Thomas v. Wexford Health Sources Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ADRIAN THOMAS, N95415, )

)

Plaintiff, )

)

vs. )

) Case No. 24-cv-2018-DWD

WEXFORD HEALTH SOURCES, INC., )

ANGELA CRAIN, )

ANTHONY WILLS, )

KELLY PIERCE, )

ADEWALE KUFORIJI, )

L. HAMBY, )

JANE DOE 1, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Adrian Thomas, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Western Illinois Correctional Center, 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). Plaintiff’s complaint concerns the

delayed response to an infection in June of 2022. 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

In early 2022, Plaintiff began to experience severe stomach pain, a burning

sensation in his genitals and blood in his urine. (Doc. 1 at 4). On or around June 16, 2022,

he informed several nurses of his symptoms. On June 20, 2022, Jane Doe 1 (a nurse)

evaluated Plaintiff at sick call. Plaintiff alleges that she documented abnormal vital signs,

difficulty “voiding,” back pain, abnormal findings from a urine dipstick, and symptoms

with a duration of more than 36 hours. (Doc. 1 at 4). Jane Doe 1 also made a doctor’s

referral for suspected gonorrhea, chlamydia or syphilis. (Doc. 1 at 4). Jane Doe 1

allegedly told Plaintiff to stop sticking his genitals in cracks in the wall and prescribed

him three days of acetaminophen, but nothing for the infection.

Plaintiff alleges that his symptoms worsened, and with each passing day he

informed nurses about his situation. (Doc. 1 a 4). On or around June 24, 2022, Plaintiff

saw Defendant L. Hamby (a nurse) during medication rounds in his gallery. He stopped

Hamby and explained his situation. He claims Hamby was “trying to give [him] a

“captula” through his penis, when [he] told her all [he] needed was Flomax and Bactrim

to clear the problem.” (Doc. 1 at 5). Plaintiff alleges Hamby got angry because he tried

to advise her of the treatment he needed, so she then recorded in her notes that he refused

treatment. He alleges that Hamby and Defendant Crain both stated in response a

grievance that on this occasion Hamby observed him standing at his commode. (Doc. 1

at 5).

On June 24, 2022, he filed an emergency grievance about his situation, and on July

1, 2022, Defendant Warden Wills deemed the grievance an emergency. (Doc. 1 at 5). In

the grievance, he explained that he had an infection and that he knew if he was given

Flomax and Bactrim his symptoms would resolve. (Doc. 1 at 5). On July 29, 2022,

Defendant Kelly Pierce (a grievance officer) denied Plaintiff’s grievance as moot. (Doc. 1

at 5).

He subsequently wrote the Administrative Review Board (ARB), but they

returned his appeal because he did not include the memorandum a grievance officer had

appended to their response. On October 3, 2022, the ARB denied the appeal. (Doc. 1 at

6).

Plaintiff faults all defendants for exhibiting deliberate indifference to his medical

situation. He alleges they should be held liable in their individual and official capacities.

(Doc. 1 at 6). As to Defendant Wills, he alleges Wills was fully aware of the pain he was

experiencing and knew that a delay in treatment would make his condition worse, yet he

deliberately disregarded his needs. (Doc. 1 at 6). He then alleges Defendants Crain,

Pierce, Adewale Kuforiji (ARB member) L. Hamby and Jane Doe 1 were all aware of his

situation and despite his requests for treatment they refused to help. (Doc. 1 at 7). He

claims in total that he was knowingly deprived of treatment for eight days. He

specifically faults Crain, Hamby, and Jane Doe 1 for willfully failing to exercise the skill

and care that a qualified medical professional should have used when presented with his

situation. He claims they failed to properly treat his conditions, failed to establish

medical safeguards to ensure adequate treatment was not delayed, exhibited deliberate

indifference to his needs and further complicated his situation. (Doc. 1 at 7). He alleges

in a single paragraph that Defendant Wexford should be held responsible because they

have a widespread practice of understaffing, which causes delays in treatment and

promotes harm to inmates. (Doc. 1 at 8).

In support of the complaint, Plaintiff submitted medical records and grievance

documentation. The notes from June 20, 2022, indicate that Plaintiff was referred to a

doctor. (Doc. 1 at 9). Notes from June 24, 2022, signed by L. Hamby indicate that Plaintiff

reported being unable to “void” for four days, and he also reported chills and abdominal

pain. (Doc. 1 at 15). He reported pain was at a level ten. Hamby noted that Plaintiff self-

reported using Bactrim and Flomax in the past. Hamby indicated he was invited to

“come to F.A. for further eval and tx” but Plaintiff refused. (Doc. 1 at 15-16). It was noted

that he was referred for a follow-up eval later the same day. (Doc. 1 at 15).

Plaintiff dated his grievance June 24, 2022, though it appears he signed it on June

28, 2022. (Doc. 1 at 10-11). On July 1, 2022, Warden Wills deemed the grievance an

emergency. (Doc. 1 at 10). The grievance officer received the grievance on July 7, 2022,

and it was reported as forwarded to the health care unit for review. (Doc. 1 at 19). In a

memorandum dated July 13, 2022, from Angela Crain to Kelly Pierce, Crain recited

information comparable to Plaintiff’s allegations about his June 20 and 24, 2022,

interactions with L. Hamby and a nurse at sick call (Jane Doe 1). (Doc. 1 at 14). Crain

went on to explain that on June 24, 2022, NP Moldenhauer noted that Plaintiff’s chart was

presented for review. Moldenhauer further indicated, “will give antibiotics (Bactrim) and

schedule follow up. Bactrim PO BID x 7 days, follow up MD/NP call line within 2

weeks[.]” (Id.). Based on this information Pierce recommended that the grievance be

denied as moot, Wills concurred, and the Administrative Review Board ultimately

agreed. (Doc. 1 at 19, 20).

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

counts:

Claim 1: Eighth Amendment deliberate indifference claim against Jane Doe

1 for the treatment she provided on June 20, 2022;

Claim 2: Eighth Amendment deliberate indifference claim against

Defendant Hamby for the treatment she provided at Plaintiff’s cell

front on June 24, 2022;

Claim 3: Eighth Amendment deliberate indifference claim against

Defendants Crain, Pierce, Wills or Kuforiji for their handling of

Plaintiff’s grievances about his condition in June of 2022;

Claim 4: Monell claim against Wexford for understaffing Menard’s

healthcare unit.

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 state a claim for deliberate indifference to a serious medical need, an inmate

must show that (1) he suffered from an objectively serious medical condition; and (2) the

defendant was deliberately indifferent to a risk of serious harm from that condition.

Rasho v. Elyea, 856 F.3d 469, 475-76 (7th Cir. 2017). “Every claim by a prisoner that he has

not received adequate medical treatment is not a violation of the Eighth Amendment.”

Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). To determine if a medical professional

acted with deliberate indifference, courts look to the provider’s subjective state of mind.

Id. at 728. An inmate need not show that a doctor explicitly intended harm or believed it

would occur, but he must show more than negligence, medical malpractice, or even

objective recklessness. Id. A delay in treating non-life-threatening but painful conditions

may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily

prolonged an inmate's pain. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.2010). “[T]he

length of delay that is tolerable depends on the seriousness of the condition and the ease

of providing treatment.” Id.

Plaintiff’s allegations against Jane Doe 1 are sufficient to proceed at this early

juncture, although it is possible these allegations will ultimately fail given the available

evidence. Specifically, Plaintiff alleges he saw Jane Doe 1 on or around June 20, 2022, at

which time he presented with conditions consistent with a possible urinary infection.

Jane Doe 1 gave him ibuprofen and sent him back to his housing area. He contends that

this treatment was wholly ineffective and left him to suffer in pain. While this could

support a deliberate indifference claim, he attached medical notes from the visit that

show Jane Doe 1 also referred him to a doctor based on her observations. (Doc. 1 at 9).

This tends to suggest that Jane Doe 1 took all the action she was authorized to take, and

that a higher level of care had to come from a doctor or nurse practitioner. Nevertheless,

there is no suggestion she expedited Plaintiff’s situation, and the course of action she took

did allow him to suffer for 4-8 more days by his own allegations, so at this juncture he

may proceed against Jane Doe 1.

Plaintiff attempts to bring a similar claim against Defendant Hamby, a nurse he

saw at his cell front around June 24, 2022. Plaintiff again presented to Hamby with

symptoms of a possible urinary infection, and he informed her of the medications he

usually was prescribed to manage such a situation. He claims Hamby was upset that he

tried to demand care and that she then refused assistance. However, as with Jane Doe 1,

the records he attached to his complaint tell a slightly different story. See e.g., Gutierrez v.

Peters, 111 F.3d 1364, 1374 (7th Cir. 1997) (noting that a plaintiff can plead himself out of

court by alleging facts which show he has now claim, and finding that a plaintiff did just

that when he submitted a detailed account of the treatment he received over 10 months

for an infected cyst that included a few delays while waiting to see a doctor). In the

records, Hamby noted that Plaintiff was seen at his cell front around 3:10am, and that she

referred him for follow-up later that day with a doctor or nurse practitioner. (Doc. 1 at

15-16). The grievance response from Angela Crain indicated that on June 24, 2022, nurse

practitioner Moldenhauer was presented with Plaintiff’s chart, and he prescribed

antibiotics and scheduled a follow-up appointment. (Doc. 1 at 14). Against this

backdrop, Plaintiff cannot maintain a plausible deliberate indifference claim against

Defendant Hamby, because at most she did not immediately escort him to a medical

provider (it’s unlikely any would be at the prison at 3 in the morning) and instead she

brought his chart for review by the nurse practitioner within the scope of the same day.

Hamby’s action in quickly referring Plaintiff to a provider for antibiotics cannot be

considered deliberate indifference, thus, Claim 2 is dismissed without prejudice.

Plaintiff also attempts to fault the Defendants who handled his grievance for

deliberate indifference, but this theory fails for multiple reasons. First, the handling of a

grievance without personal involvement in an underlying issue is insufficient to support

a claim, even if mistakes are made in the grievance processing. See e.g., Owens v. Hinsley,

635 F.3d 950, 953 (7th Cir. 2011). As for Defendants Pierce and Kuforiji, the most Plaintiff

alleges is that they were responsible for participating in processing the grievance at the

prison level or on appeal, but this is not enough to state a claim.

Second, Plaintiff faults Defendant Wills for having knowledge of his issue but

failing to intervene or expedite assistance. Claims can sometimes be made against

officials for their investigation into a grievance or their failure to exercise their authority

to remedy a situation, but the grievance documentation in this case does not sustain a

plausible claim of this nature. See e.g., Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015).

Plaintiff’s evidence contradicts the notion that Wills turned a blind eye because Wills

expedited his grievance as an emergency and by the time it came back to him for final

review the memorandum indicated that Plaintiff had been provided antibiotics and he

had been scheduled for a follow-up appointment. Thus, Wills initially acted by

expediting the matter for grievance and medical officials, and he subsequently approved

of the disposition of the grievance as moot when care had been provided. On this view

of events, it is not apparent that Wills was deliberately indifferent or turned a blind eye

to a serious issue.

Third, Plaintiff names Defendant Angela Crain, the individual from the medical

unit who prepared a memorandum in response to his grievance that documented

ongoing care, but he does not explain what Crain did that harmed him. At most, he says

Crain prepared the memorandum wherein she stated that he was denied care, but this is

not an accurate recitation of the memorandum, because it goes on to say he received care.

In sum, there are no plausible allegations that demonstrate Defendants Pierce, Kuforiji,

Wills, or Crain were deliberately indifferent to Plaintiff’s situation, so Claim 3 will be

dismissed without prejudice.

At the end of the complaint, Plaintiff baldly asserts that Defendant Wexford

Health Sources, Inc., should be held liable because they understaff Menard, which causes

delays in treatment. 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). Here, Plaintiff has identified a policy, custom, or practice of understaffing, but

he has not demonstrated or even plausibly suggested that understaffing caused any

delays in his own ability to secure treatment for his urinary issues. Thus, Claim 4 is

dismissed as insufficiently pled.

Motion for Recruitment of Counsel (Doc. 3)

Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is DENIED at this time

without prejudice. There is no constitutional or statutory right to counsel in federal civil

cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433

F.3d 1001, 1006 (7th Cir. 2006). In determining whether to recruit counsel, the Court

considers two factors—whether Plaintiff has made reasonable attempts to recruit his own

counsel; and whether he is competent to represent his own interests. See Pruitt v. Mote,

503 F.3d 647, 654 (7th Cir. 2007). Plaintiff alleges that he attempted to contact at least

three lawyers or law firms, but he has not attached proof of his efforts. (Doc. 3 at 1). Even

if he had attached proof, the case is still at the earliest phase of the litigation, and he has

expressed only generic concerns about his ability to proceed on his own. As such, the

Motion is denied without prejudice. If Plaintiff later wishes to renew the motion, he

MUST include copies of his efforts to seek his own counsel.

Disposition

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

initial screening as described above against Defendant Jane Doe 1. The Clerk of Court is

DIRECTED to ADD the Warden of Menard in official capacity to assist in identifying

Jane Doe 1. To help with this process, Plaintiff must submit a Notice to the Court within

30 days giving any information he has about Jane Doe 1 such as her physical appearance,

dates on which he interacted with her, and any nicknames she may have. Once the

Warden appears, a schedule will be set for the Warden to review Plaintiff’s information,

to respond, and for Plaintiff to move to replace Jane Doe 1.

By contrast, Claims 2-4 are dismissed without prejudice as insufficiently pled, and

the Clerk of Court is DIRECTED to TERMINATE Defendants Wexford Health Sources,

Inc., Angela Crain, Anthony Wills, Kelly Pierce, Adewale Kuforiji, and L. Hamby.

The Clerk of Court is DIRECTED to prepare for the Warden of Menard (official

capacity only): (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 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. However, the Warden need not file an answer

because he or she has been added solely to participate in the identification of Jane Doe

1.

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 7 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.

As explained above, Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is

DENIED without prejudice. Plaintiff’s Motion for Status (Doc. 11) is GRANTED by the

issuance of this Order.

IT IS SO ORDERED.

Dated: October 28, 2024

/s David W. Dugan

______________________________

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.