Alberts v. Greene

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

PERRY ALBERTS, )

Plaintiff, )

)

v. ) Case No. 3:24-cv-3282-SEM-EIL

)

BRITTANY GREENE, et al., )

Defendants. )

MERIT REVIEW ORDER

SUE E. MYERSCOUGH, United States District Judge:

Plaintiff pro se Perry Alberts has filed a Complaint (Doc. 1),

followed by an Amended Complaint (Doc. 10), under 42 U.S.C. §

1983 that is before the Court for screening, together with Motions

for Temporary Restraining Order (Docs. 11, 12) and various

discovery motions (Docs. 3, 4, 8, 9). The Court finds that the

Amended Complaint states an Eighth Amendment claim for

deliberate indifference to a serious medical need but that Plaintiff’s

motions must be denied.

I. COMPLAINT

A. Screening Standard

The Court must “screen” Plaintiff’s complaint and dismiss any

legally insufficient claim or the entire action if warranted. 28 U.S.C.

§ 1915A. A claim is legally insufficient if it “(1) is frivolous,

malicious, or fails to state a claim upon which relief may be

granted; or (2) seeks monetary relief from a defendant who is

immune from such relief.” Id. In reviewing the complaint, the Court

accepts the factual allegations as accurate, liberally construing

them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649

(7th Cir. 2013). However, conclusory statements and labels are

insufficient. Enough facts must be provided to “state a claim for

relief that is plausible on its face.” Alexander v. United States, 721

F.3d 418, 422 (7th Cir. 2013) (citation omitted).

B. Facts Alleged

Plaintiff’s Motion for Leave to File Amended Complaint (Doc.

10) is GRANTED, pursuant to Rule 15(a)(1). The Amended

Complaint (Doc. 10) is now the operative pleading in this case and

replaces the initial Complaint (Doc. 1) in its entirety.

At all times relevant to his Complaint, Plaintiff was an inmate

at Western Illinois Correctional Center (“Western”).

Plaintiff’s suit names as Defendants Warden Brittany Greene,

Doctors Matticks, Trusewych, Ek, and Gordon, Nurse Practitioner

Clarkson, Health Care Unit Administrator Ashcraft, and Wexford

Health Sources, Inc. (“Wexford”).

Beginning in November 2017, Plaintiff began suffering from a

burning rash that caused excruciating pain and discomfort. On May

8, 2018, Plaintiff was seen by Defendant Matticks, who performed a

punch biopsy of the rash on Plaintiff’s left leg/buttocks. Plaintiff

never received the results of the biopsy. Defendant Matticks told

Plaintiff that the skin that was biopsied would close and heal on its

own.

The opening instead grew and began to leak blood and

discharge pus. The area frequently became infected and caused

Plaintiff great pain, as the open wound was exposed to germs

whenever Plaintiff needed to sit on the toilet.

Plaintiff began to experience some relief when he was

prescribed prednisone by a non-party provider at Quincy Medical

Group in October 2018. Defendant Trusewych examined Plaintiff

that month and noted the biopsy area was healing with prednisone.

However, beginning in late November 2018, Plaintiff’s prescription

for prednisone ran out and Defendant Trusewych ordered a second

biopsy (which never occurred) without refilling his prescription.

Plaintiff submitted at least 25 sick call requests from

November 30, 2018, until March 18, 2019, when he was next seen

by Defendant Trusewych. Plaintiff reported that the pain from the

open biopsy wound was so severe it caused difficulty walking.

Trusewych again prescribed prednisone for Plaintiff at that time and

again ordered a biopsy that never occurred. The prednisone

continued to be helpful for Plaintiff in April.

However, by May 2019, Defendant Trusewych prescribed a

Kenolog ointment for six months. The Kenolog had no healing effect

on the biopsy wound. Plaintiff suffered excruciating pain and, at

times, complete numbness in his leg.

Plaintiff placed dozens of sick call requests, without being seen

by any health care providers for his leg or burning rash. He spoke

directly with Defendants Greene and Ashcraft when they walked

through the cell house, but they advised he should be patient while

health care focused on treating COVID-19.

On February 5, 2021, Plaintiff saw Defendant Trusewych and

reported excruciating pain, difficulty walking, a continuing burning

rash, and an unhealed biopsy wound. Trusewych prescribed no

medication at this time.

From February 5, 2021, to June 9, 2022, Plaintiff continued to

submit sick call requests regarding pain, discharging pus and

blood, and odor from his wound. Plaintiff saw Defendant Trusewych

again on June 9, 2022, but Trusewych prescribed Ivermectin for

scabies, which had no effect on the rash or open wound. Plaintiff

continued to submit sick call requests.

Plaintiff next saw Defendant Trusewych on August 26, 2022.

Trusewych documented a worsening post-biopsy lesion and rash.

Trusewych told Plaintiff that the only way to close the wound would

be to perform a skin graft, which Wexford would not pay for.

Trusewych prescribed prednisone.

On October 4, 2022, Plaintiff against saw Defendant

Trusewych, who documented a worsening rash and nonhealing

biopsy that was infected. Trusewych prescribed Keflex and

prednisone. From this visit until January 20, 2023, the biopsy

wound was better while Plaintiff was taking prednisone, but

symptoms of infection of the wound would return as soon as

Plaintiff’s prednisone prescription ran out. However, prednisone

causes side effects on kidney and liver functioning, and Plaintiff

was diagnosed with cysts on both kidneys in November 2023.

In February and May 2023, Plaintiff saw Defendant

Trusewych, who prescribed other drugs that had no effect on

Plaintiff’s rash or wound and ordered another biopsy that never

occurred.

In October and November 2023, Plaintiff saw Defendant

Clarkson while Defendant Trusewych was on medical leave. Plaintiff

explained the length of time that he had been suffering from the

rash and wound, as well as the source of the wound. Clarkson

prescribed sulfa methazine on the first occasion and no prescription

or treatment on the second visit.

Plaintiff was not seen by a doctor or nurse practitioner in from

December 2023 through February 2024, or even on March 12,

2024, when Plaintiff’s cellhouse sergeant called health care after

observing Plaintiff’s bleeding and infected wound. After the sergeant

called again on March 26, 2024, Plaintiff was prescribed Keflex and

prednisone by Defendant Clarkson. Plaintiff was seen in health care

for a wound check and dressing changes in April, May, and mid-

June 2024, after which Defendant Clarkson discontinued Plaintiff’s

wound dressings and cleanings.

On July 22, 2024, Plaintiff was seen by Defendant Ek, who

examined Plaintiff’s wound and said he could not or would not treat

it.

On July 24, 2024, Plaintiff was seen by Defendants Gordon

and Matticks. Defendant Matticks assured Plaintiff that he would

look into the records of the biopsy he performed in May 2018. There

is no record that Defendants met with Plaintiff in July 2024 or that

Defendant Matticks ever reviewed the records regarding Plaintiff’s

May 2018 biopsy.

Plaintiff had his wound checked, cleaned, and dressed by a

nurse in late July and early August 2024. He saw Defendant

Gordon on August 9 and September 20, 2024. Gordon referred

Plaintiff to an outside dermatologist. On both occasions, Defendant

Gordon noted continued drainage from Plaintiff’s wound, but

wound cleanings and dressing changes were discontinued shortly

after Plaintiff’s appointments, first on August 10 and then again on

September 27, 2024. Plaintiff is not allowed to have bandages or

other wound treatment in his cell to clean or change the dressing

himself.

On December 5, 2024, Plaintiff was seen by the same non-

party provider at Quincy Medical Group who had treated him six

years prior. This provider performed a new biopsy and informed

Plaintiff that he would be able to provide treatment that healed the

wound and stopped the burning rash.

C. Analysis

Plaintiff’s Amended Complaint states an Eighth Amendment

claim of deliberate indifference to a serious medical need against

each of the individual Defendants. See Estelle v. Gamble, 429 U.S.

97, 105-06 (1976) (The two elements to state an Eighth Amendment

deliberate indifference claim are that (1) plaintiff had an objectively

serious medical need, and (2) defendant was deliberately indifferent

to that need).

Plaintiff has adequately alleged each of the Defendant medical

providers regularly denied him prescription medications or any form

of pain management, despite being aware of severe pain and

difficulty walking, and allowed Plaintiff to suffer from a wound that

was infected on a recurring basis, for years, without any coherent

treatment plan.

As for Defendants Greene and Ashcraft, although they were

not directly responsible for providing Plaintiff’s medical care, “[e]ven

personnel who are not doctors are not permitted simply to ignore a

detainee’s plight, nor can they deliberately obstruct or delay a

patient from receiving necessary treatment.” Smego v. Mitchell, 723

F.3d 752, 757 (7th Cir. 2013) (internal citations omitted). Plaintiff

directly informed both Greene and Ashcraft that he had sent dozens

of sick call requests for treatment of an infected wound and yet

continued to go months without any treatment whatsoever. Plaintiff

adequately alleges that these Defendants simply ignored his

requests to be examined by health care providers.

Finally, with respect to Defendant Wexford, there is no

vicarious liability under § 1983 solely based upon an employer or

supervisory relationship. See Monell v. Department of Social Services

of City of New York, 436 U.S. 658, 692 (1978); Brown v. Randle, 847

F.3d 861, 865 (7th Cir. 2017). Rather, to proceed on a claim against

an institution rather than an individual defendant, Plaintiff must

allege “(1) that he…suffered a deprivation of a constitutionally

protected interest, and (2) that the deprivation was caused by an

official policy, custom or usage” of that defendant, acting under

color of state law. Powe v. City of Chicago, 664 F.2d 639, 643 (7th

Cir. 1981); Shields v. Illinois Department of Corrections, 746 F.3d

782, 789-90 (7th Cir. 2014).

As indicated above, Plaintiff has adequately alleged that his

Eighth Amendment rights have been violated. Further, Plaintiff has

alleged that this violation was, at least in part, a result of Wexford

policies not to pay for a skin graft, not to allow repeat biopsies

ordered by its providers, and to delay necessary care due to COVID-

19 and while Defendant Trusewych was on medical leave.

Therefore, Plaintiff may also proceed on a Monell claim against

Defendant Wexford.

II. PRELIMINARY INJUNCTIVE RELIEF

Plaintiff filed a Motion for Injunction and Temporary

Restraining Order (Doc. 11) on March 24, 2025, followed by a

Motion to Allow Injunction and Temporary Restraining Order (Doc.

12) on April 9, 2025, and a Motion (Doc. 13) objecting to any time

for Defendants to file a response to these motions.

A. Standard

A preliminary injunction is “an extraordinary and drastic

remedy, one that should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.” Mazurek v. Armstrong,

520 U.S. 968, 972 (1997); accord Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an

extraordinary remedy never awarded as of right”). To prevail, “the

moving party must demonstrate: (1) a likelihood of success on the

merits; (2) a lack of an adequate remedy at law; and (3) an irreparable

harm will result if the injunction is not granted.” Foodcomm

International v. Barry, 328 F.3d 300, 303 (7th Cir. 2003) (citations

omitted). If the moving party meets the first three requirements, then

the district court balances the relative harms that could be caused

to either party. Incredible Technologies, Inc. v. Virtual Technologies,

Inc., 400 F.3d 1007, 1011 (7th Cir. 2005).

The Prisoner Litigation Reform Act (“PLRA”) limits the scope of

the court’s authority to enter an injunction in the corrections context.

Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA,

preliminary injunctive relief “must be narrowly drawn, extend no

further than necessary to correct the harm the court finds requires

preliminary relief, and be the least intrusive means necessary to

correct that harm.” 18 U.S.C. § 3626(a)(2); see also Westefer, 682

F.3d at 683 (PLRA “enforces a point repeatedly made by the Supreme

Court in cases challenging prison conditions: prison officials have

broad administrative and discretionary authority over the

institutions they manage”) (internal quotation marks and citation

omitted).

B. Facts Alleged

Plaintiff’s Motions recite many of the facts alleged in the

Amended Complaint, summarizing persistent—and often

worsening—symptoms of a skin rash/wound for a period of

approximately seven years.

Plaintiff recounts that on December 5, 2024, the non-party

dermatologist at Quincy Medical performed a biopsy that tested

positive for eczema and could be treated with an injection every 6

months. Plaintiff alleges that Western has had these biopsy results

for at least 3 to 4 months but that none of Defendants have seen

Plaintiff to formulate a treatment plan or to provide pain

medication. A nurse told Plaintiff that he will need to be seen by a

doctor to receive pain medications but that the wait will be long.

Plaintiff alleges he continues to suffer from pain and lesions that

cause difficulty walking.

Plaintiff asks for an injunction that restrains Wexford and its

providers from treating Plaintiff’s eczema and an order that Quincy

Medical dermatologist(s) instead treat that condition. Plaintiff

further requests that Wexford providers follow proper wound care

protocol, including daily cleaning, bandaging, and antibiotics for

Plaintiff’s lesions, and prescribe continuing pain medication(s).

C. Analysis

The purpose of a temporary restraining order or preliminary

injunction is to preserve the status quo pending a final hearing on

the merits of the case. American Hospital Association v. Harris, 625

F.2d 1328, 1330 (7th Cir. 1980).

First, Plaintiff requests that a dermatologist at Quincy Medical

formulate and execute a treatment plan for his eczema. However,

neither Quincy Medical nor any of its providers are parties to this

lawsuit. This Court therefore has no authority to issue an

injunction mandating any treatment or other action by Quincy

Medical.

Second, if Plaintiff is seeking an ongoing referral to Quincy

Medical by Wexford or other Defendants, that would constitute an

affirmative act by Defendant(s) and therefore constitutes a

mandatory preliminary injunction. See Graham v. Medical Mutual of

Ohio, 130 F.3d 293, 295 (7th Cir. 1997). Mandatory injunctions are

“cautiously viewed and sparingly issued,” because they require the

court to command a defendant to take a particular action. Id. (citing

Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)); see also W.A.

Mack v. General Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958)

(mandatory injunctions very rarely issue, except on the clearest

equitable grounds).

Based upon the record before it, the Court finds that Plaintiff

has a good likelihood of success on the merits of his deliberate

indifference claim.

However, the likelihood of irreparable harm at this stage is

mixed. The record from Plaintiff’s December 5, 2024, evaluation and

biopsy with Quincy Medical indicated Plaintiff was in “no acute

distress” and that he was prescribed a topical ointment and an oral

anti-inflammatory antibiotic for his skin rash and lesions and was

advised of proper wound care. Follow-up treatment was noted to be

only “as needed,” pending the pathology report.

The pathology report, which was dated December 10, 2024,

confirmed a diagnosis of early/partially-treated psoriasis, chronic

eczema, and lichen planus. The report indicated negative tests for

fungal elements or bacteria. None of the records submitted by

Plaintiff include any treatment plan recommended by Quincy

Medical following the biopsy results.

The Court does not discount the pain or discomfort that

Plaintiff faces, nor the possible risk of infection, due to ongoing

rashes and skin lesions. However, based upon the most recent

medical records from December 2024, there is no indication that

Plaintiff was or is suffering from an active infection that currently

presents irreparable harm to his health.

Mindful that mandatory injunctions are very sparingly issued,

the Court denies Plaintiff’s request that the Court order Defendants

to provide a specific referral, treatment, or medication at this time.

The Court advises, however, that this denial is without prejudice to

Plaintiff filing a future request for temporary injunctive relief.

III. DISCOVERY MOTIONS

Finally, Plaintiff has filed motions seeking documentary

evidence in this case: a Motion for Photo of Wound (Doc. 3) and

Motion for Medical Records (Doc. 4), followed by Motions for Default

(Docs. 8, 9) relating to those earlier Motions.

Requests for evidence, such as photographs and medical

records, are typically made through service of written discovery

rather than by filing a motion with the Court. See Fed. R. Civ. P. 34.

Defendants have not yet been served, and this case is not yet in the

discovery phase. Following service, the Court will enter a scheduling

order that advises Plaintiff of discovery procedures and deadlines,

and the necessary requirements before Plaintiff files a motion

asking this Court to intervene to compel a party to produce certain

responses or documents.

Therefore, Plaintiff’s Motions (Docs. 3, 4, 8, 9) relating to

discovery are DENIED as premature.

IT IS THEREFORE ORDERED:

1) Plaintiff’s Motion for Leave to File Amended Complaint

[10] is GRANTED. According to the Court’s Merit Review of

Plaintiff’s Amended Complaint under 28 U.S.C. § 1915A,

Plaintiff has alleged enough facts to proceed with an

Eighth Amendment deliberate indifference claim against

Defendants Greene, Matticks, Ashcraft, Trusewych,

Clarkson, Ek, and Gordon, and a Monell claim against

Defendant Wexford. Additional claims shall not be

included in the case, except at the Court’s discretion on

motion by a party for good cause shown or under Federal

Rule of Civil Procedure 15.

2) Plaintiff’s Motions [11], [12], [13] requesting injunctive

relief are DENIED, without prejudice.

3) Plaintiff’s Motions [3], [4], [8], [9] requesting discovery are

DENIED as premature.

4) This case is now in the process of service. The Court

advises Plaintiff to wait until counsel has appeared for

Defendants before filing any motions, to give 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 evidence to the Court unless otherwise

directed by the Court.

5) The Court will attempt service on Defendants by mailing

waivers of service. Defendants have sixty days from

service to file their Answers. If a Defendant has not filed

an Answer or appeared through counsel within ninety days

of the entry of this Order, Plaintiff may file a motion

requesting the status of service. After Defendants have

been served, the Court will enter an order setting

discovery and dispositive motion deadlines.

6) Concerning a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that

Defendant worked while at that address shall submit to

the Clerk said Defendant’s current work address or, if not

known, said Defendant’s forwarding address. This

information shall be used only for effectuating service.

Documentation of forwarding addresses shall be retained

only by the Clerk and shall not be maintained in the

public docket nor disclosed by the Clerk.

7) Defendants shall file an Answer within sixty days of the

date the Clerk sends the waiver. A motion to dismiss is

not an answer. The Answer should include all defenses

appropriate under the Federal Rules. The Answer and

subsequent pleadings shall be to the issues and claims

stated in this Order. In general, an answer sets forth a

Defendant’s positions. The Court does not rule on the

merits of those positions unless and until a Defendant

files a motion. Therefore, no response to an Answer is

necessary or will be considered.

8) This District uses electronic filing, which means that,

after Defendants’ counsel have filed an appearance,

counsel will automatically receive electronic notice of any

motion or other paper filed by Plaintiff with the Clerk.

Therefore, Plaintiff does not need to mail copies of

motions and other documents that Plaintiff has filed with

the Clerk to Defendants’ counsel. However, this does not

apply to discovery requests and responses. Discovery

requests and responses are not filed with the Clerk.

Instead, Plaintiff must mail his discovery requests and

responses directly to Defendants’ counsel. Discovery

requests or responses sent to the Clerk will be returned

unfiled unless they are attached to and the subject of a

motion to compel. Discovery does not begin until

Defendants’ counsel has filed an appearance, and the

Court has entered a scheduling order, which will explain

the discovery process in more detail.

9) Defendants’ counsel is granted leave to depose Plaintiff.

Defendants’ counsel shall arrange the time for the

deposition.

10) Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.

Plaintiff’s failure to inform the Court of a change in

mailing address or phone number will result in the

dismissal of this lawsuit with prejudice.

11) If a Defendant fails to sign and return a waiver of service

to the Clerk within thirty days after the waiver is sent, the

Court will take appropriate steps to effect formal service

through the U.S. Marshals service on that Defendant and

will require that Defendant to pay the total costs of formal

service under Federal Rule of Civil Procedure 4(d)(2).

12) The Court directs the Clerk to enter the standard qualified

protective order under the Health Insurance Portability

and Accountability Act.

13) The Court directs the Clerk to attempt service on

Defendants under the standard procedures.

ENTERED April 30th, 2025.

s/ Sue E. Myerscough

____________________________________

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE