Handy et al v. Wexford Health Sources Inc et al

Filing 38

OPINION: Motion to Dismiss 30 is DENIED and Motion to Dismiss 32 is GRANTED IN PART and DENIED IN PART. The claims against IDOC are DISMISSED with prejudice. Plaintiff has clarified that he is not bringing an official capacity claim against Def endant Reed. Therefore, the portion of the Motion to Dismiss seeking to dismiss such claims is denied as moot. Wexford shall file an answer on or before February 9, 2017. Defendant Reed filed an Answer on November 7, 2016 34 . SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 01/23/2017. (SKN, ilcd)

E-FILED

Monday, 23 January, 2017 01:50:01 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JAMES HANDY,

)
)
Plaintiff,
)
)
v.
)
)
WEXFORD HEALTH SOURCES,
)
INC., THOMAS M. LEHMAN,
)
individually and in his official
)
capacity as Corporate Medical
)
Director Utilization Management )
and Clinical Services, ILLINOIS
)
DEPARTMENT OF CORRECTIONS )
(“IDOC”), WARDEN REED,
)
Individually, Warden of
)
Jacksonville Correctional Center, )
WARDEN JEAN CAMPANELLA,
)
Individually, Warden of Vienna
)
Correctional Center, OFFICER
)
BURNS, and JOHN DOE, M.D.,
)
individually and as agents of
)
Wexford Health Sources, Inc.,
)
)
Defendants.
)

No. 16-CV-3181

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
In October 2016, Plaintiff James Handy filed a two-count
Second Amended Complaint pursuant to 42 U.S.C. § 1983 alleging
that the Defendants were deliberately indifferent to his serious

medical needs while he was incarcerated in the Illinois Department
of Corrections (IDOC). Defendant Wexford Health Sources, Inc.
(Wexford) has filed a Motion to Dismiss (d/e 30). Wexford asserts
that Plaintiff fails to state a claim against Wexford because he fails
to allege facts demonstrating that an official custom, policy, or
practice of Wexford caused the alleged constitutional deprivation.
Defendants IDOC and Warden Marvin Reed have also filed a
Motion to Dismiss (d/e 32). IDOC and Warden Reed argue that the
claims against IDOC and any claims against Warden Reed in his
official capacity are barred by the Eleventh Amendment.
Wexford’s Motion is DENIED. Taking the allegations in the
light most favorable to Plaintiff, Plaintiff has alleged a plausible
claim that Wexford’s widespread practice caused Plaintiff’s injury.
IDOC and Warden Reed’s Motion is GRANTED IN PART and
DENIED IN PART. IDOC, as a state agency, is not a “person”
under § 1983. Moreover, the Eleventh Amendment bars the claims
against IDOC. Plaintiff has clarified that he is not bringing a claim
against Warden Reed in his official capacity. Therefore, that
portion of the Motion to Dismiss is denied as moot.

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I. JURISDICTION
This Court has subject matter jurisdiction because Plaintiff’s
claims are based on federal law. See 28 U.S.C. ' 1331 (AThe
district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United
States@). Venue is proper because a substantial part of the events
or omissions giving rise to Plaintiff=s claims occurred in this
district. 28 U.S.C. ' 1391(b)(2).
II. LEGAL STANDARD
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th
Cir. 2007). To state a claim for relief, a plaintiff need only provide
a short and plain statement of the claim showing he is entitled to
relief and giving the defendants fair notice of the claims. Tamayo
v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
When considering a motion to dismiss under Rule 12(b)(6),
the Court construes the complaint in the light most favorable to
the plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in his favor. Id. However, the
complaint must set forth facts that plausibly demonstrate a claim
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for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007). Plausibility means alleging factual content that allows the
Court to reasonably infer that the Defendants are liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Merely reciting the elements of a cause of action or supporting
claims with conclusory statements is insufficient to state a cause
of action. Id.
III. FACTS ALLEGED IN THE COMPLAINT
The following facts come from Plaintiff’s Second Amended
Complaint and are accepted as true at the motion to dismiss stage.
Tamayo, 526 F.3d at 1081.
Wexford provides healthcare services to inmates housed in
IDOC. Second Am. Compl. ¶ 6. In December 2013, Plaintiff was
incarcerated in the Jacksonville Correctional Center. Id. ¶ 13.
Upon arrival, Plaintiff gave the IDOC employees and Wexford
doctors a detailed medical history, which included the fact that
Plaintiff had previously been diagnosed with and treated for
hepatitis C. Id. ¶14. In February 2015, Plaintiff was transferred to
the Vienna Correctional Center. Id. ¶¶ 5, 21. Plaintiff gave the
same medical information to the Vienna IDOC employees and
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Wexford doctors. Id. ¶ 21. According to Plaintiff, IDOC and
Wexford employees refused to treat Plaintiff’s hepatitis C. Id. ¶¶
15, 22.
Plaintiff informed Defendant Officer Burns, a Jacksonville
Correctional Center officer, that Plaintiff was not being treated for
hepatitis C and requested that Defendant Reed, the Warden of the
Jacksonville Correctional Center, intervene to ensure that Plaintiff
be properly treated. Second Am. Compl. ¶16. Plaintiff also
informed Defendant Jean Campanella, the Warden of Vienna
Correctional Center, of Plaintiff’s medical condition and the fact
that he was not being treated for hepatitis C and requested that
she intervene to ensure that Plaintiff be properly treated. Id. ¶ 23.
Plaintiff alleges that the named Defendants acted with
deliberate indifference and reckless disregard to Plaintiff’s serious
medical condition. Second Am. Compl. ¶¶ 17, 24. Specifically,
Defendants refused to provide timely examinations and treat
Plaintiff’s symptoms; refused to provide appropriate diagnostic aids
including referrals and consultations; refused to provide continued
monitoring of known painful, disabling, disfiguring, and life
threatening medical conditions; intentionally denied and delayed
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critically needed medical care, knowing that their obligation to
provide medical care was short-lived because Plaintiff had a
relatively short sentence; refused to ensure that appropriate care
and treatment was provided to Plaintiff while knowing that the
denial of such care and treatment would be potentially life
threatening to Plaintiff; refused to timely notify appropriate
physicians of Plaintiff’s condition; refused to conduct an
investigation of Plaintiff’s ongoing grievances to the Warden(s) that
he was being treated with reckless indifference; failed to provide
competent and professional medical treatment; and denied Plaintiff
access to a physician when there was a clear need. Id. ¶¶ 17, 24
(a) – (i). Plaintiff also alleges that:
Defendant, Thomas M. Lehman, and his agents,
assistants and employees acted pursuant to the policies,
regulations[,] or decisions officially adopted or
promulgated by those in the Illinois Department of
Corrections (“IDOC”) and Wexford Health Sources, Inc.,
whose acts may fairly be said to represent official policy
or were pursuant to governmental custom of the State of
Illinois.
Id. ¶ 8; see also id. ¶ 7 (alleging that Lehman is the Corporate
Medical Director of Utilization Management and Clinic Services of
Wexford).
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As a direct and proximate result of Defendants’ conduct,
Plaintiff was diagnosed with cirrhosis in June 2015. Id. ¶¶ 18, 25.
Plaintiff seeks compensatory damages, punitive damages, costs,
and reasonable attorney’s fees.
IV. ANALYSIS
A.

Plaintiff Alleges a Plausible Claim that Wexford’s
Widespread Custom or Practice Caused Plaintiff’s Injury
Wexford moves to dismiss the claims against Wexford,

asserting that Plaintiff’s conclusory allegations fail to state a
plausible claim upon which relief can be granted. Plaintiff argues
that he has alleged that his injury was caused by Defendant
Lehman, who was a person with final policymaking authority at
Wexford, and by “a widespread practice constituting ‘custom or
usage’ of Defendant Wexford.” Resp. at 4.
Private corporations acting under color of state law are
treated like local governments. Shields v. Ill. Dep’t of Corr., 746 F.
3d 782, 789 (7th Cir. 2014). A local government is responsible
under § 1983 “when execution of a government’s policy or custom
. . . inflicts the injury . . . .” Monell v. Dep’t of Social Servs. of
City of New York, 436 U.S. 658, 694 (1978).
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To survive a motion to dismiss, a plaintiff is not required to
plead with specificity the existence of a policy. See Eckert v. City
of Chi., No. 08 C 7397, 2009 WL 1409707, at *6 (N.D. Ill. 2009).
However, the allegations must be specific enough to place
defendants on notice of the type of policy alleged. Id.; see also Bell
Atlantic Corp., 550 U.S. at 555 (allegations must provide the
defendant with “fair notice” of the claim). A plaintiff may establish
an official policy or custom by showing: (1) an express policy that,
when enforced, causes a constitutional deprivation; (2) a
widespread practice that, although not authorized by written law
or express municipal policy, is so permanent and well settled as to
constitute a “custom or usage” with the force of law; or (3) an
allegation that the constitutional injury was caused by a person
with final policymaking authority. Palmer v. Marion Cnty., 327
F.3d 588, 594-95 (7th Cir. 2003) (citations omitted).
Although Plaintiff’s allegations are not very specific, he states
a claim against Wexford. Plaintiff alleges that from December 2013
to at least sometime after February 2015, and in two different
IDOC institutions, IDOC employees and Wexford doctors refused to
provide timely examinations, referrals, and monitoring and
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basically failed to treat Plaintiff’s hepatitis C. Taking the facts in
the light most favorable to Plaintiff, a reasonable inference can be
drawn that this was due to a widespread custom or practice
implemented by Wexford.
Plaintiff does not simply allege a one-time denial of treatment,
which would be insufficient to constitute a custom or practice.
See, e.g., Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303
(7th Cir. 2009) (noting that a “custom or practice” requires more
than a one time or even three time event and a policy must be at
issue rather than a random event). Moreover, while some courts
have required that a plaintiff show that others were subjected to
the alleged custom or practice, others have allowed Monell claims
to proceed based on a pattern of conduct against the plaintiff.
Compare Daniel v. Cook Cnty., 833 F.3d 728, 734 (7th Cir. 2016)
(noting that to prove an official policy, custom or practice, the
plaintiff must “show more than the deficiencies specific to his own
experience”) with Phelan v. Cook Cnty., 463 F.3d 773, 789-90 (7th
Cir. 2014) (“Generally speaking, we do not believe that a plaintiff
should be foreclosed from pursuing Section 1983 claims where she
can demonstrate that repeated actions directed at her truly evince
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the existence of a policy”) (overruled in part on other grounds by
Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016)
(overruled to the extent the case relied on the “convincing mosaic”
as a governing legal standard in employment discrimination
cases)). The Court finds the allegations here sufficient to state a
claim against Wexford. Therefore, Wexford’s Motion to Dismiss is
denied.
B.

Plaintiff’s Claims Against IDOC Are Dismissed Because, as
a State Agency, IDOC is Not a Person Under § 1983 and
the Claims are Barred by the Eleventh Amendment
Defendants IDOC and Warden Reed move to dismiss the

Second Amended Complaint on the ground that any claims against
IDOC and Warden Reed in his official capacity are barred by the
Eleventh Amendment.
In response, Plaintiff clarifies that his claim against Warden
Reed is solely in Reed’s individual capacity but argues that his
Second Amended Complaint sufficiently states a claim against
IDOC.1

A search of the Illinois Department of Corrections website
(https://www.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx) (last
visited January 23, 2017) indicates that Plaintiff was paroled on November 25,
2015. Therefore, injunctive relief is not available to Plaintiff.
1

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The Court need not address the Eleventh Amendment
because it is well-established that a State and its agencies are not
suable persons within the meaning of § 1983. See Thomas v. Ill.,
697 F.3d 612, 613 (7th Cir. 2012) (noting that “judges are to
address the statutory defense before the constitutional”); Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding that
“neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983”). In any event, the Court also finds that
the Eleventh Amendment bars Plaintiff’s claims against IDOC.
The Eleventh Amendment bars a suit against a State or state
agency in federal court unless the State has consented to be sued
or Congress has abrogated the State’s sovereign immunity from
suit. Alabama v. Pugh, 438 U.S. 781, 782 (1978) (suit against a
state and a state agency is barred by the Eleventh Amendment
unless the state consented to suit); Will, 491 U.S. at 2310 (the
Eleventh Amendment bars suits in federal court against a State
unless Congress overrode the immunity). Plaintiff has not
demonstrated, and the Court is unaware of, any provision by
which the State of Illinois has consented to suit in these
circumstances. See Ford v. Lane, 714 F. Supp. 310, 313 (N.D. Ill.
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1989) (finding that the claim against IDOC was barred by the
Eleventh Amendment, noting that neither Illinois nor IDOC has
consented to suits for damages). Moreover, Congress has not
abrogated the states’ sovereign immunity from suit in § 1983
cases. See Thomas, 697 F.3d at 613 (Congress did not abrogate
the states’ sovereign immunity under § 1983). Therefore, Plaintiff’s
claims against IDOC are barred by Eleventh Amendment and are
dismissed. Because Plaintiff has clarified that he is not bringing
an official capacity claim against Defendant Warden Reed, that
portion of the Motion to Dismiss is denied as moot.
V. CONCLUSION
For the reasons stated, Defendant Wexford Health Sources,
Inc.’s Motion to Dismiss (d/e 30) is DENIED and Defendants IDOC
and Warden Reed’s Motion to Dismiss (d/e 32) is GRANTED IN
PART and DENIED IN PART. The claims against IDOC are
DISMISSED with prejudice. Plaintiff has clarified that he is not
bringing an official capacity claim against Defendant Reed.
Therefore, the portion of the Motion to Dismiss seeking to dismiss
such claims is denied as moot. Wexford shall file an answer on or

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before February 9, 2017. Defendant Reed filed an Answer on
November 7, 2016 (d/e 34).
ENTER: January 23, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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