The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EUGENE WRIGHT, )
)
Plaintiff, )
)
v. ) No. 23-cv-813-RJD
)
)
SARA STOVER and WEXFORD HEALTH)
SOURCES, INC., )
)
)
Defendants.1 )
ORDER
DALY, Magistrate Judge:
Plaintiff, formerly incarcerated within the Illinois Department of Corrections (“IDOC”) at
Lawrence Correctional Center (“Lawrence”), filed this lawsuit pursuant to 42 U.S.C. §1983. Doc.
1. He alleges that he injured his left leg while playing basketball in May 2018. Id., p. 6. From
May 2018 until October 2020, Plaintiff requested medical care from Defendant Stover for swelling,
buckling, and popping in his left knee. Id. At each appointment, Defendant Stover told him that
nothing was wrong. Id. In October 2020, Plaintiff met with Nurse Practitioner Luking for the first
time. Id. She recommended magnetic resonance imaging on Plaintiff’s knee. Id. However,
Plaintiff was not transferred from the prison to an outside hospital for a radiology appointment until
May 2021 because of a Wexford Health Sources, Inc. (“Wexford”)2 custom of denying or delaying
offsite medical treatment to maximize company profits. Id. Moreover, at that appointment he
received a CT scan instead of an MRI; the CT scan revealed a “breakage” that had healed. Id. Later
that year, Plaintiff finally saw a doctor and underwent an MRI. Id.
1 The Clerk of Court is directed to update the docket to reflect that the full and correct name of “Wexford Health” is
“Wexford Health Sources, Inc.”
Following the Court’s preliminary review conducted pursuant to 28 U.S.C. §1915A, Plaintiff
proceeds on two claims:
Count 1: Defendant Stover denied Plaintiff adequate medical care for
his left leg injury beginning in 2018, in violation of the Eighth
Amendment.
Count 2: Defendant Wexford delayed or denied Plaintiff’s referral for
outside testing and treatment of his left leg injury in order to
reduce costs, resulting in prolonged or exacerbated injuries, in
violation of the Eighth Amendment.
Defendant Wexford moves for summary judgment, contending that Plaintiff failed to exhaust his
administrative remedies regarding his claim against Wexford. Docs. 33, 34, 35. Plaintiff did not
file a Response. The Court held a hearing on February 27, 2025. Doc. 50. Also pending before
the Court is Plaintiff’s Motion for Recruitment of Counsel. Doc. 36.
Exhaustion Requirements
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative
remedies prior to filing lawsuits in federal court. “[A] prisoner who does not properly take each step
within the administrative process has failed to exhaust state remedies.” Pozo v. McCaughtry, 286
F.3d 1022, 1024 (7th Cir. 2002). “[A] suit filed by a prisoner before administrative remedies have
been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the
merits, even if the prisoner exhausts intra-prison remedies before judgment.” Perez v. Wisconsin
Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll dismissals under § 1997e(a) should be
without prejudice.” Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a written
grievance within 60 days after the discovery of the incident, occurrence or problem, to his or her
institutional counselor. 20 ILL. ADMIN. CODE § 504.810(a). If the complaint is not resolved through
a counselor, the grievance is considered by a Grievance Officer who must render a written
recommendation to the Chief Administrative Officer — usually the Warden — within 2 months of
receipt, “when reasonably feasible under the circumstances.” Id. §504.830(e). The CAO then
advises the inmate of a decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within 30
days to the Administrative Review Board (“ARB”) for a final decision. Id. §_504.850(a); see also
Dole v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). The ARB will submit a written report of
its findings and recommendations to the Director who shall review the same and make a final
determination within 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and (e).
Inmates who intend to file suit must follow all steps and instructions in the grievance process
before filing with the Court in order to “[allow prisons] to address complaints about the program
[they administer] before being subjected to suit, [reduce] litigation to the extent complaints are
satisfactorily resolved, and [improve] litigation that does occur by leading to the preparation of a
useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007). However, an inmate is only required to
exhaust the administrative remedies that are available to him. Lewis v. Washington, 300 F.3d
829,833 (7th Cir. 2002).
Plaintiff’s grievance records
Defendant Wexford subpoenaed Plaintiff’s grievance records from the ARB and attached
those records as exhibits to its summary judgment motion. Docs. 34-1 and 34-2. Defendant also
obtained Plaintiff’s Lawrence grievance records from the Illinois Attorney General’s office. Doc.
34-2. The records received pursuant to the ARB subpoena reflect that Plaintiff submitted a
grievance dated June 10, 2018 that provides the following summary:
On May 27th while playing basketball in the gym I hurt my left leg. I
was taken from the gym to health care. I explained to the nurse I jump
[sic] came down heard a pop in my leg an immediately fell to the floor.
I was given an ace wrap, crutches, and fifteen 200 mg ibuprofen I
believe. I was told I would be called back over in a few days to see
the doctor. On May 29th I signed up for a call pass to the health care
for May 30th. On May 20th I saw the nurse practitioner. She gave me
thirty 400 mg ibuprofen and told me I would be called over again in a
week. I hurt my left leg two weeks ago no examination was ever
[done] now my leg is [swollen] from my knee down to my foot with
a stiffness in my knee. I have no idea why my leg is more swollen now
than it was the day I hurt it. I just hope the failure of health care to
examine and determine what is wrong with my leg does not effect my
mobility long term.
Relief Request: To have my leg examined/x-ray to determine if
something in my leg is torn and/or fractured that may require surgery
and to get the treatment I need for my leg to heal properly.
Id., p. 148. Plaintiff’s counselor responded the next day, stating that Plaintiff “was to follow up with
nurse practitioner. Call pass scheduled for 6/14/18.” Id. Plaintiff submitted the grievance to the
grievance officer, who recommended denying the grievance and the Warden concurred on August
6, 2018. Id., p. 147. Plaintiff submitted another grievance to the grievance officer dated June 25,
2018, writing “this grievance is an appeal to the grievance I submitted June 10th. The counselor’s
response…did not address my concern.” Id., p. 150. The June 25, 2018 grievance was given the
same number (07-18-80) as the June 10, 2018 grievance and appears to have been treated as one
grievance. Doc. 34-2, pp. 196-201.
Plaintiff appealed to the ARB who also denied the grievance on November 27, 2018, finding
that “offender has been seen and treated. All medical treatment must be ordered by IDOC
physicians and is not a matter of inmate preference.” Doc. 34-1, p. 146.
Plaintiff filed suit on March 8, 2023. Defendant Stover raised and then abandoned the
exhaustion defense. Doc. 49. Apart from the June 2, 2018 and June 25, 2018 grievances, none of
the grievance records mention treatment for Plaintiff’s leg. Id.
In his Complaint, Plaintiff alleged that to exhaust his administrative remedies, he “filed a
grievance after conversing with the counselor. Appealed the counselor’s response. Appealed the
grievance officer’s response to the ARB. Months later submitted another grievance was told it was
a duplicate.” Doc. 1, p. 4. Plaintiff attached the duplicate grievance to his Complaint; it is dated
July 12, 2018 and his counselor responded to him on that date, noting the grievance was a duplicate
to grievance #7-18-80 and that Plaintiff saw the nurse practitioner on June 13, 2018.
Pavey Hearing
Plaintiff testified that nothing in the institutional rules required him to identify Wexford in
any grievance. He explained that he fully exhausted a grievance identifying Nurse Practitioner
Stover, and she was a Wexford employee. He further testified that in 2018, Nurse Practitioner Stover
noted that Plaintiff needed an MRI, but Wexford would not send him out for the MRI until 2021
(and he had to have a CT scan first). After he exhausted the grievance regarding Nurse Practitioner
Stover in 2018, Plaintiff attempted to submit additional grievances regarding his leg (at least once a
year for four years), but they were returned to him as duplicates.
Discussion
When comparing Plaintiff’s grievance records to his claim against Wexford in his Complaint,
it seems that Plaintiff did not exhaust his administrative remedies against Wexford. The 2018
grievances that were numbered #7-18-80 and fully exhausted specifically mention Plaintiff’s claim
against Defendant Stover: that she provided no treatment for Plaintiff’s leg. As Plaintiff alleged in
his Complaint and reiterated at the Pavey hearing, he was told “for years” after the initial injury that
there was nothing wrong with his leg. These allegations are distinct and make a separate claim from
the allegations against Wexford in his Complaint: that after Plaintiff saw Nurse Practitioner Luking
in October 2020 and she recommended an MRI, Wexford delayed and denied the MRI to save
money. The records before the Court reflect that Plaintiff did not submit any grievances regarding
his leg after 2018.
At the Pavey hearing, however, Plaintiff testified that Nurse Practitioner Stover wrote in her
2018 notes that Plaintiff needed an MRI. Plaintiff did not make this allegation in his Complaint and
it seemingly contradicts the allegations in his Complaint and his other testimony at the Pavey hearing
that Nurse Practitioner Stover told him there was nothing wrong with his leg for two and a half years.
The Court does not have Plaintiff’s medical records. Assuming that a note by Nurse Practitioner Stover
recommending an MRI in 2018 exists, and assuming that Plaintiff did not have access to his medical
records prior to filing suit and otherwise had no knowledge that Nurse Practitioner Stover made such
a note, then he could not have submitted a grievance regarding the denial of the MRI starting in
2018.
Of course, at this point, the Court can only speculate regarding whether Nurse Practitioner
Stover recommended an MRI in 2018. The Court also considers Plaintiff’s testimony that he
attempted to submit additional grievances at Lawrence regarding treatment for his leg that were
returned to him as “duplicates”, but none of those grievances are in the record. However, the Court
notes that Plaintiff attached a grievance deemed “duplicate” to his Complaint and that grievance is
listed in the Lawrence grievance log with no mention of whether it was deemed duplicate; the
grievance itself is not within the Lawrence grievance records. Doc. 1, p. 8; Doc. 34-2. Thus, one
could infer that the absence of any “duplicate” grievances regarding Plaintiff’s leg post-2018 in
Plaintiff’s Lawrence grievance records does not conclusively indicate whether he attempted to
submit any. Defendant carries the burden on its Motion for Summary Judgment, and at this time,
Defendant has not met that burden. At the Pavey hearing, however, Wexford was not prepared to
meaningfully respond to Plaintiff’s arguments because Plaintiff had not filed a Response to their
Motion. Accordingly, Defendant’s Motion is DENIED WITHOUT PREJUDICE.
Plaintiff’s Motion for Recruitment of Counsel
There is no statutory or constitutional right to counsel in a civil case. However, this Court
may recruit an attorney to represent a litigant who cannot afford counsel. 28 U.S.C. §1915(e). When
presented with a request to appoint counsel, the Court makes the following inquiries: (1) has the
indigent plaintiff made a reasonable attempt to obtain counsel or effectively been precluded from
doing so, and (2) given the difficulty of the case, does the plaintiff appear competent to litigate it
himself. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). Here, Plaintiff unsuccessfully
attempted to obtain representation in this case. Doc. 3, p. 5; Doc. 36, p. 1. The underlying issues
in Plaintiff’s claim (whether the delay or denial of diagnostic treatment affected the outcome and/or
severity of his leg injury) are complex enough to warrant the recruitment of counsel.
Therefore, in accordance with 28 U.S.C. § 1915(e)(1) and Local Rule(s) 83.8 and 83,
Attorney Dulijaza “Julie” Clark of the firm Edelman, Combs, Latturner, Goodwin LLC is
ASSIGNED to represent Plaintiff Eugene Wright in this civil rights case. On or before March 18,
2025, assigned counsel shall enter her appearance in this case. Attorney Clark is free to share
responsibilities with an attorney in her firm who is also admitted to practice in this district court.
Assigned counsel, however, must enter the case and shall make first contact with Plaintiff,
explaining that another attorney may also be working on the case. Plaintiff should wait for his
attorney to contact him in order to allow counsel an opportunity to review the court file.
The Clerk of Court is DIRECTED to transmit this Order to Attorney Clark. The electronic
case file is available through the CM-ECF system.
Now that counsel has been assigned, Plaintiff shall not personally file anything in this
case, except a pleading that asks that he be allowed to have counsel withdraw from representation.
If counsel is allowed to withdraw at the request of Plaintiff, there is no guarantee the Court will
appoint other counsel to represent Plaintiff.
Counsel is ADVISED to consult Local Rules 83.8-83.14 regarding pro bono case
procedures.
Plaintiff and his counsel are ADVISED that, because Plaintiff is proceeding in forma
pauperis, if there is a monetary recovery in this case (either by verdict or settlement), any unpaid
out-of-pocket costs must be paid from the proceeds. See SDIL-LR 3.1(b)(4). If there is no recovery
in the case (or the costs exceed any recovery), the Court has the discretion to reimburse expenses.
Section 2.6 of this Court’s Plan for the Administration of the District Court Fund provides
for a degree of reimbursement of pro bono counsel’s out-of-pocket expenses, as funds are available.
The Plan can be found on the Court’s website, as well as the form motion for out-of-pocket expenses
and an Authorization/Certification for Reimbursement. Any motion for reimbursement must be
made within 30 days from the entry of judgment, or reimbursement will be waived. SDIL-LR
83.13(b). The funds available for this purpose are limited, however, and counsel should use the
utmost care when incurring out-of-pocket costs. In no event will funds be reimbursed if the
expenditure is found to be without a proper basis. The Court has no authority to pay attorney’s fees
in this case. No portion of a partial filing fee assessed pursuant to 28 U.S.C. § 1915 will be
reimbursed. Counsel may be reimbursed for PACER fees for this case.
The district court has entered into an agreement with attorney Alan Mills and the Uptown
People’s Law Center to consult with lawyers on issues in these cases, including substantive and
procedural questions (both legal and practical) and dealing with the client. Mr. Mills can be reached
by email at alan@uplcchicago.org. He can also be reached by phone at 773-769-1411; however,
email is his preferred means of contact. His services are available to counsel free of charge, as long
as counsel is representing a prisoner pro bono on a case in the district. In addition, the Court’s
website, www.ilsd.uscourts.gov, includes a guide for attorneys which is available as a resource. It
is listed under “Attorney Information” as “Guide for Attorneys Recruited to Represent Plaintiffs in
Section 1983 Cases.” The Court encourages appointed counsel to consult it and Mr. Mills as needed.
As of this date, Plaintiff’s contact information is:
Eugene Wright
818 E. 63, #445
Chicago, Il 60637
Conclusion
The Motion for Summary Judgment by Wexford Health Sources, Inc. (Doc. 33) is DENIED
WITHOUT PREJUDICE. Plaintiff’s Motion for Recruitment of Counsel (Doc. 36) is GRANTED
and Attorney Dulijaza “Julie” Clark is assigned to represent Plaintiff. The Court will set new
Scheduling Order deadlines after counsel enters her appearance and will set a deadline for
Defendants to again raise the exhaustion defense.
IT IS SO ORDERED.
DATED: March 4, 2025
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge