Byrd v. Wexford Health Sources Inc et al

Filing 9

MERIT REVIEW OPINION: Plaintiff's motion for the Court to appoint pro bono counsel is denied (d/e 3 ), with leave to renew on a more developed record. The clerk is directed to enter the standard order granting Plaintiff's in forma pauperi s petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (Rule 16 Deadline 5/19/2017.)(SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 3/20/2017. (GL, ilcd)

E-FILED

Monday, 20 March, 2017 09:28:47 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JUSTIN E. BYRD,
Plaintiff,
v.
WEXFORD HEALTH SOURCES,
INC.
Defendants.

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17-CV-3026

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Taylorville
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally
construing them in Plaintiff's favor and taking Plaintiff’s pro se
status into account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.”  28 
U.S.C. § 1915(g). 

Page 1 of 10 

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. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
During Plaintiff’s incarceration in Jacksonville Correctional
Center from January 2014 to April 2016, Plaintiff repeatedly sought
medical care for rectal bleeding and bloody stools which were
causing him nausea, dizziness, extreme fatigue, confusion, fever,
extreme discomfort, pain, and emotional distress. (Compl. p. 4.)
The prison doctors diagnosed Plaintiff with hemorrhoids and
prescribed suppositories and hemorrhoid lotion. The hemorrhoid
diagnosis was confirmed in May 2014 when Plaintiff had an upper
and lower endoscopy. However, Plaintiff continued to suffer from
rectal bleeding and the other symptoms throughout his entire time
in Jacksonville Correctional Center.
In April 2016, Plaintiff was transferred from Jacksonville to
Taylorville Correctional Center. The next month, a class instructor
asked Plaintiff if he was okay because Plaintiff looked as “white as a
sheet.” Plaintiff replied, “No, I feel like I am going to pass out.” He
was sent to the health care unit where the nurses diagnosed
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Plaintiff with dangerously low blood counts (a hemoglobin of 5.5
with a normal count being 14-15). Plaintiff was transferred to the
hospital where he received three blood transfusions and emergency
surgery. Plaintiff contends that Wexford Health Sources, Inc., the
medical staff at Jacksonville Correctional Center, and the Warden
and Assistant Warden at Jacksonville Correctional Center were
deliberately indifferent and negligent to Plaintiff’s medical condition.
These allegations state a plausible Eighth Amendment claim
against the medical staff at Jacksonville for deliberate indifference
to Plaintiff’s serious medical needs. Plaintiff also sues Wexford
Health Sources, Inc., alleging an unconstitutional policy, which is a
stretch on the current allegations. Plaintiff does not explain what
corporate policy or practice caused the lack of medical care.
However, dismissal of Wexford would be premature.
No plausible inference of deliberate indifference arises against
the wardens from these allegations. Wardens, like other prison
officials without medical training, are generally entitled to rely on
the professional expertise of the prison medical staff. Greeno v.
Daley, 414 F.3d 645, 656 (7th Cir. 2005)(“‘If a prisoner is under the
care of medical experts... a nonmedical prison official will generally
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be justified in believing that the prisoner is in capable
hands.’”)(quoted cite omitted). Plaintiff’s allegations do not suggest
that the wardens knew about Plaintiff’s medical problems or might
have known that the medical attention Plaintiff was receiving was
obviously deficient. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir.
2012)( nonmedical defendants may be liable if “‘they have a reason
to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner.’”)(quoted cite
omitted). Plaintiff does not allege that he informed any of the
wardens of the problem while Plaintiff was at Jacksonville, and the
one grievance attached to the complaint was not filed until August
2016, after Plaintiff had been transferred to Taylorville Correctional
Center.
As for Plaintiff’s malpractice claim, he must attach the affidavit
and report required by 735 ILCS 5/2-622(a)(affidavit of qualified
professional stating that the case has merit must be attached to a
complaint alleging malpractice). The malpractice claim will be
dismissed without prejudice to filing those documents.
IT IS THEREFORE ORDERED:

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1)

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 against Defendants Wexford Health Sources, Inc., Becky (last
name unknown)(Jacksonville Health Care Administrator), Eli
Goodman, Thomas Baker, Nurse M.W. Sweetin, Nurse K. Boone,
Nurse Hallock, and Nurse Pitchford. This case proceeds solely on
the claims identified in this paragraph at this point. 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.
2)

Warden Gerski and the unidentified Assistant Warden of

programs are dismissed, without prejudice.
3)

Plaintiff’s malpractice claim is dismissed, without

prejudice to refiling with the affidavit and report required by 735
ILCS 5/2-622(a).
4)

This case is now in the process of service. Plaintiff is

advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
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Defendants' 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.
5)

The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
6)

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.
7)

Defendants shall file an answer within 60 days of the

date the waiver is sent by the Clerk. A motion to dismiss is not an
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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. In general, an
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
8)

This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the

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Court has entered a scheduling order, which will explain the
discovery process in more detail.
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.
11)

If a Defendants 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).
12)

Within 10 days of receiving from Defendants' counsel an

authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.

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13)

Plaintiff's motion for the Court to appoint pro bono

counsel is denied (d/e 3), with leave to renew on a more
developed record. The Court does not have the authority to
require an attorney to accept pro bono appointment on a civil case
such as this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
The most the Court can do is ask for volunteer counsel. In
determining whether the Court should attempt to find an attorney
to voluntarily take the case, the question is “given the difficulty of
the case, does the plaintiff appear competent to litigate it himself?"
Pruitt, 503 F.3d at 654-55 (7th Cir. 2007). On this record, Plaintiff
appears competent to proceed pro se. His pleadings adequately
convey the factual basis for his claims, and he should have
personal knowledge of many of the relevant facts underlying his
claims. Plaintiff may renew his motion on a more developed factual
record, setting forth his educational level, any jobs he has had
inside or outside of prison, any classes he has taken in prison, and
his litigation experience in state and federal court. Plaintiff should
also attach a copy of his medical records if he is able to obtain
them.

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14)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
15)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: March 20, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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