimberly Hvarre, Unknown IDOC
employees, Unknown Wexford employees, Wexford Health Sources, Inc., and Precise
Specialties Corporation, and the Clerk of Court is DIRECTED to TERMINATE these
parties.
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 transfer or other 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).
Based on the allegations in the Complaint, the Clerk of Court is DIRECTED to
enter the standard qualified protective order pursuant to the Health Insurance Portability
and Accountability Act.
IT IS SO ORDERED.
Dated: September 18, 2024

DAVID W. DUGAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10646279. Public record. Not legal advice.