Garcia v. IDOC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SERGIO GARCIA, )

Y21700, )

)

Plaintiff, )

)

vs. )

)

IDOC, )

WEXFORD HEALTH SOURCES, )

J.B. PRITZKER, )

JERMIAH BROWN, ) Case No. 24-cv-1784-DWD

LATOYA HUGHES, )

LORIE CUNNINGHAM, )

CARISSA LUKING, )

MELISSA WISE, )

MS. WELTY, )

MR. BABISCH, )

JAMES X. LIU, )

JANE DOE, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Sergio Garcia, an inmate of the Illinois Department of Corrections (IDOC)

currently detained at Lawrence Correctional Center (Lawrence), brings this civil rights

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

Specifically, he alleges that he as a serious shoulder injury that the defendants have

refused to effectively treat.

Plaintiff’s Complaint (Doc. 1) is now before the Court for preliminary review

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)-(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). 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 he has been suffering from shoulder problems for at least ten

years, and that for the last seven years he has been in IDOC custody. (Doc. 1 at 11). He

alleges that being handcuffed behind his back exacerbates his pain. He states he is “afraid

its retaliation being done to [him] for filing this lawsuit.” (Doc. 1 at 11). Plaintiff’s

complaint is not written in chronological order, but the Court will reorganize his

allegations here.

Plaintiff alleges that Defendant Wise is a nurse practitioner who recommended

him to an orthopedic specialist. (Doc. 1 at 13). He further alleges that after his orthopedic

results came back showing a lack of cartilage and bone loss, she did not help him, despite

knowing the results of the exam. (Doc. 1 at 13).

On October 24, 2023, Plaintiff saw Defendant Dr. James X Liu at an outside hospital

to assess his shoulder pain. He had x-rays, which he attached to his complaint. He alleges

that Dr. Liu told him he would not perform surgery until he was released from prison.

(Doc. 1 at 12). The attached visit summary from Dr. Liu at Carle Orthopedics is consistent

with Plaintiff’s general description. After reviewing x-rays and MRIs, Dr. Liu

summarized issues with both shoulders. He reported:

Garcia is a 28 years old male with bilateral shoulder pain due to recurrent

glenohumeral instability. We discussed that this will require surgery to

stabilize his bilateral shoulders, but I do not recommend surgery while he

is incarcerated. I am concerned that he will not be able to have the

appropriate therapy postoperatively, especially with his restrictions

regarding his shackles. I do not recommend moving forward with the

surgery while he is incarcerated. I did recommend physical therapy for his

bilateral shoulders, and I have provided a recommendation for NSAIDs.

(Doc. 1 at 18). Dr. Liu concluded that he could not offer surgical options at this time, but

that he would be willing to revisit the issue with Plaintiff if/when he was released. (Id.).

Plaintiff faults Dr. Liu for deliberate indifference because his recommendation to wait for

release from custody would mean delaying Plaintiff’s access to surgery for approximately

the next 26 years.

On April 10, 2024, Plaintiff wrote to Defendant Governor Pritzker about his

extreme shoulder pain, the recommendation for surgery, and the access to medical care

he has in prison. Pritzker’s office responded on April 25, 2024, that he should wait at

least 30 days for a response, but as of late-July 2024, he had yet to receive a response.

(Doc. 1 at 12). Plaintiff attached the letter asking him to wait for a response, or to reach

out if he has additional questions. (Doc. 1 at 20).

Plaintiff alleges that on May 9, 2024, he had a call pass to see Nurse Practitioner

Luking, but he was informed that it was cancelled. (Doc. 1 at 11). He then opted to go to

yard. Around noon he saw Defendant Nurse Welty passing out medications at the

restrictive housing building. The yard gate was close to the building, so he caught

Welty’s attention when she exited the building and provided his identifying information.

He asked Welty for his medications, but she said he could not have his medications

because he chose to attend yard instead of waiting in his unit for medications. He claims

in total he went about 15 or 16 hours between his morning and evening dose, and that

Welty’s denial caused him great pain. He claims that Welty knew of his need for

medication because she had previously seen him during nurse sick call about his

shoulder, but even with this knowledge she refused and forced him to suffer.

On June 4, 2024, Plaintiff wrote Warden Brown about his shoulder pain, and the

issues he was having with call passes being cancelled. He claims he also wrote an

emergency grievance, which he knew would go straight to Brown. Despite these efforts,

he claims that Brown is aware of his serious medical issue but turns a blind eye and

refuses to help. (Doc. 1 at 12).

On or around June 10, 2024, Plaintiff wrote to Defendant Lori Cunningham, the

healthcare unit administrator. (Doc. 1 at 12). He told Cunningham about his extreme

pain and the cancellation of his sick call passes, but she has not replied, and he claims she

is turning a blind eye or not doing her best to help him.

On July 4, 2024, Plaintiff claims he had another call pass to see Defendant Luking,

but when he asked a guard about the status of his call pass he was told it was cancelled

for no reason. He claims he has not seen Luking since February 28, 2024, despite putting

in numerous sick call slips asking to be seen. (Doc. 1 at 11).

On July 9, 2024, Plaintiff received medications from a Jane Doe nurse. He asked

the Jane Doe what was going on with his recent medical call passes that had been

cancelled. He reported to Jane Doe that he was in extreme pain. She glanced at his

medication pass and said, “Mr. Garcia you keep writing grievances on Nurse Luking it

might be a while for you.” (Doc. 1 at 11). Jane Doe refused to give her name, but Plaintiff

described her as a 30-something short Caucasian female, weighing around 120 pounds,

with short hair.

Plaintiff alleges that Defendant Wexford is also aware of his situation because he

wrote to Wexford on July 18, 2024, about his medical issue and the lack of treatment.

(Doc. 1 at 12). He alleges that he also complained that Lawrence has only one nurse

practitioner for 900 inmates. (Doc. 1 at 12).

Finally, Plaintiff alleges that Defendant Latoya Hughes is the IDOC Director, and

in this role she is aware of problems with Wexford’s handling of medical issues, but she

does not do anything to correct these issues. (Doc. 1 at 13).

In an affidavit filed in support of the complaint, Plaintiff alleges that he has lost

cartilage in his shoulders and is now losing bone. He claims that he wakes up in extreme

pain, or with his arm feeling numb. He receives nerve medication but claims it does not

help for his shoulder pain. He is concerned that if he cannot receive surgery until he is

released in 26 years that his shoulders will deteriorate so badly he will lose an arm. (Doc.

1 at 23). He alleges that he was last seen by a nurse practitioner in February of 2024, and

that since that time he has repeatedly been told he is on the nurse practitioner’s list, but

he has not been seen. He further claims that with his shoulder injuries he is vulnerable

in the prison environment and must carry contraband weapons to defend himself. He

was recently caught with such a weapon in March of 2024 and is currently serving a one-

year term of segregation. (Doc. 1 at 24).

Plaintiff seeks monetary compensation, as well as a preliminary injunction

mandating that he receive emergency surgery to prevent further damage to his shoulders.

(Doc. 1 at 21).

The Court designates the following claims:

Claim 1: Eighth Amendment deliberate indifference claim against

Defendant Wise for failing to follow-up after Plaintiff’s

orthopedic consultation in October of 2023;

Claim 2: Eighth Amendment deliberate indifference or First

Amendment retaliation claim against Defendant Luking for

her handling of his shoulder injury and cancellation of his

appointments after he filed a grievance;

Claim 3: Eighth Amendment deliberate indifference claim against

Defendants Jane Doe (July 9) and Nurse Welty (May 9) for

their interactions with Plaintiff in May and July of 2024;

Claim 4: Eighth Amendment deliberate indifference claim against

Defendant Dr. Liu for refusing Plaintiff shoulder surgery in

October of 2023;

Claim 5: Eighth Amendment deliberate indifference claim against

Defendants Brown and Cunningham for their responses to

Plaintiff’s grievances and queries about his shoulder injury;

Claim 6: Eighth Amendment deliberate indifference claim against

Defendants Pritzker or Hughes for their role in Plaintiff’s

care;

Claim 7: Monell claim against Wexford Health Sources for its role in

Plaintiff’s access to care.

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

As a preliminary matter, Plaintiff names Defendant Dr. Babisch, who he describes

as the medical director, but he does not provide any factual allegations whatsoever about

Dr. Babisch. Merely naming an individual without describing their role is insufficient, so

Dr. Babisch will be dismissed without prejudice. See e.g., Black v. Lane, 22 F.3d 1395, 1401

n. 8 (7th Cir. 1994) (naming a defendant in the caption is not sufficient to state a claim).

Plaintiff also named the IDOC without describing its role. Even if Plaintiff did have

allegations against IDOC, it is not a “person” for purposes of § 1983 liability, so any such

claim would automatically fail. Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017) (IDOC

was properly dismissed because it is not a person subject to suit under § 1983). Thus,

IDOC will also be dismissed without prejudice.

An Eighth Amendment claim arising from the denial of medical care consists of

an objective and a subjective component. Berry v. Peterman, 604 F.3d 435, 439–40 (7th Cir.

2010). A plaintiff must show that he suffered from a serious medical condition (i.e., an

objective standard) and also show that each defendant responded with deliberate

indifference (i.e., a subjective standard). Id. To satisfy the subjective component, a

prisoner must demonstrate that an official knew of and disregarded an excessive risk to

inmate health. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Neither medical

malpractice, nor mere disagreement with a doctor’s medical judgment will amount to

deliberate indifference. Id. Additionally, an inmate is not entitled to demand specific

care, and a medical professional may choose from a range of acceptable courses of care.

Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 965 (7th Cir. 2019).

Plaintiff alleges that Defendant Wise has violated his right to adequate care for his

serious shoulder condition by not taking any steps beyond referring him to an orthopedic

consultation, but he does not actually indicate that he ever saw Wise after he was referred

for this visit. Instead, he states that in late February of 2024 (a few months after his late

October 2024 orthopedic consultation) he saw Defendant Luking. On these bare

allegations, there is insufficient information to plausibly suggest Wise knowingly refused

to address Plaintiff’s needs after referring him for a consultation. Therefore, Claim 1

against Wise is dismissed as insufficient.

By contrast, Plaintiff alleges that he saw Defendant Luking once in late-February,

and that since this time his subsequent visits with Luking have been repeatedly cancelled

without much information. At most, he suggests that a Jane Doe nurse told him he would

not get to see Luking for quite some time because he had filed a grievance about her. This

might either suggest deliberate indifference on Luking’s behalf if he remains in serious

pain, or perhaps it might suggest retaliation by Luking for the grievances. Although

Plaintiff’s allegations are relatively minimal, the Court will read the complaint broadly in

his favor at this early juncture and he may proceed under the First and Eighth

Amendments in Claim 2 against Defendant Luking.

In Claim 3, Plaintiff faults Jane Doe nurse for an interaction on July 9, 2024, during

which she told him Luking might be refusing to see him over a grievance. He does not

attribute any personal responsibility to Jane Doe about this situation with Luking, and he

does not allege that Jane Doe actually denied him any care within her scope of authority

as a nurse. As such, there are insufficient factual allegations to support Claim 3 against

Jane Doe nurse.

Plaintiff also faults Nurse Welty for a May 9, 2024, exchange about his medications,

which he informally requested from her while he was out on the yard. At most Plaintiff

claims he suffered for 15 or 16 hours between his morning and evening doses. He claims

Welty should have realized he would be in extreme pain because she had seen him before

at sick call for his chronic shoulder issues. However, generally a single missed dose of

medication is insufficient to state a claim absent a showing that an individual sustained

prolonged suffering or an independent injury from the missed dose. See e.g., Hamilton v.

Gavin, 2023 WL 2161663, at *6-7 (N.D. Ill. Feb. 22, 2023) (collecting cases concerning

missed doses of medication, generally one dose is not enough to state a claim), but see e.g.,

Fields v. Miller, 2021 WL 1400907, at *1-2 (E.D. Wisc. Apr. 14, 2021) (collecting cases on a

missed dose of medication and finding that a single missed dose without any adverse

effect was not sufficient to state a claim); Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir.

2015) (a delay in treatment must also cause prolonged suffering or a discrete injury to

state a claim). Here, it is important to note that Plaintiff asked for his medication in a

non-routine setting, while he was at the yard, and that Welty refused because she said

that was inappropriate. Against this backdrop, with only 15 hours of discomfort, and

absent a lasting or new injury, the Court finds the that allegations against Welty about

the single missed dose are insufficient to state a claim. Claim 3 shall be dismissed in full.

Next, Plaintiff faults Defendant Dr. Liu for refusing to offer immediate surgery,

but this is not sufficient to state a claim because the visit notes clearly indicate that Dr.

Liu did not believe surgery was medically appropriate given Plaintiff’s incarceration. Dr.

Liu choose an alternative option of physical therapy and medication. There is no

indication that there was a subsequent visit where Plaintiff indicated this option was not

helpful and that Dr. Liu persisted in ineffective care. An inmate does not have a right to

demand a specific course of care, and a provider can choose between multiple alternative

courses of care. Thus, the facts alleged do not form the basis for a deliberate indifference

claim against Dr. Liu.

Additionally, as a doctor at an outside hospital, it is likely that Dr. Liu is not a

“person” for purposes of § 1983 liability, which would also negate Plaintiff’s deliberate

indifference claim against him. See e.g., Shields v. Illinois Dept. of Corrections, 746 F.3d 782,

797-98 (7th Cir. 2014) (“whether a medical provider is a state actor is a functional inquiry,

focusing on the relationship between the state, the medical provider, and the prisoner.”);

Rackemann v. Robinson, 2019 WL 4737194 at *2-3 (S.D. Ind. Sept. 27, 2019) (granting

summary judgment in favor of a doctor because he was not a ‘state actor’ for purposes of

§ 1983 where he only occasionally saw patients from the prison at a local hospital, and

where he was privately employed). Thus, Claim 4 is dismissed without prejudice.

In Claim 5, Plaintiff faults Defendants Brown and Cunningham for gaining

knowledge of his serious medical need from letters and an emergency grievance but

failing to act to assist him. An inmate can sometimes state a claim against a prison

administrator for turning a blind eye to his serious needs, but to do so he must

demonstrate that they have been made aware of his situation through highly detailed

correspondence and that despite this knowledge they have refused to act. See e.g. Perez

v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015) (if a prison official learns of a serious

condition from an inmate’s highly detailed correspondence and refuses to act, then he or

she may be liable). Here, Plaintiff’s allegations suggest that he may wish to present such

a claim, but he does not provide much information about the contents of his

correspondence to Brown or Cunningham. He also alleges that he wrote them just once

only about a month and a half before he filed his complaint. He says he sent an

emergency grievance, but does not indicate when he sent that, what kind of response it

received, or if it was fully reviewed before he filed this lawsuit.1 Based on the scarcity of

information, Plaintiff will not be allowed to proceed against Cunningham or Brown.

Claim 5 will be dismissed without prejudice.

Next, in Claim 6 Plaintiff faults Defendant Governor Pritzker and Director Hughes

for his issues accessing medical care. He indicates he wrote the Governor’s office just

once but had yet to receive a final response at the time of this lawsuit. A letter-writing

campaign to high-ranking officials is not enough to hold them liable for discrete issues

with a single inmate’s medical care. Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009)

(finding that writing letters to the governor and other officials like the superintendent of

prisons was insufficient to form a basis for § 1983 liability because they are entitled to

1 It is possible that the emergency grievance he sent to Brown is the one for which he attached the

Administrative Review Board response dated May 30, 2024. (Doc. 1 at 10). However, it is not clear from

the limited recitation of facts provided by the ARB if is in fact the grievance referenced by Plaintiff in the

complaint, if it was submitted as an emergency, or what its contents would have relayed to Defendant

Brown.

delegate the provision of good medical care to prison medical staff). Plaintiff does not

allege that he contacted Hughes about his situation at all, and instead just states that

because she is the IDOC Director she knows of problems with Wexford’s provision of

health care and should be held liable. These allegations are insufficient against Pritzker

and Hughes, so Claim 6 is dismissed as insufficient.

Finally, in Claim 7 Plaintiff faults Wexford for the lack of adequate care. Wexford

is a private corporation that cannot be held liable under § 1983 unless the constitutional

violation was caused by an unconstitutional policy or custom of the corporation itself.

Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 789 (7th Cir. 2014); see also Monell v.

Department of Social Services of City of New York, 436 U.S. 658 (1978). Thus, under Monell,

for Plaintiff to recover from Wexford, he must show that the alleged constitutional

violation was caused by: (1) an express policy that caused a constitutional deprivation

when enforced; (2) a widespread practice that was so permanent and well-settled that it

constituted a custom or practice; or (3) a person with final policymaking authority. Dean

v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021). Plaintiff does not have any

allegations that explicitly point to a constitutionally deficient policy, custom, or practice

by Wexford, so he has not stated a Monell claim. At most, he suggests that Wexford is

understaffed relative to the inmate population, but he does not directly link understaffing

to his problem with appointments, so this is not a sufficient basis for a claim.

Plaintiff’s stray allegation that he sent a letter to Wexford about his situation just

a week or so before filing this case is also insufficient to establish liability. This does not

suggest there is a policy, custom, or practice at play, or that Wexford had specific

knowledge of his situation with any time to act. As such, Claim 7 against Wexford is

dismissed as insufficient to state a claim.

In sum, Plaintiff may proceed against Defendant Carissa Luking on Claim 2, but

all other claims are dismissed without prejudice as insufficiently pled.

Disposition

IT IS HEREBY ORDERED THAT Claim 2 survives initial review against

Defendant Carissa Luking. By contrast, Claims 1 and 3-7 are dismissed without

prejudice as insufficiently pled. The Clerk of Court is DIRECTED to TERMINATE

Defendants IDOC, Wexford Health Sources, Inc., J.B. Pritzker, Jermiah Brown, Latoya

Hughes, Lorie Cunningham, Melissa Wise, Ms. Welty, Mr. Babisch, James X Liu, and Jane

Doe, because there are no sufficient claims against these parties.

The Clerk of Court is DIRECTED to prepare for Defendant Carissa Luking: (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 (Doc. 1), 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

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).

The Clerk of Court is DIRECTED to enter the standard HIPAA Order because this

case concerns medical care.

IT IS SO ORDERED.

Dated: October 17, 2024

UA e Lb

DAVID W. DUGAN

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.

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.