James v. Illinois Department of Corrections et al
Filing
9
MERIT REVIEW OPINION: The Court finds that Plaintiff alleges Defendants Illinois Department of Corrections, Wexford Health Sources, Inc., Warden Randy Pfister, Medical Director Andrew Tilden, Medical Director Louis Shicker, Health Care Administrator Terry Arroyo and Director Donald Stelworth violated his Eighth Amendment and Fourteenth Amendment rights based on a failure to provide treatment for gender identity disorder; and violated state law based on a breach of a settlement agreement. The Cl erk of the Court is directed to dismiss Defendant Boswell Pharmacy Services for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. The Clerk is further directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 11/25/2015. (MJ, ilcd)
E-FILED
Wednesday, 25 November, 2015 04:20:32 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
BRANDON JAMES,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS, et. al.,
Defendants.
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15-CV-1347
MERIT REVIEW OPINION
This cause is before the Court for merit review of the pro se
Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A. In reviewing
the Complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 649 (7th Cir. 2103). 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. U.S., 721
F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).
The pro se Plaintiff, a state inmate, claims his constitutional
rights were violated at Pontiac Correctional Center by the Illinois
Department of Corrections, Wexford Health Sources, Inc., Boswell
Pharmacy Services, Warden Randy Pfister, Medical Director Andrew
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Tilden, Medical Director Louis Shicker, Health Care Administsrator
Terry Arroyo and Director Donald Stelworth.
Plaintiff says on September 27, 2012, he filed a lawsuit in the
Central District of Illinois alleging Defendants had violated his
constitutional rights. The parties reached a settlement agreement
dismissing the case, but Plaintiff says the Defendants have failed to
abide by the terms.
The Plaintiff is referring to James v Tilden, Case No. 12-1376,
in which he alleged Defendants at both Pontiac and Stateville
Correctional Centers violated his Eighth Amendment rights when
they were deliberately indifferent to his serious medical condition,
Gender Identity Disorder; and, the Defendants violated his
Fourteenth Amendment equal protection rights when he was denied
medical care for this condition. See James v Tilden, Case No. 12,
1376; October 26, 2012 Merit Review Opinion; January 31, 2014
Amended Complaint. Specifically, Plaintiff claimed the Defendants
repeated refused to provide him any care from psychotherapy to
hormone replacement therapy.
Plaintiff initially filed his complaint pro se, but counsel later
agreed to represent him. On December 22, 2014, the parties filed a
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Stipulation of Dismissal pursuant to Federal Rule of Civil Procedure
41(a)(1) dismissing all claims with prejudice. James v Tilden, Case
No. 12-1376. [90]. The terms of the settlement agreement were not
before the court.
Plaintiff says the prescriptions for two of his needed
medications expired in July of 2015. He notified Defendants
Shicker, Arroyo and Dr. Tilden that they were in violation of the
settlement agreement, but no action was taken. Plaintiff says he
has still not received any hormone therapy and is suffering
“debilitating effects” as a result. (Comp., p. 6). Plaintiff also alleges
the Defendants have violated both his Eighth and Fourteenth
Amendment rights.
A claim based on violation of a settlement agreement is a state
law claim of breach of contract.
If indeed the case was dismissed under Rule 41(a)(1)(ii),
the plaintiff could not later complain to the court that the
dismissal had been premised on a settlement agreement
that the defendant had violated, and ask the court to order
the defendant to abide by the agreement. The court would
not have jurisdiction over the dispute merely by virtue of
having had jurisdiction over the case that was settled. The
violation of the settlement agreement would be a breach of
contract remediable under state but not federal law, and
therefore only in state court since the parties are not of
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diverse citizenship. McCall-Bey v. Franzen, 777 F.2d 1178,
1185 (7th Cir. 1985).
However, it is also possible the Plaintiff has an Eighth
Amendment and Fourteenth Amendment claim based on the failure
to provide medical care for his condition. See Konitzer v. Wall, 2013
WL 2297059, at *3 (W.D.Wis. May 24,2013)(dismissing GID
plaintiff’s breach of contract claim with leave to amend to clarify
involvement of Defendants, but allowing constitutional claims to
proceed). Since the terms of the settlement agreement were not
before the Federal Court, it is unclear whether these claims would
be precluded. In addition, if the Plaintiff were able to proceed with
these claims, the Court could exercise supplemental jurisdiction
over his state law claim concerning his settlement agreement.
Therefore, the court will not dismiss the claims, but will wait until
Defendants have been served and the record is clarified.
It is also unclear at this juncture whether all of the named
Defendants should remain in the case, but the court will wait for
clarification of the record and the settlement agreement.
Nonetheless, the Court notes Plaintiff says he is suing Boswell
Pharmacy Services because they have a contract with the Illinois
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Department of Corrections to provide medication. This is not
sufficient to state liability because a pharmacy could not provide
medication without a doctor’s prescription. Therefore, the court will
dismiss Defendant Boswell Pharmacy.
In the relief requested section of the complaint, the Plaintiff
asks for damages as well as a preliminary and permanent
injunction ordering Defendants to provide hormone therapy. The
court notes that since Plaintiff filed this lawsuit, he has transferred
from Pontiac Correctional Center to Pinckneyville Correctional
Center. It is unclear whether Pinckneyville was subject to the
same settlement agreement and whether this court will have
jurisdiction over Plaintiff’s claims. Therefore, the issue of an
injunction is more properly addressed once Defendants are in this
case.
Plaintiff is encouraged to contact the attorney who represented
him in negotiating his settlement agreement in James v Tilden, Case
No. 12-1376, for representation and guidance in this case.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the Complaint under 28
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U.S.C. § 1915A, the Court finds that Plaintiff alleges Defendants
Illinois Department of Corrections, Wexford Health Sources, Inc.,
Warden Randy Pfister, Medical Director Andrew Tilden, Medical
Director Louis Shicker, Health Care Administrator Terry Arroyo and
Director Donald Stelworth violated his Eighth Amendment and
Fourteenth Amendment rights based on a failure to provide
treatment for gender identity disorder; and violated state law based
on a breach of a settlement agreement. This case proceeds solely on
the claims identified in this paragraph. Any 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 pursuant to Federal
Rule of Civil Procedure 15.
2) This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order 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 any evidence to the
Court at this time, unless otherwise directed by the Court.
3) The Court will attempt service on Defendants by mailing
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each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 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.
4)
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide 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.
5)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. 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 Opinion. In general, an
answer sets forth Defendants' positions. The Court does not rule
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on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
6)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. 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 Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
7)
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
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8)
Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
9)
If a Defendants fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
10)
Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
11) The Clerk of the Court is directed to dismiss
Defendant Boswell Pharmacy Services for failure to state a
claim upon which relief can be granted pursuant to 28 U.S.C. §
1915A.
12)
The Clerk is directed to attempt service on
Defendants pursuant to the standard procedures.
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13)
The Clerk is further directed to enter the standard
qualified protective order pursuant to the Health Insurance
Portability and Accountability Act.
ENTERED: November 25, 2015
FOR THE COURT:
Sue E. Myerscough
SUE E. MYERSCOUGH
U.S. DISTRICT JUDGE
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