Soto v. Conn et al

Filing 8

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 1/5/2017. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that the Plaintiff states a constitutional claim for deliberate indifference to his serious medical needs. Defendant Conn is dismissed, without prejudice, for failure to state a claim against him. Dr. Steve Meeks is added as a Defendant. This case is now in the process of service. Rule 16 Deadline 3/6/2017.(MAS, ilcd)

E-FILED

Thursday, 05 January, 2017 09:48:34 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
OSCAR SOTO,
Plaintiff,
v.
DANIEL CONN,
ANDREW TILDEN,
P.A. OJELADE,
P.A. CARUSCO,
LOUIS SHICKER,
WEXFORD HEALTH
SOURCES, INC.,
Defendants.

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16-CV-1383

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Pontiac
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally

1

A prisoner who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).

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construing them in Plaintiff's favor and taking Plaintiff’s pro se
status into account. 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. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
On November 3, 2014, Plaintiff injured his shoulder while
playing basketball in Pontiac Correctional Center. Physician
Assistants Ojelade and Carusco, believing Plaintiff’s shoulder to be
dislocated, tried to manipulate Plaintiff’s shoulder back in place for
45 minutes, causing Plaintiff excruciating pain and injuring Plaintiff
further. Plaintiff was then sent out for an x-ray and diagnosed with
an acromioclavicular joint separation (AC joint separation). He was
prescribed pain killers and given a sling, but the sling was
confiscated five days later during a shakedown. After repeated
requests for treatment, Plaintiff was examined in the Spring of 2016
by an orthopedist who confirmed that Plaintiff had a AC joint
separation (grade three). The orthopedist prescribed physical
therapy and a follow-up in three months. Plaintiff still has not
received physical therapy or a follow-up appointment.
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These allegations state a constitutional claim for deliberate
indifference to Plaintiff’s serious medical need for adequate
treatment for his AC joint separation. However, the allegations do
not state a claim against Defendant Daniel Conn, the alleged Chief
Executive Officer of Wexford Health Sources, Inc. Defendant Conn
is not liable for the constitutional violations of his subordinates
solely because he was in charge, and there is no plausible inference
that he was involved in the denial of care to Plaintiff. Matthews v.
City of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012)(“To show
personal involvement, the supervisor must ‘know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for fear of
what they might see.’”)(quoted cite omitted). Wexford Health
Sources, Inc., will remain in as a Defendant for purposes of
injunctive relief.
Plaintiff has named as a Defendant Dr. Louis Shicker, but,
upon information and belief, Dr. Shicker is no longer the Medical
Director for the Illinois Department of Corrections. Dr. Shicker will
remain in the case for now, and the Court will add Dr. Steve Meeks
as a Defendant, who is currently listed on the IDOC’s website as the
Chief of Health Services. www.illinois.gov/idoc/programs.
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IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states a constitutional
claim for deliberate indifference to his serious medical needs.

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)

Defendant Conn is dismissed, without prejudice, for

failure to state a claim against him.
3)

Dr. Steve Meeks is added as a Defendant.

4)

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.
5)

The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from
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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.
6)

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.
7)

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
on the merits of those positions unless and until a motion is filed by
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Defendants. Therefore, no response to the answer is necessary or
will be considered.
8)

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.
9)

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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10)

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.
11)

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).
12)

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.
13)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.

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14)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
15)

The clerk is directed to terminate Defendant Conn.

16)

The clerk is directed to add Dr. Steven Meeks as a

Defendant.
ENTERED:

January 5, 2017

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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