Dismukes v. Baker et al

Filing 119

OPINION: (1) Plaintiff's motion for an interlocutory appeal or a Rule 54(b) judgment is denied 111 . (2) This case is referred to Magistrate Judge Schanzle-Haskins for settlement discussions. (3) Defendants' motion for an extension is g ranted in part and denied in part 116 . Defendants' motion to extend their expert disclosure and report deadline for 15 days, to April 15, 2015, is granted. Plaintiff shall have until April 30, 2015, to depose Defendants' expert. All ot her discovery closes on April 15, 2015. The summary judgment deadline is vacated. (4) The final pretrial is rescheduled to Friday, May 8, 2015, at 1:30 p.m. Defense counsel shall appear in person. Plaintiff's counsel may appear in person or b y video. (5) The jury trial remains scheduled for June 2, 2015, at 9:00 a.m.(6) The Court will send out a revised, updated version of its proposed jury instructions. Alternate or additional instructions (no duplicates) are due May 1, 2015. (7) An agreed final pretrial order is due May 1, 2015.(8) Motions in limine are due May 1, 2015. (9) The clerk is directed to forward this order to Magistrate Judge Schanzle-Haskins. Entered by Judge Sue E. Myerscough on 3/13/2015. (ME, ilcd)

E-FILED

Friday, 13 March, 2015 04:44:26 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
COREY DISMUKES,

)
)
Plaintiff,
)
)
v.
)
)
)
DR. THOMAS BAKER,
)
WEXFORD HEALTH SOURCES, INC,)
And JAMES FENOGLIO,
)
)
Defendants.
)

No. 11-CV-3345

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff has filed a motion to certify an interlocutory appeal
regarding the Court’s dismissal of Plaintiff’s respondeat superior
claim against Wexford. (Count III, Amended Complaint, d/e 85.)
An interlocutory appeal is warranted if the dismissal “involves a
controlling question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the
litigation . . . .” 28 U.S.C. § 1292(b). “Interlocutory appeals are
frowned on in the federal judicial system” because “often the issue
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presented by such an appeal would have become academic by the
end of the litigation in the district court, . . . .” Sterk v. Redbox
Automated Retail, LLC, 672 F.3d 535, 536 (7th Cir. 2012).
Plaintiff is correct that Judges Hamilton and Posner indicated
in Shields v. IDOC, 746 F.3d 782, 789 (7th Cir. 2014) that they were
willing to revisit Seventh Circuit precedent that bars respondeat
superior liability against private companies being sued under 42
U.S.C. § 1983. Yet, Judges Hamilton and Posner also recognized
that current precedent is clear: “[r]espondeat superior liability does
not apply to private corporations under § 1983.” Id. at 789 (italics
in original). Further, they recognized that “[a]ll other circuits that
have addressed the issue have reached the same conclusion,
extending the Monell standard to private corporations.” Id. at 790.
Judge Tinder indicated in a concurrence that, though he might be
open to revisiting the respondeat superior issue, the Shields case
was not the appropriate case to do so. Id. at 800. The parties in
Shields were encouraged to seek rehearing en banc, but the petition
for rehearing was denied on May 16, 2014. Shields v. IDOC, 10CV-3746, 5/16/14 order (7th Cir. 2014)(Judges Wood and Hamilton

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voted to grant the rehearing). The Supreme Court denied certiorari
on January 12, 2015. Shields v. IDOC, 135 S.Ct. 1024 (2015).
About five months after the Shields opinion, Judges Ripple,
Williams, and St. Eve (sitting by designation) remarked in Hahn v.
Walsh, 762 F.3d 617, 640 (7th Cir. 2014) that, even if the res
judicata issue had not been waived, the panel would not overrule
Seventh Circuit precedent regarding § 1983 respondeat superior
liability, noting that current precedent “is compatible with the
holding of every circuit to have addressed the issue.” The Supreme
Court denied certiorari in Hahn. Hahn v. Walsh, 2015 WL 731906
(U.S. Feb. 23, 2015).
Shields suggests, at most, that some of the Seventh Circuit
Judges might be willing to overturn controlling precedent. That
possibility is not enough to show a “substantial ground for
difference of opinion” on a controlling issue of law. No difference of
opinion exists regarding whether Plaintiff can presently pursue a §
1983 respondeat superior claim against Wexford: Plaintiff cannot.
A difference of opinion may exist on whether this should be the law,
but that does not change what is the law. Interlocutory appeals on
settled precedent are not appropriate simply due to criticism of that
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precedent. Nor does the specter of a possible second trial warrant
an interlocutory appeal. Ahrenholz v. Bd of Trustees of Univ. of Ill.,
219 F.3d 674, 676 (7th Cir. 2000) (“‘The federal scheme does not
provide for an immediate appeal solely on the ground that such an
appeal may advance the proceedings in the district court.’”)(quoted
cite omitted).
Plaintiff alternatively asks that the Court enter judgment on
the respondeat superior claim under Federal Rule of Civil Procedure
54(b). Rule 54(b) allows the court to enter judgment on fewer than
all the claims or parties “only if the court expressly determines that
there is no just reason for delay.” A Rule 54(b) judgment is
appropriate on a claim only if the remaining claims are sufficiently
separate, meaning, at the least, that “‘separate recovery is possible
on each . . . . [M]ere variations of legal theory do not constitute
separate claims . . . . Nor are claims so closely related that they
would fall afoul of the rule against splitting claims if brought
separately . . . .’” Marseilles Hydro Power, LLC v. Mareilles Land
and Water Co., 518 F.3d 459, 464 (7th Cir. 2008)(quoted cited
omitted).

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The respondeat superior claim is not readily separable from
the other claims in this case. A successful § 1983 respondeat
superior claim against Wexford, even if it were legally viable,
depends entirely on the success of Plaintiff’s deliberate indifference
claim against Wexford’s employees, Drs. Fenoglio and Baker. If the
jury finds for Drs. Fenoglio and Baker, the respondeat superior
claim is academic. Additionally, the respondeat superior claim is
essentially just a different theory of liability against Wexford, in
addition to the unconstitutional policy claim that is already
proceeding. The Court, therefore, declines to enter a Rule 54(b)
final judgment on the respondeat superior claim.
On a separate matter, Defendants move to extend the
discovery deadline and their expert disclosure deadline. Plaintiff’s
response time has not yet passed, but the Court will rule on the
motion in the interest of moving the case along, subject to
objections filed by Plaintiff within the response time. Defendants
assert that they recently received medical records which indicate
that Plaintiff may have complained about a lipoma and headaches
as far back as 2004, before Plaintiff’s incarceration, rather than in
2008. Defendants are concerned that they will not have a complete
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picture of Plaintiff’s relevant medical history by their expert
discovery deadline of April 1, 2015.
Plaintiff’s pre-incarceration history of a lipoma and headaches
is arguably relevant as to damages or Plaintiff’s credibility, but less
relevant as to whether the treatment Plaintiff received in prison was
a substantial departure from accepted professional judgment.
Defendants already have all the medical records regarding Plaintiff’s
condition while he was in prison, which detail the size of the lipoma
and the Defendants’ objective findings. Defendants also have many
of Plaintiff’s medical records before and after Plaintiff’s
incarceration. This should be sufficient for Defendants’ expert to
form an opinion.
Defendants’ expert deadline and the discovery deadline will be
extended for a short period of 15 days, to April 15, 2015. By that
date, the parties will have had over six months of discovery since
the filing of Plaintiff’s Amended Complaint, which should be
sufficient. The summary judgment motion deadline will be vacated.
The Court sees no need for a summary judgment motion deadline
since this case has already survived summary judgment.
IT IS ORDERED:
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(1) Plaintiff’s motion for an interlocutory appeal or a Rule 54(b)
judgment is denied (111).
(2) This case is referred to Magistrate Judge SchanzleHaskins for settlement discussions.
(3) Defendants’ motion for an extension is granted in part and
denied in part (116). Defendants’ motion to extend their
expert disclosure and report deadline for 15 days, to April
15, 2015, is granted. Plaintiff shall have until April 30,
2015, to depose Defendants’ expert. All other discovery
closes on April 15, 2015. The summary judgment deadline
is vacated.
(4) The final pretrial is rescheduled to Friday, May 8, 2015, at
1:30 p.m. Defense counsel shall appear in person.
Plaintiff’s counsel may appear in person or by video.
(5) The jury trial remains scheduled for June 2, 2015, at 9:00
a.m.

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(6) The Court will send out a revised, updated version of its
proposed jury instructions. Alternate or additional
instructions (no duplicates) are due May 1, 2015.
(7) An agreed final pretrial order is due May 1, 2015.
(8) Motions in limine are due May 1, 2015.
(9) The clerk is directed to forward this order to Magistrate
Judge Schanzle-Haskins.
ENTER: 3/13/2015
FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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