Talley v. Wexford Medical Sources et al

Filing 7

OPINION entered by Judge Sue E. Myerscough on 4/19/2013. The merit review scheduled for 4/22/2013 is CANCELLED. This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on 7/1/2013 at 1:30 p.m., or as soon as the Court can reac h the case, before U. S. District Judge Sue E Myerscough by telephone conference. The conference will be cancelled if service has been accomplished and no pending issues need discussion. Accordingly, no writ shall issue for Plaintiff's presence unless directed by the Court. (MAS, ilcd)

E-FILED

Friday, 19 April, 2013 11:23:22 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

DURWYN TALLEY,

)
)
Plaintiff,
)
)
v.
)
)
WEXFORD MEDICAL SOURCES,)
DR. BAKER, DR. FENOGLIO,
)
AND NURSE PRACTITIONER
)
HARDY,
)
)
Defendants.
)

13-CV-3069

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and incarcerated in Danville
Correctional Center, seeks leave to proceed in forma pauperis on an
alleged failure to effectively treat his medical condition during his
incarceration in Western and Lawrence Correctional Centers. He
also alleges retaliation for filing grievances. The case is before the
Court for a merit review pursuant to 28 U.S.C. § 1915A.

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LEGAL STANDARD
The Court is required by § 1915A to review a Complaint filed
by a prisoner against a governmental entity or officer and, through
such process, to identify cognizable claims, dismissing any claim
that is “frivolous, malicious, or fails to state a claim upon which
relief may be granted.” A hearing is held if necessary to assist the
Court in this review, but, in this case, the Court concludes that no
hearing is necessary. The Complaint and its attachments are clear
enough on their own for this Court to perform its merit review of
Plaintiff’s Complaint.
The review standard under § 1915A is the same as the notice
pleading standard under Federal Rule of Civil Procedure 12(b)(6).
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state
a claim, the allegations must set forth a “short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Factual allegations must give enough detail to give
“‘fair notice of what the . . . claim is and the grounds upon which it
rests.’” EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776
(7th Cir. 2007)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)(add’l citation omitted)). The factual “allegations must
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plausibly suggest that the plaintiff has a right to relief, raising that
possibility above a ‘speculative level.’” Id. (quoting Bell Atlantic, 550
U.S. at 555). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged . . .
. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Bell Atlantic, 550 U.S.
at 555-56). However, pro se pleadings are liberally construed when
applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th
Cir. 2009).
ALLEGATIONS
In February 2011, Plaintiff tested positive for H. pylori
infection while incarcerated in Lawrence Correctional Center.
Defendants Dr. Fenoglio and Nurse Hardy treated Plaintiff at
Lawrence Correctional Center. At some point Plaintiff was
transferred to Western Correctional Center. In August 6, 2012, in
Western Illinois Correctional Center, Plaintiff was again tested for
H. pylori infection and again tested positive. Defendant Dr. Baker
treated Plaintiff at Western.
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Plaintiff alleges that Dr. Baker, Dr. Fenoglio, and Nurse Hardy
conspired to provide Plaintiff inappropriate treatment by agreeing
together that only one antibiotic should be prescribed, even though
two antibiotics are necessary to successfully treat an H. pylori
infection. Also, Plaintiff alleges that, in retaliation for his
grievances, Dr. Fenoglio and Nurse Hardy sent false lab samples for
testing, in order to create false evidence that Plaintiff's H. pylori
infection had been cured. However, Plaintiff then alleges that Dr.
Fenoglio and Nurse Hardy altered Plaintiff's lab tests to falsely show
that Plaintiff did have a bacterial infection, in order to force Plaintiff
to take unnecessary antibiotics, which worsened Plaintiff's
condition. Dr. Baker allegedly retaliated against Plaintiff by waiting
one month to inform Plaintiff of his test results.
Further, Plaintiff alleges that Defendants did not adequately
treat his severe reflux, heartburn, stomach pain, and sinusitis. He
contends that he has been prescribed numerous antibiotics, acidblockers, and antacids for three years, none of which has helped
him. He believes he should have been taken to an outside hospital
for gastrointestinal testing and treatment.

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ANALYSIS
Plaintiff arguably states an Eighth Amendment claim for
deliberate indifference to his serious medical needs. A plausible
inference of a serious medical need arises from Plaintiff's
description of his pain and symptoms. An inference of deliberate
indifference arguably arises from Plaintiff's allegations that
Defendants deliberately gave him ineffective or inappropriate
treatment over the course of several years. Nurse Hardy likely did
not have the authority to diagnose or prescribe treatment, but that
determination would be premature.
However, Wexford Health Sources cannot be held liable for its
employees' constitutional violations simply because Wexford is the
employer. Wexford is liable only if an unconstitutional policy or
practice of Wexford caused Plaintiff's harm. Woodward v.
Correctional Medical Services of Illinois, Inc., 368 F.3d 917 (7th Cir.
2004); Maniscalco v. Simon, --- F.3d ---, 2013 WL 1352521 *6 (7th
Cir. 2013)(no respondeat superior liability for private corporation).
No plausible inference arises from Plaintiff's allegations that his
constitutional deprivations were caused by Wexford Health Sources,
Inc.. Accordingly, Plaintiff's Eighth Amendment claim will proceed
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against Defendants Dr. Baker, Dr. Fenoglio, and Nurse Hardy, but
not Wexford.
Plaintiff's retaliation claim is difficult to understand, but he
seems to contend that Defendants' inappropriate treatment
decisions were motivated by a desire to retaliate against Plaintiff for
his grievances. He also seems contends that labs were falsified in
retaliation for Plaintiff's grievance. At this early stage, the Court
concludes that Plaintiff states a First Amendment claim that
Defendants retaliated against Plaintiff for filing grievances.
Plaintiff states that he is also pursuing supplemental state law
claims, but he does not identify his state claims. If Plaintiff intends
to pursue a state law malpractice claim, he must attach a
physician's report finding some merit to a malpractice claim, which
he has not done. 735 ILCS 5/2-622.

IT IS THEREFORE ORDERED:
1)

The merit review scheduled for April 22, 2013 is

cancelled. The clerk is directed to notify Plaintiff’s prison of the
cancellation.

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2)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth
Amendment claim for deliberate indifference to his serious medical
needs and a First Amendment claim for retaliation against him for
filing grievances. 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.
3)

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).
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
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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 the time

prescribed by Local Rule. 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.
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 shall be stricken by the Court.
7)

Once counsel has appeared for a Defendant, Plaintiff

need not send copies of his filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiff's document
electronically and send a notice of electronic filing to defense
counsel. The notice of electronic filing shall constitute service on
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Defendants pursuant to Local Rule 5.3. If electronic service on
Defendants is not available, Plaintiff will be notified and instructed
accordingly.
8)

This cause is set for further scheduling procedures under

Fed. R. Civ. P. 16 on July 1, 2013 at 1:30 p.m., or as soon as the
Court can reach the case, before U. S. District Judge Sue E.
Myerscough by telephone conference. The conference will be
cancelled if service has been accomplished and no pending issues
need discussion. Accordingly, no writ shall issue for Plaintiff’s
presence unless directed by the Court.
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.
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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO
send to each Defendant pursuant to this District's internal
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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)
this order.
ENTERED:

April 19, 2013

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

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