Davila v. Barwick

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

IVAN DAVILA, #M55646, )

)

Plaintiff, )

)

vs. ) Case No. 25-cv-00168-SMY

)

JOHN BARWICK, )

DR. PERCY MYERS, )

DENTIST NATHAN CHAPMAN, )

NURSE JAMES, )

LT. J. DUDEK, )

SGT. ENGSTROM, )

C/O JOHN DOE 1-3, )

KITCHEN SUPERVISORS JOHN DOE 4-6, )

and WEXFORD HEALTH SOURCES, INC., )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Ivan Davila, an inmate in the custody of the Illinois Department of Corrections

currently incarcerated at Pinckneyville Correctional Center, filed a Complaint under 42 U.S.C.

§ 1983 for constitutional deprivations stemming from allegedly inadequate post-operative care and

nutrition following removal of a wisdom tooth in July 2024. He seeks monetary and injunctive

relief.1 (Doc. 1). The Complaint is now subject to screening under 28 U.S.C. § 1915A, which

requires this Court to dismiss any portion that is legally frivolous or malicious, fails to state a claim

for relief, or seeks money damages from an immune defendant. Id.

The Complaint

Plaintiff makes the following allegations in the Complaint (Doc. 1, pp. 7-15): During his

1 Plaintiff seeks a verbal apology and a “restraining order against defendants so [he] will never have to see them again

and won’t ever have to deal with the mistreatment by them ever again.” (Doc. 1, p. 15).

incarceration at Pinckneyville, Plaintiff’s lower left wisdom tooth was extracted at an offsite

facility on July 8, 2024. Id. at 7. Following surgery, he was given a bag containing gauze, a

syringe, antibiotics, pain medication, and post-operative care instructions. Plaintiff was denied

appropriate care and nutrition following his return to prison from July 8-17, 2024. Id.

Dr. Nathan Chapman, the prison’s dentist, examined Plaintiff when he returned from

surgery and noted that his wound was stitched closed. The dentist prescribed ibuprofen (400 mg),

cephalexin (500 mg), and Tylenol 3. When Plaintiff requested a soft diet, Dr. Chapman said he

could “eat whatever [he] wants” but warned him to “stay away from the surgical site” when

chewing. Plaintiff again requested a soft diet, but the dentist said, “[N]o, you will be fine.” Id.

That night, Plaintiff received a meal for the first time since 5:00 p.m. on July 7, 2024.

When he opened his mouth, Plaintiff “felt and heard a loud rip” that coincided with sudden and

severe pain. Plaintiff took his medication and went to bed without eating on July 8, 2024. Id.

When he awoke the next morning, Plaintiff’s face and throat were swollen and sore. The

nurses observed him struggling to open his mouth and swallow pills. He could not speak and ate

nothing on July 9, 2024. Id. at 7-8.

Plaintiff complained of weakness without food to Nurse James on July 10, 2024. Id. at 8.

Nurse James disregarded his complaint and gave him more pain medication. Plaintiff became

distressed about his inadequate nutrition and medical care, and requested a crisis intervention. He

vomited and fainted the same evening, and his cellmate had to care for him. Id.

Dr. Chapman met with Plaintiff on July 11, 2024. He reported feeling unwell and hungry

because he had not eaten since July 7, 2024. He complained of swelling and pain that prevented

him from swallowing, spitting, eating, or even opening his mouth to speak. He also reported his

recent nausea, vomiting, and fainting episode. Dr. Chapman diagnosed him with a “severe dry

socket” and indicated that his jaw bone was “clearly visible.” Id. He recommended an emergency

referral to the oral surgeon, but, after leaving the room and returning, indicated that he would treat

Plaintiff at the prison. Plaintiff again broke down and asked for a meeting with mental health.

Following the meeting, “dental” had “medical staff” prescribe two Boost milks. Plaintiff also

received a liquid diet tray consisting of four cups of broth and one juice. Id. at 9.

The next day, on July 12, 2024, Plaintiff did not receive his liquid diet trays for breakfast,

lunch, or dinner. While he slept, the gauze and medicine fell out of his mouth. The dentist

previously told him to get immediate medical attention if this occurs. Plaintiff told correctional

officers and a nurse about the issue, but they ignored him. When he reported the denial of a liquid

diet tray, however, C/O Dickerson agreed to speak with a kitchen supervisor (Kitchen Supervisors

John Doe 4-6) during lunch, but said that it was up to them to decide what trays to send. Plaintiff

also gave Dickerson a kite to pass along to medical requesting proper dental care, medical care,

and nutrition. Dickerson returned and indicated that Nurse James refused to treat Plaintiff. This

prompted Plaintiff to go out to the nurses’ station and make a personal plea to Nurse James.

Plaintiff was still denied treatment. Sergeant Knope, C/O Rogers, and C/O Dickerson all tried to

address the dental, medical, and dietary issues, to no avail. Id.

Plaintiff was forced to take his medication and lock up at 3:00 p.m. Id. at 10. Within an

hour, he became nauseous and drowsy. His head, chest, stomach, heart, and body began hurting,

and he fainted again. Plaintiff’s cellmate called out to Sergeant Engstrom. When she arrived,

Plaintiff was sweating profusely and slurring his words as he reported his symptoms. Sergeant

Engstrom said there was nothing she could do, and she left. Plaintiff asked her to call a “Code 3”

medical emergency, but she ignored his request. Within five minutes, Plaintiff began vomiting,

sweating, and shaking uncontrollably. He pressed the “all call” button to summon help and banged

on his cell door, but no one responded. He called out to an inmate porter, who said all officers

were in the bubble “laughing.” Id. When medical staff and officers finally showed up to the cell

thirty minutes later, Plaintiff was passed out on the floor in a pool of sweat and vomit. Correctional

officers placed him in restraints, aggressively dragged him through the vomit, and transported him

on a stretcher to the health care unit (HCU). Dr. Percy Myers never saw or examined Plaintiff, but

cleared him for return to his cell. Id.

Lieutenant Dudek then stormed into the ER and threatened to mace Plaintiff if he did not

get up and return to his cell. Plaintiff could not move and begged for medical treatment. The

lieutenant brought him a wheelchair and pushed him out of the HCU. Plaintiff vomited again and

began to faint. As he lost consciousness, Plaintiff heard Dudek ask C/O John Doe if he wanted to

“have fun” and “push this piece of shit to his cell and make sure he doesn’t come out.” Id. at 10.

C/O John Doe 1-3 then pushed the unconscious Plaintiff to the R-3-B Wing, carried him up the

stairs, dropped him on the floor, and left him to die. Id. at 11. Plaintiff’s cellmate returned from

dinner and found him unresponsive on the floor in a pool of vomit. When his cellmate told

C/O John Doe that he did not feel safe locked up with a cellmate who was having a medical

emergency, the officer told him to lock up with Plaintiff or go to disciplinary segregation.

Plaintiff’s cellmate chose to stay with him. Id.

Lieutenant Bryant eventually appeared at the cell door, and Plaintiff’s cellmate reported

Plaintiff’s medical emergency and staff’s refusal to address his medical and nutritional needs.

Lieutenant Bryant instructed the inmate to keep administering care while he called for help.

Moments later, Bryant and Dudek returned and escorted Plaintiff back to the HCU for treatment.

Plaintiff told Bryant about the denial of a liquid diet tray and his inability to eat solid food due to

his pain and infection. Bryant agreed to get Plaintiff a liquid diet tray, and he did so. Id.

Plaintiff was then placed under medical observation for 24 hours. He was moved to the

crisis watch wing and left in a cell filled with flies and spiders and walls stained with urine, feces,

and food. No one checked on him. He was offered no shower and no new clothing. He was given

no liquid diet trays by the Kitchen Supervisors 4-6. Plaintiff was left to die. Id.

On July 13, 2024, Lieutenant Simmons and C/O Adams found Plaintiff having a panic

attack and suffering from severe cramps. Id. at 12. They pushed him to the ER, where he began

vomiting uncontrollably. Sergeant Spencer, C/O Spencer, and Lt. Simmons helped him onto a

gurney, and Nurses Erin, Caitlin, Alley, and Brandy tried to help him. For almost ninety minutes,

nurses worked to persuade Dr. Myers to order intravenous fluids and sodium shots. Labs revealed

health problems, and he was prescribed more Boost milk and Phas-Nak to help nourish him.

Plaintiff had to wait several additional days to actually receive the supplements and a liquid diet

because dietary did not receive the doctor’s orders. When Kitchen Supervisors Doe 4-6 finally

began serving him a liquid diet on July 17, 2024, they did not give him 2,000 calories per day. Id.

Plaintiff filed many detailed grievances about this matter as part of his effort to fight for

food and medicine. Warden John Barwick never responded to any of them by reaching out,

speaking with him, or investigating his complaints. Plaintiff claims that warden turned a blind eye

to the grievances and the misconduct giving rise to them. Plaintiff adds that Wexford Health

Sources, Inc. has a history of lawsuits for misconduct of its employees. Id. at 13.

Preliminary Dismissals

Plaintiff mentions numerous individuals in the statement of his claim but does not identify

them as defendants in the Complaint, including Sergeant Knope, C/O Rogers, C/O Dickerson, C/O

Adams, Sergeant Spencer, C/O Spencer, Lt. Bryant, Lt. Simmons, Nurse Erin, Nurse Caitlin,

Nurse Alley, Nurse Brandy, and others. Therefore, the Court will not treat these individuals as

defendants, and all claims against them are considered dismissed. See FED. R. CIV. P. 10(a) (noting

that the title of the complaint “must name all the parties”).

Discussion

The Court designates the following claims in this pro se Complaint:

Count 1: Eighth Amendment claim against Defendants for exhibiting deliberate

indifference to Plaintiff’s medical needs following wisdom tooth surgery

from July 8-17, 2024.

Count 2: Eighth Amendment claim against Defendants for denying Plaintiff adequate

nutrition in the form of a liquid diet containing 2,000 calories per day

following wisdom tooth surgery from July 8-17, 2024.

Count 3: Illinois negligence claim against Defendants for their inadequate post-

operative care of Plaintiff from July 8-17, 2024.

Any claim mentioned in the Complaint but not addressed herein is considered dismissed without

prejudice as inadequately pled under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Count 1

To articulate an Eighth Amendment claim for the denial of dental care, a plaintiff must

describe a sufficiently serious medical need and deliberate indifference on the part of each

defendant. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). An objectively serious medical

need is one that has been diagnosed as requiring treatment, one involving an obvious need for

treatment, or one causing substantial pain. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.

1997). Plaintiff’s severe dry socket, infection, pain, fainting, nausea, and related medical

emergencies are sufficiently serious to support an Eighth Amendment claim. Board v. Farnham,

394 F.3d 469, 480 (7th Cir. 2005) (dental pain, bleeding gums, and broken teeth considered

objectively serious).

Deliberate indifference occurs when a defendant “know[s] of and disregard[s] an excessive

risk to inmate health.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A delay in treatment

amounts to deliberate indifference when it unnecessarily prolongs pain or exacerbates an injury.

Gutierrez, 111 F.3d at 1373. Plaintiff states a claim for deliberate indifference against the medical

defendants, including Dr. Chapman, Dr. Myers, and Nurse James. According to the allegations,

all three defendants delayed or denied Plaintiff necessary post-operative care following wisdom

tooth surgery from July 8-17, 2024. As a result, he suffered from a severe dry socket, infection,

and prolonged pain. Count 1 will proceed against Chapman, Myers, and James.

The allegations also articulate a claim against the non-medical prison officials, including

Lieutenant Dudek, Sergeant Engstrom, and C/O John Doe 1-3. Each officer allegedly responded

to Plaintiff’s pleas for medical treatment by refusing to help him obtain treatment, delaying access

to treatment, and/or leaving him in his cell to die. Green v. Beth, 663 F. App’x 471, 473 (7th Cir.

2016) (deliberate indifference shown by inexplicable delay of six days in treating serious dental

pain and broken teeth caused by biting a rock in food). Count 1 will proceed against Dudek,

Engstrom, and Doe 1-3.

The allegations also state a claim against Warden Barwick. Plaintiff alleges he filed

numerous grievances, including emergency grievances directed to the warden, during the relevant

time period (July 8-17, 2024). In them, he described his dental and medical issues in detail. Even

so, the warden never spoke with him, investigated his complaints, or helped him secure treatment.

Plaintiff claims the warden turned a blind eye to his ongoing pain and infection. Count 1 will

receive further review against this defendant.

However, this claim will be dismissed against Wexford Health Sources, Inc. To proceed

with a claim against the private medical corporation, Plaintiff must allege that a policy, custom, or

widespread practice attributable to the corporation caused a violation of his constitutional rights.

Shields v. Illinois Dept. of Corr., 746 F.3d 782,786 (7th Cir. 2014) (citing Monell v. Dept. of Soc.

Servs., 436 U.S. 658 (1978)). Here, Plaintiff alleges only that Wexford employed one or more

medical defendants and is frequently named in lawsuits. But because respondeat superior liability

is not recognized under § 1983, Plaintiff cannot proceed against Wexford simply for employing

wrongdoers. Id. Moreover, Wexford’s tendency to get named in lawsuits is not indicative of a

policy, custom, or practice that caused the constitutional injuries here. Count 1 will be dismissed

without prejudice for failure to state a claim against Wexford.

Count 1 will also be dismissed against Kitchen Supervisors John Doe 4-6 because the

allegations do not suggest that these defendants were involved in decisions about Plaintiff’s dental

or medical care.

Count 2

The Eighth Amendment guarantees an inmate’s right to a healthy and habitable

environment that includes nutritionally adequate food prepared and served under conditions posing

no immediate danger to his health. French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1983).

Allegations of a nutritionally deficient diet can support a claim of cruel and unusual punishment.

See Smith v. Dart, 803 F.3d 304 (7th Cir. 2015) (citing Antonelli v. Sheahan, 81 F.3d 1422 (7th

Cir. 1996)).

Plaintiff alleges that Dr. Chapman, Dr. Myers, Nurse James, Kitchen Supervisors John Doe

4-6 all refused to provide him with a liquid diet tray and/or nutritionally adequate diet between

July 8-17, 2024, resulting in weakness, loss of consciousness, and unnecessary pain, among other

things. Warden Barwick allegedly ignored or turned a blind eye to this deprivation of food that

Plaintiff described in numerous grievances, including emergency grievances directed to this

defendant. Based on these allegations, Count 2 survives screening against Barwick, Chapman,

Myers, James, and Kitchen Supervisors John Doe 4-6. However, this claim will be dismissed

without prejudice against all other defendants based on their lack of personal involvement in this

constitutional deprivation.

Count 3

This Court will exercise supplemental jurisdiction over Plaintiff’s negligence claim under

Illinois law. See 28 U.S.C. § 1367(a). A plaintiff bringing a claim for negligence under Illinois

law must set forth facts suggesting that each defendant owed him a duty of care, breached the duty,

and the breach was the proximate cause of the plaintiff’s injury and damages. Thompson v.

Gordon, 948 N.E.2d 39, 45 (Ill. 2011) (citing Iseberg v. Gross, 879 N.E.2d 278 (2007)).

Plaintiff’s allegations are sufficient to support a negligence claim for the denial of proper

medical care following wisdom tooth surgery from July 8-17, 2024 against Dr. Chapman,

Dr. Myers, Nurse James, Lt. Dudek, Sergeant Engstrom, C/O John Doe 1-3, and Warden Barwick.

The allegations are also sufficient to support a negligence claim for the denial of adequate nutrition

following surgery from July 8-17, 2024 against Dr. Chapman, Dr. Myers, Nurse James, Kitchen

Supervisors John Doe 4-6, and Warden Barwick.

Although these negligence claims survive preliminary review, Plaintiff must provide an

affidavit and medical report in compliance with Illinois state law, i.e., 735 ILCS § 5/2-622, stating

that “there is a reasonable and meritorious cause” for litigation. See Young v. United States, 942

F.3d 349 (7th Cir. 2019). He must do so before summary judgment on the merits or face dismissal

of one or more of his negligence claims. Count 3 will proceed against Chapman, Myers, James,

Dudek, Engstrom, John Doe 1-6, and Warden Barwick.

Identification of Unknown Defendants

Plaintiff’s claims survive screening against unidentified defendants, including C/O John

Doe 1-3 and Kitchen Supervisor John Doe 4-6. These defendants must be identified with

particularity before the lawsuit can be served on them. Plaintiff will have an opportunity to engage

in limited discovery to ascertain the identity of each defendant. Rodriguez v. Plymouth Ambulance

Serv., 577 F.3d 816, 832 (7th Cir. 2009). John Barwick is the current warden of Pinckneyville and

is already named as a defendant in his individual capacity, and he will be added as a defendant in

his official capacity for purposes of identifying the unknown defendants. Once their names are

discovered, Plaintiff must file a motion to substitute each newly identified defendant in place of

the generic designations in the case caption and throughout the Complaint.

Request for “Restraining Order”

Plaintiff’s request for a “restraining order” prohibiting all further contact with defendants

is DENIED without prejudice. A temporary restraining order (TRO) make take effect for up to

fourteen days. See FED. R. CIV. P. 65(b). Plaintiff describes no instances of misconduct, threats

of harm, or actual harm caused by the defendants in the past six months. Plaintiff may seek a TRO

or preliminary injunction by filing a separate motion pursuant to Rule 65(a) and/or (b) at any time

it becomes necessary during the pending action.

Disposition

The Complaint (Doc. 1) survives screening pursuant to 28 U.S.C. § 1915A against the

following defendants:

• COUNT 1 against JOHN BARWICK, NATHAN CHAPMAN, PERCY

MYERS, NURSE JAMES, LIEUTENANT J. DUDEK, SEGEANT

ENGSTROM, and C/O JOHN DOE 1-3 (once identified), in their individual

capacities.

• COUNT 2 against JOHN BARWICK, NATHAN CHAPMAN, PERCY

MYERS, NURSE JAMES, and KITCHEN SUPERVISORS JOHN DOE 4-6

(once identified), in their individual capacities.

• COUNT 3 against JOHN BARWICK, NATHAN CHAPMAN, PERCY

MYERS, NURSE JAMES, LIEUTENANT J. DUDEK, SERGEANT

ENGSTROM, C/O JOHN DOE 1-3 (once identified) and KITCHEN

SUPERVISOR JOHN DOE 4-6 (once identified), in their individual capacities.

The CURRENT WARDEN of PINCKNEYVILLE CORRECTIONAL CENTER

JOHN BARWICK (official capacity) is ADDED for purposes of identifying C/O JOHN DOE

1-3 and KITCHEN SUPERVISOR JOHN DOE 4-6 by name and for implementing any

injunctive relief ordered herein. WEXFORD HEALTH SOURCES, INC. is DISMISSED

without prejudice.

The Clerk shall prepare for the CURRENT WARDEN of PINCKNEYVILLE

CORRECTIONAL CENTER (JOHN BARWICK) (individual and official capacities) and

NATHAN CHAPMAN, PERCY MYERS, NURSE JAMES, LT. J. DUDECK, SERGEANT

ENGSTROM, C/O JOHN DOE 1-3 (once identified) and KITCHEN SUPERVISOR JOHN

DOE 4-6 (once identified) in their individual capacities: (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 each Defendant’s 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 that

Defendant, and the Court will require the 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 and 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 and SDIL-LR 8.2, Defendants need only respond to the issues

stated in this Merit Review Order.

Plaintiff is ADVISED that if judgment is rendered against him and the judgment includes

the payment of costs under 28 U.S.C. § 1915, he will be required to pay the full amount of the

costs, even though he was granted in forma pauperis status. See 28 U.S.C. § 1915(f)(2)(A).

Plaintiff is further ADVISED that he is under a continuing obligation to keep the Clerk of

Court and the opposing parties informed of any change in his address; 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 in 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 want of

prosecution. See FED. R. CIV. P. 41(b).

The Clerk of Court is DIRECTED to ENTER the Court’s standard HIPAA-Qualified

Protective Order and TERMINATE Wexford Health Sources, Inc. as a defendant in

CM/ECF.

IT IS SO ORDERED.

DATED: April 29, 2025 s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

Once identified, the Court will take the necessary steps to notify the Defendants of your

lawsuit and serve them with a copy of your Complaint. After service has been achieved,

Defendants will enter an appearance and file an Answer to your Complaint. It will likely take at

least 60 days from the date they are served with this lawsuit to receive the Defendants’ Answers,

but it is entirely possible that it will take 90 days or more. When Defendants have filed their

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 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 this time, unless

specifically directed to do so.