William v. Baker et al
Filing
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MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 04/08/2014. The Clerk is directed to: 1) show plaintiff's motion for leave to proceed in forma pauperis 2 as granted; 2) show plaintiff's motion to amend 3 as granted; 3) sho w plaintiff's motion for appointment of counsel 4 as denied; 4) show plaintiff's motion for a temporary restraining order and preliminary injunction 5 as denied; 5) attempt service on defendant pursuant to the standard procedures; 6) 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; 7) dismiss Wexford Health Sources, Terry Williams, and Pam Schlueter as party defendants; 8) and show plaintiffs claims under the Americans with Disabilities Act and Rehabilitation Act as dismissed for failing to state a cause of action upon which relief can be granted. Lastly, it is ordered that if a defendant fails to sign and return a waiv er 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. marhsal'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).(DM, ilcd)
E-FILED
Tuesday, 08 April, 2014 03:21:11 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KIRBY WILLIAM,
Plaintiff,
v.
DR. BAKER, WEXFORD HEALTH
SOURCES, INC., TERRY WILLIAMS,
and PAM SCHLEUTER,
Defendants.
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) No.: 14-3051
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MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court for a merit review, pursuant to
28 U.S.C. § 1915A, of Plaintiff Kirby William’s claims and for
consideration of his pending motions.
I.
MERIT REVIEW UNDER 28 U.S.C. § 1915(A)
Under 28 U.S.C. § 1915(e)(2) and § 1915A, the Court is
required to carefully screen a complaint filed by a plaintiff who
seeks to proceed in forma pauperis. The Court must dismiss a
complaint, or a portion thereof, if the plaintiff has raised claims that
are legally “frivolous or malicious,” that fails to state a claim upon
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which relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. Id.
The test for determining if an action is frivolous or without
merit is whether the plaintiff can make a rational argument on the
law or facts in support of the claim. Neitzke v. Williams, 490 U.S.
319, 325 (1989). A complaint fails to state a claim for relief if the
complaint does not allege “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009).
In reviewing the complaint, the Court accepts the factual
allegations as true and liberally construes them in plaintiff’s favor.
Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Conclusory
statements and labels are insufficient. Fed. R. Civ. P. 8; Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)
(holding that, in order to determine if a complaint states a plausible
claim, the court must take non-conclusory, non-speculative facts as
true, draw all reasonable inferences in the pleader’s favor, and
isolate and ignore statements that simply rehash claim elements or
offer only legal labels and conclusions). Instead, sufficient facts
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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)(internal quotation omitted).
II.
ANALYSIS
William is an inmate within the Illinois Department of
Corrections (“IDOC”). William, at all relevant times, was housed at
the Western Illinois Correctional Center. According to William,
Defendants Dr. Baker, Terry Williams, and Pam Schlueter are IDOC
employees, and Defendant Wexford Health Sources maintains a
contract with IDOC to provide medical services to inmates within
the IDOC.
William claims that he received a gunshot wound to his head
in 1994. This gunshot wound left him blind in his left eye, left him
without hearing in his left ear, and caused him to suffer Grand Mal
seizures. William alleges that, when he arrived at the Western
Illinois Correctional Center on February 6, 2012, he met with Dr.
Baker, and the two of them reviewed William’s medical history,
including discussing the fact that William suffered from severe
headaches.
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William contends that on November 16, 2012, he began
experiencing drainage from his left ear. William was then placed
under observation and began receiving treatment. William further
contends that Dr. Baker performed surgery on him that Dr. Baker
was not capable of performing.
William has filed the instant suit pursuant to 42 U.S.C. §
1983. “To prevail in this section 1983 action, [William] must
establish (1) that he had a constitutionally protected right, (2) that
he was deprived of that right, (3) that [the defendant] intentionally
deprived him of that right and (4) that [the defendant] acted under
color of state law.” Forrest v. Prine, 620 F.3d 739, 743 (7th Cir.
2010).
William asserts that Defendants violated his rights in two
ways. First, William alleges that Defendants violated his rights
protected by the Americans with Disabilities Act and the
Rehabilitation Act. Second, William alleges that Defendants were
deliberately indifferent to his serious medical needs. William also
includes a state law medical malpractice claim in his Complaint.
William’s Complaint fails to state a cause of action under the
Americans with Disabilities Act or the Rehabilitation Act. The relief,
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if any, available to William under either act is coextensive. Jaros v.
Illinois Dep’t of Corrections, 684 F.3d 667, 671 (7th Cir. 2012).
Therefore, the Court may focus on William’s claim under the
Rehabilitation Act. Id; Calero-Cerezo v. United States Dep’t of
Justice, 355 F.3d 6, 11 n. 1 (1st Cir. 2004)(holding that the
dismissal of the plaintiff’s ADA claim had no effect on the scope of
his remedy because the Rehabilitation Act claim remained).
“To state a claim under the Rehabilitation Act, [Williams] need
only allege that (1) he is a qualified person (2) with a disability and
(3) the Department of Corrections denied him access to a program
or activity because of his disability.” Jaros, 684 F.3d at 672; 29
U.S.C. § 705(2)(B). William has not alleged that anyone denied him
access to a program or activity because of his disability. William
has alleged instead that Defendants denied him access to
competent health care or medical treatment, but that is not the
same as denying access to a program or activity. E.g., Resel v. Fox,
2001 WL 1654524, * 4 (7th Cir. Dec. 20, 2001)(“[A] prison official
does not violate the ADA when failing to attend to the medical needs
of . . . disabled prisoners.”); Perrey v. Donahue, 2007 WL 4277621, *
4 (N.D. Ind. Dec. 3, 2007)(“The Rehabilitation Act was not intended
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to require prison officials to provide medical treatment to prisoners
with a serious medical needs.”). Accordingly, William’s Complaint
fails to state a cause of action upon which relief can be granted
under the ADA or Rehabilitation Act.
The Court will allow William’s Complaint to proceed against
Dr. Baker for being deliberately indifferent to his serious medical
needs. The deliberate indifference standard requires an inmate to
clear a high threshold in order to maintain a claim for cruel and
unusual punishment under the Eighth Amendment. Dunigan ex rel.
Nyman v. Winnebago County, 165 F.3d 587, 590 (7th Cir. 1999).
“In order to prevail on a deliberate indifference claim, a
plaintiff must show (1) that his condition was ‘objectively,
sufficiently serious’ and (2) that the ‘prison officials acted with a
sufficiently culpable state of mind.” Lee v. Young, 533 F.3d 505, 509
(7th Cir. 2008)(quoting Greeno v. Daley, 414 F.3d 645, 652 (7th Cir.
2005)); Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008)
(same). “A medical condition is serious if it ‘has been diagnosed by
a physician as mandating treatment or one that is so obvious that
even a lay person would perceive the need for a doctor’s attention.’”
Lee, 533 F.3d at 509 (quoting Greeno, 414 F.3d at 653). “With
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respect to the culpable state of mind, negligence or even gross
negligence is not enough; the conduct must be reckless in the
criminal sense.” Id.; Farmer v. Brennan, 511 U.S. 825, 836-37
(1994)(“We hold . . . that a prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be
drawn that a substantial risk of harm exists, and he must also
draw the inference.”).
According to William, Dr. Baker did not properly treat
William’s medical needs. Perhaps more importantly, Dr. Baker
performed surgery upon William that Dr. Baker was allegedly not
competent to perform. The Court finds that William’s allegations
are sufficient to state a cause of action for deliberate indifference
and to state a cause of action for medical malpractice.
The Court will not allow William’s Complaint to proceed
against the other named Defendants, however, because he has
failed to allege that they have any personal liability to William for
any alleged violation of his Constitutional rights. “[I]ndividual
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liability under § 1983 requires ‘personal involvement in the alleged
constitutional deprivation.’” Minix v. Canarecci, 597 F.3d 824, 833
(7th Cir. 2010) (quoting Palmer v. Marion County, 327 F.3d 588, 594
(7th Cir. 2003)). Indeed, the United States Court of Appeals for the
Seventh Circuit has explained that the doctrine of respondeat
superior (a doctrine whereby a supervisor may be held liable for an
employee’s actions) has no application to § 1983 actions. Gayton v.
McCoy, 593 F.3d 610, 622 (7th Cir. 2010).
Instead, in order for a supervisor to be held liable under §
1983 for the actions of his subordinates, the supervisor must
“approve[] of the conduct and the basis for it.” Chavez v. Illinois
State Police, 251 F.3d 612, 651 (7th Cir. 2001); Gentry v. Duckworth,
65 F.3d 555, 561 (7th Cir. 1995)(“An official satisfies the personal
responsibility requirement of section 1983 . . . if the conduct
causing the constitutional deprivation occurs at [his] direction or
with [his] knowledge and consent.”)(internal quotation omitted).
“[S]upervisors must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what they
might see. They must in other words act either knowingly or with
deliberate, reckless indifference.” Backes v. Village of Peoria Heights,
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Illinois, 662 F.3d 866, 870 (7th Cir. 2011) (quoting Chavez, 251 F.3d
at 651)). “In short, some causal connection or affirmative link
between the action complained about and the official sued is
necessary for § 1983 recovery.” Gentry, 65 F.3d at 561.
William has failed to allege any actions or inactions on behalf
of Wexford Health, Williams, or Schlueter. Instead, William simply
names them as Defendants and lumps them together with Dr.
Baker. The only claim made by William that states a cause of
action upon which relief can be granted is one for deliberate
indifference, and these other Defendants cannot be held liable for
such a claim based upon William’s allegations.
III.
PENDING MOTIONS
William has filed several motions along with his Complaint.
The first is a motion for leave to proceed in forma pauperis. The
Court grants that motion.
The second is a motion to amend his Complaint to include a
claim for medical malpractice. The Court will grant that motion and
will allow William to maintain a medical malpractice cause of action
against Dr. Baker.
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The third motion is one for appointment of counsel. The Court
will deny that motion. The Court cannot consider the merits of the
motion until William shows that he has made reasonable efforts to
find counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th
Cir. 2007). Typically, a plaintiff makes this showing by writing to
several different law firms and attaching the responses to the
motion for appointment of counsel. William may renew his motion
for counsel, but if he chooses to do so, he should attach the
responses that he receives from the lawyers that he contacts to
represent him. In addition, William should set forth his educational
level, work experience inside and outside of the facility, his litigation
experience (if any), and any other facts relevant to whether he is
competent to proceed without an attorney.
The fourth motion is one seeking a temporary restraining
order and preliminary injunction. The Court denies that motion.
The standards for entering a temporary restraining order are
identical to those for entering a preliminary injunction. Anthony v.
Village of South Holland, 2013 WL 5967505, * 2 (N.D. Ill. Nov. 8,
2013). “To obtain a preliminary injunction, the moving party must
show that its case has ‘some likelihood of success on the merits’
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and that it has ‘no adequate remedy at law and will suffer
irreparable harm if a preliminary injunction is denied.’” Stuller, Inc.
v. Steak N Shake Enter., Inc., 695 F.3d 676, 678 (7th Cir. 2012)
(quoting Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011).
If the moving party meets these threshold requirements, the
district court must consider the irreparable harm that the
nonmoving party will suffer if preliminary relief is granted,
balancing such harm against the irreparable harm the moving party
will suffer if relief is denied. Id. The district court must also
consider the public’s interest in an injunction. Id. In this balancing
of harms, the district court must weigh these factors against one
another “in a sliding scale analysis.” Christian Legal Soc’y v. Walker,
453 F.3d 853, 859 (7th Cir. 2006). The sliding scale approach is not
mathematical in nature; rather, “it is more properly characterized
as subjective and intuitive, one which permits district courts to
weigh the competing considerations and mold appropriate relief.”
Abbot Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992)).
The Court finds that William is not entitled to a temporary
restraining order or a preliminary injunction because he has failed
to demonstrate a likelihood of success on the merits and because
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he has failed to demonstrate irreparable harm if preliminary relief is
not granted. The primary relief that William seeks is to be
transferred to another facility to receive treatment from doctors and
nurses at a different facility.
However, the Eighth Amendment guarantees a prisoner
treatment of his serious medical needs, not a doctor of his own
choosing. Estelle v. Gamble, 429 U.S. 97, 104-106 (1976); United
States v. Rovetuso, 768 F.2d 809, 825 (7th Cir. 1985). “A prisoner
has the right to medical care, however, he does not have the right to
determine the type and scope of the medical care he personally
desires.” Carter v. Ameji, 2011 WL 3924159, * 8 (C.D. Ill. Sept. 7,
2011)(citing Coppinger v. Townsend, 398 F.3d 392, 394 (10th Cir.
1968)).
“The Eighth Amendment does not require that prisoners
receive unqualified access to healthcare. Rather, inmates are
entitled only to adequate medical care.” Leyva v. Acevedo, 2011 WL
1231349, * 10 (C.D. Ill. Mar. 28, 2011)(internal quotations omitted).
“Further, a difference of opinion between a physician and the
patient does not give rise to a constitutional right, nor does it state
a cause of action under § 1983.” Carter, 2011 WL 3924159 at * 8.
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“A prisoner’s dissatisfaction with a doctor’s prescribed course of
treatment does not give rise to a constitutional claim unless the
medical treatment is so blatantly inappropriate as to evidence
intentional mistreatment likely to seriously aggravate the prisoner’s
condition.” Snipes v. Detella, 95 F.3d 586, 592 (7th Cir. 1996).
A preliminary injunction is “an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997). Given the high threshold that
William must cross in order to prevail on his deliberate indifference
claim, and given the tenor of his allegations in his Complaint, brief,
and affidavit, the Court finds that William has failed to carry his
burden of showing entitlement to a preliminary injunction. Rust
Envt. & Infrastructure, Inc. v. Teunissen, 131 F.3d 1210, 1219 (7th
Cir. 1997)(holding that a party seeking a preliminary injunction
must satisfy each element of the five-part test).
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IT IS, THEREFORE, ORDERED that:
1.
Plaintiff’s motion to proceed in forma pauperis [2] is
GRANTED.
The Clerk of the Court is directed to determine the
amount of the initial partial filing fee, if any, that is due as well as
the amount of any future payments to be made by Plaintiff.
2.
Plaintiff’s motion to amend his Complaint to include a
medical malpractice cause of action [3] is GRANTED.
3.
Plaintiff’s motion for appointment of counsel [4] is
DENIED.
4.
Plaintiff’s motion for a temporary restraining order and
preliminary injunction [5] is DENIED.
5.
Pursuant to the Court’s merit review of the Complaint
under 28 U.S.C. § 1915A, the Court finds that Plaintiff’s Complaint
states a claim against Defendant Dr. Baker for deliberate
indifference to a serious medical need and for malpractice under
Illinois state law. Any additional claim(s) shall not be included in
the case except at the Court’s discretion on a motion by a party for
good cause shown or pursuant to Federal Rule of Civil Procedure
15.
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6.
The Court also finds that Plaintiff’s Complaint fails to
state a cause of action against Defendants Wexford Health Sources,
Terry Williams, and Pam Schlueter, and they are DISMISSED.
Plaintiff’s claims under the Americans with Disabilities Act and the
Rehabilitation Act are also DISMISSED.
7.
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendant before
filing any motions in order to give Defendant notice and an
opportunity to respond to those motions. Motions filed before
Defendant’s 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.
8.
The Court will attempt service on Defendant by mailing
them a waiver of service. Defendant has 60 days from service to file
an Answer. If Defendant has not filed an Answer or appeared
through counsel within 90 days of the entry of this order, Plaintiff
may file a motion requesting the status of service. After Defendant
has been served, the Court will enter an order setting discovery and
dispositive motion deadlines.
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9.
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.
10.
Defendant 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 Order. In general, an answer
sets forth Defendant’s positions. The Court does not rule on the
merits of those positions unless and until a motion is filed by
Defendant. Therefore, no response to the answer is necessary or
will be considered.
11.
Once counsel has appeared for 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
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documents electronically and send notices of electronic filing to
defense counsel. The notices of electronic filing shall constitute
service on Defendant pursuant to Local Rule 5.3. If electronic
service on Defendant is not available, Plaintiff will be notified and
instructed accordingly.
12.
Counsel for Defendant is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendant shall
arrange the time for the deposition.
13.
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: 1) SHOW PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS [2] AS GRANTED; 2) SHOW
PLAINTIFF’S MOTION TO AMEND [3] AS GRANTED; 3) SHOW
PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [4] AS
DENIED; 4) SHOW PLAINTIFF’S MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION [5] AS
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DENIED; 5) ATTEMPT SERVICE ON DEFENDANT PURSUANT TO
THE STANDARD PROCEDURES; 6) 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; 7) DISMISS WEXFORD
HEALTH SOURCES, TERRY WILLIAMS, AND PAM SCHLUETER
AS PARTY DEFENDANTS; 8) AND SHOW PLAINTIFF’S CLAIMS
UNDER THE AMERICANS WITH DISABILITIES ACT AND
REHABILITATION ACT AS DISMISSED FOR FAILING TO STATE
A CAUSE OF ACTION UPON WHICH RELIEF CAN BE GRANTED.
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. MARHSAL’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).
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ENTER: April 8, 2014
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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