Hawkins v. Dupree et al

Filing 11

MERIT REVIEW ORDER entered by Judge Michael M. Mihm on 11/19/2020. IT IS THEREFORE ORDERED: 1. This case shall proceed solely on the deliberate indifference claims against Defendant Dupree, Nurse Tina, Nurse "Dana" or "Donna" an d the Jane Doe Nurse. Wexford is DISMISSED though Plaintiff will have 30 days in which to replead his claims against Wexford, should he wish. The pleading is to be captioned Amended Complaint and is to include all of Plaintiff's claims witho ut reference to a prior pleading. All other claims will not be included in the case, except in the Court's discretion upon motion by a party for good cause shown, or by leave of court pursuant to Federal Rule of Civil Procedure 15. Danville is DISMISSED with prejudice. SEE FULL WRITTEN ORDER.(SAG, ilcd) (Main Document 11 replaced on 11/19/2020) (SAG, ilcd).

2:20-cv-02193-MMM # 11

Page 1 of 6

E-FILED

Thursday, 19 November, 2020 04:23:17 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
RYAN HAWKINS

)
)
)
)
)
)
)
)

Plaintiff,
v.
NURSE PRACTITIONER DUPREE, et al.,
Defendants.

No.: 20-cv-2193-MMM

MERIT REVIEW ORDER
Plaintiff, proceeding pro se and in forma pauperis, pursues a § 1983 action for deliberate
indifference to his serious medical needs at the Danville Correctional Center (“Danville”). The
case is before the Court for a merit review 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, 649-51 (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 and internal quotation marks omitted). While the pleading standard does not require
“detailed factual allegations”, it requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff alleges that he has been suffering from upper back pain since November 2019.
On January 27, 2020, Plaintiff’ was seen by Defendant Nurse Practitioner Dupree. Defendant
Dupree prescribed a “strong pain pill” and muscle relaxers and ordered an x-ray. When Plaintiff
was seen by Defendant for the x-ray two days later, Plaintiff informed him that he had not yet
received the medication which had been ordered. It appears that Defendant took no action as,

1

2:20-cv-02193-MMM # 11

Page 2 of 6

when Plaintiff was seen by another practitioner two weeks later, he had still not received the
medication.
On an unidentified date, Plaintiff spoke with a Jane Doe Nurse, complaining of the delay.
The Nurse responded that things were likely slow due to the holidays. Plaintiff claims, however,
that Jane Doe Nurse never documented in the record his complaints or the fact that he had not
received his medication. In March and April 2020, Plaintiff spoke with Nurse Tina, complaining
of extreme pain, apparently still not having received his medication. Defendant Tina indicated
she would follow up, but she, too, took no action. On May 29, 2020, Plaintiff saw another nurse
named “Dana” or “Donna.” This individual indicated that she would look into the failure to
provide the medication, but still, the medication was not forthcoming.
Plaintiff assert that he continues in pain with restricted movement, alleging that that he
has essentially received no treatment at all and, though his problems persist, no diagnosis.
Plaintiff names N.P. Dupree and the three nurses. He also names Wexford Health Sources, Inc.,
and Danville. Plaintiff requests compensatory and punitive damages as well as injunctive relief,
that his problem be diagnosed and surgery be provided, if needed.
ANALYSIS
To state a claim for deliberate indifference to a serious medical need, Plaintiff must
plead sufficient facts to establish that that he (1) suffered from an objectively serious medical
condition; and (2) that the defendant was deliberately indifferent to a risk of serious harm
from that condition. See Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012); Estelle v.
Gamble, 429 U.S. 97, (1976); Farmer v. Brennan, 511 U.S. 835, 837 (1994). Here, Plaintiff
states a colorable claim against Defendants Dupree, Tina and Dana (or Donna) as well as the
Jane Doe Nurse as he sufficiently pleads that they were deliberately indifferent to his

2

2:20-cv-02193-MMM # 11

Page 3 of 6

complaints of pain and complaints that the medication which had been ordered from him was
never dispensed. See Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016), as amended
(Aug. 25, 2016) (“the Eighth Amendment ‘safeguards the prisoner against a lack of medical
care that ‘may result in pain and suffering which no one suggests would serve any
penological purpose.’”)
Plaintiff also alleges that Wexford had an unconstitutional policy under which a patient
was required to be seen three times by nursing staff before being referred to a physician.
Wexford may be liable for a constitutional injury under Monell v. Dep’t of Social Servs. Of City
of New York, 436 U.S. 658, 691-92 (1978), but only if it had a policy or practice which resulted
in injury to plaintiff. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (to
adequately plead Monell liability, allegations “must allow [the court] to draw the reasonable
inference that the [defendant] established a policy or practice” which caused the injury.) Here,
Plaintiff alleges that he experienced pain and restricted movement because Defendants did not
provide the pain pills and muscle relaxants which had been prescribed for him. As a result, he
was allegedly injured by Defendants’ failures to act rather than their having acted pursuant to a
Wexford policy or practice. Wexford is DISMISSED without prejudice.
Plaintiff also names Danville, which is not amenable to suit under §1983. Danville is an
agency of the State of Illinois and enjoys the State’s Eleventh Amendment sovereign immunity
against federal court claims for money damages. Sittig v. Illinois Dept. of Corr., 617 F. Supp.
1043, 1044 (N.D. Ill. 1985); Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.2001) (Eleventh
Amendment bars federal court suit for money damages against state prison and Department of
Corrections). Furthermore, the statutory scheme of § 1983 provides relief to one injured by a
“person” operating under color of law. A state or state agency is not a “person” amenable to suit.

3

2:20-cv-02193-MMM # 11

Page 4 of 6

Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012). See Wright v. Porter County, 2013 WL
11761909, *2 (N.D. Ind. Mar. 19, 2013)(dismissing IDOC and the East Moline Correctional
Center as not persons amendable to suit under § 1983). Danville is DISMISSED with prejudice.
IT IS THEREFORE ORDERED:
1.

This case shall proceed solely on the deliberate indifference claims against

Defendant Dupree, Nurse Tina, Nurse “Dana” or “Donna” and the Jane Doe Nurse. Wexford is
DISMISSED though Plaintiff will have 30 days in which to replead his claims against Wexford,
should he wish. The pleading is to be captioned Amended Complaint and is to include all of
Plaintiff’s claims without reference to a prior pleading. All other claims will not be included in
the case, except in the Court's discretion upon motion by a party for good cause shown, or by
leave of court pursuant to Federal Rule of Civil Procedure 15. Danville is DISMISSED with
prejudice.
2.

Plaintiff files [10], a letter in which he requests the recruitment of pro bono

counse. Plaintiff’s prior request had been denied for his failure to document a good faith effort to
secure counsel on his own. See Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).
Notwithstanding, Plaintiff files the letter without documenting any such effort. [10] is DENIED.
In the event that Plaintiff renews his motion for appointment of counsel, he is to provide copies
of the letters sent to, and received from, prospective counsel. Plaintiff is also advised that if he
requests relief of this Court, he is to file it as a motion, not as a letter.
3.

The Clerk is directed to send to each Defendant pursuant to this District's internal

procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3)
a copy of the Complaint; and 4) a copy of this Order.

4

2:20-cv-02193-MMM # 11

4.

Page 5 of 6

If a Defendant 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 on that
Defendant and will require that Defendant pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2). If a Defendant no longer works at the address provided
by Plaintiff, the entity for which Defendant worked at the time identified in the Complaint shall
provide to the Clerk Defendant's current work address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained 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 the prescribed by Local Rule. A Motion to

Dismiss is not an answer. The answer it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the issues and claims identified in
this Order.
6.

Plaintiff shall serve upon any Defendant who has been served, but who is not

represented by counsel, a copy of every filing submitted by Plaintiff for consideration by the
Court and shall also file a certificate of service stating the date on which the copy was mailed.
Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk
or that fails to include a required certificate of service will be stricken by the Court.
7.

Once counsel has appeared for a Defendant, Plaintiff need not send copies of

filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintiff's
document electronically and send notice of electronic filing to defense counsel. The notice of
electronic filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic
service on Defendants is not available, Plaintiff will be notified and instructed accordingly.

5

2:20-cv-02193-MMM # 11

8.

Page 6 of 6

Counsel for Defendants is hereby granted leave to depose Plaintiff at Plaintiff's

place of confinement. Counsel for Defendants shall arrange the time for the depositions.
9.

Plaintiff shall immediately notice the Court of any change in mailing address or

phone number. The Clerk is directed to set an internal court deadline 60 days from the entry of
this Order for the Court to check on the status of service and enter scheduling deadlines.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD
PROCEDURES;
2) SET AN INTERNAL COURT DEADLINE 60 DAYS FROM THE ENTRY OF
THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND ENTER
SCHEDULING DEADLINES, AND,
3)

ENTER THE STANDARD QUALIFIED PROTECTIVE ORDER PURSUANT TO

THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT.
LASTLY, IT IS ORDERED THAT IF A DEFENDANT 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).

11/19/2020
ENTERED: ______________
_____s/Michael M.Mihm______
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE

6