Wilder v. Wexford Health Sources, Inc. et al

Filing 9

WRITTEN Opinion entered by the Honorable Gary Feinerman on 11/28/2011: Plaintiff Roosevelt Wilder, Jr., prepaid the $350 filing fee 6 and filed his complaint 8 . The following defendants are dismissed: Addus Health Care, Mark Heaney, Lorie Co lclasure, Dr. Elyea, Dr. Joseph Smith, Dr. Kurian, and Barbara Miller. Wilder may proceed with his complaint against the other defendants, for whom the Clerk is requested issue summonses for service through the U.S. Marshals Service. Wilder's motion for the appointment of counsel 7 is denied without prejudice. Mailed notice (tlm)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Gary Feinerman

CASE NUMBER

11 C 4109

CASE TITLE

Sitting Judge if Other
than Assigned Judge

DATE

11-28-2011

Roosevelt Wilder, Jr. (N-64357) v. Wexford Health Sources, et al.

DOCKET ENTRY TEXT:

Plaintiff Roosevelt Wilder, Jr., prepaid the $350 filing fee [6] and filed his complaint [8]. The following
defendants are dismissed: Addus Health Care, Mark Heaney, Lorie Colclasure, Dr. Elyea, Dr. Joseph Smith, Dr.
Kurian, and Barbara Miller. Wilder may proceed with his complaint against the other defendants, for whom the
Clerk is requested issue summonses for service through the U.S. Marshals Service. Wilder’s motion for the
appointment of counsel [7] is denied without prejudice.
O

Docketing to mail notices.

[For further details see text below.]

STATEMENT
Plaintiff Roosevelt Wilder, Jr., an inmate at the Stateville Correctional Center, filed this 42 U.S.C. § 1983
action against 20 defendants, claiming deliberate indifference to his hernia condition. The complaint alleges as
follows. In 1996, Wilder was diagnosed with a hernia. In 2000, he aggravated it climbing to his upper bunk. For
the following ten years, he complained about and requested surgery for his condition. Surgery was performed in
December 2010. Wilder received inadequate medical care following surgery. Acknowledging that many of his
claims involve events that occurred more than two years before he brought this suit, Wilder contends that the
continuing violation doctrine applies to his case. See Heard v. Sheahan, 253 F.3d 316, 320-21 (7th Cir. 2001).
Defendants can be divided into four groups: (1) the Statevile defendants are Dr. Partha Ghosh, Dr. Liping
Zhang, Physician Assistant Williams, Nurse Tiffany Utke, Medical Technician Joe Shehey, Health Care Unit
Administrator Royce Brown-Reed, Warden Marcus Hardy, and Assistant Wardens Mark Hosey and Kenneth
Osborne; (2) the Wexford defendants are Wexford Health Sources, its Chief Executive Officer Kevin Halloren, and
its Regional Director Allen Karraker; (3) the Addus defendants are Addus Health Care (the health care provider
before Wexford), its Chief Operating Officer Mark Heaney, its Regional Manager Lorie Colclasure, two Statevile
doctors (Dr. Joseph Smith and Dr. Kurian) who were employed by Addus and who are no longer at Stateville, and
prior Stateville Health Care Administrator Barbara Miller, who was also employed by Addus; and (4) Illinois
Department of Corrections (“IDOC”) Medical Director Dr. Schicker, and prior IDOC Medical Director Dr. Elyea.
Of the 20 defendants, there are several against whom Wilder’s claims are clearly untimely, even under a
continuing violation theory. The limitations period for a § 1983 deliberate indifference claim in Illinois is two years.
See Klebanowski v. Sheahan, 540 F.3d 633, 639 (7th Cir. 2008). Under the continuing violation doctrine, a
deliberate indifference claim against each defendant arises when the defendant commits the tort—here the refusal
to provide adequate medical treatment—and “commences anew every day that treatment is withheld.” Jervis v.
Mitcheff, 258 Fed. Appx. 3, 6 (7th Cir. 2007) (citing Heard, 253 F.3d at 318). The refusal to provide treatment
continues, however, only “as long as the defendants had the power to do something about [Wilder’s] condition.”
Heard, 253 F.3d at 318.
(CONTINUED)
isk

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STATEMENT (continued)
In this case, the Addus defendants were no longer associated with Stateville or Wilder for more than two years
before he brought this suit. Addus provided medical services for inmates at Stateville in the early 2000s prior to
Wexford taking over that role in the mid-2000s. See Hall-Moten v. Smith, No. 05 C 5510, 2009 WL 1033361, *2
(N.D. Ill. April 17, 2009); Flournoy v. Ghosh, No. 07 C 5297, 2010 WL 1710807, *1 (N.D. Ill. April 7, 2010). Dr.
Kurian worked at Stateville from 1987 through 2001. See Williams v. Funk, No. 03 C 1402, 2006 WL 771271, *2
(C.D. Ill. May 27, 2006). Barbara Miller was the Health Care Unit Administrator at Stateville from 1994 to January
2003. See English v. Smith, No. 04 C 5534, 2008 WL 4287628, *2 (N.D. Ill. Sept. 15, 2008). Dr. Joseph Smith
ceased being the medical director at Stateville in May 2003. Ibid. Also, Dr. Elyea retired as the IDOC Director of
Medical Services on May 1, 2007. See Heard v. Wexford Health Sources, No. 09 CV 00449, 2011 WL 4479309, *2
(S.D. Ill. Sept. 26, 2011). These individuals, as well as Addus, Addus Officer Mark Heaney, and Addus Manager
Lorie Colclasure, thus “no longer ‘had the power to do something’ as required by the Seventh Circuit to maintain
a continuing violation.” Ibid. (quoting Heard, 253 F.3d at 318). Accordingly, Addus, Mark Heaney, Lorie
Colclasure, Dr. Elyea, Dr. Smith, Dr. Kurian, and Barbara Miller are dismissed as defendants.
A preliminary review of the complaint, see 28 U.S.C. § 1915A, reveals that Wilder may proceed with his
claims against the other defendants. The Clerk shall issue summonses for service of the complaint on Defendants
Ghosh, Zhang, Williams, Utke, Shehey, Brown-Reed, Hardy, Hosey, Osborne, Wexford Health Sources, Halloren,
Karraker, and Schicker.
The United States Marshals Service is appointed to serve the defendants. Wilder must assist the Marshal by
providing information that will allow the Marshal to effectuate service. The Marshal shall send Wilder any service
forms that he must complete. Wilder’s failure to return forms to the Marshal will result in the dismissal of those
defendants about whom service information is not provided. The Marshal is requested to make all reasonable efforts
to serve the defendants. With respect to any former employee who is no longer at the work address provided by
Wilder, the court directs Stateville, Wexford, and IDOC to furnish the Marshal with the defendant’s last-known
address. The information shall be used only for purposes of effectuating service or to show proof of service, and any
documentation of the address shall be retained only by the Marshal. Address information shall not be kept in the court
file. The Marshal is authorized to mail a request for waiver of service to Defendants in the manner prescribed by Fed.
R. Civ. P. 4(d)(2). If unable to obtain waivers, the Marshal shall attempt to serve the defendants personally.
Wilder is instructed to file all future papers concerning this action with the Clerk of Court in care of the
Prisoner Correspondent. In addition, Wilder must send an exact copy of any filing to Defendants or, for any
Defendant represented by counsel, to his or her attorney. Wilder must include on the original filing a certificate of
service stating to whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the judge
or otherwise fails to comply with these instructions may be disregarded by the court or returned to Wilder.
Wilder’s motion for the appointment of counsel is denied without prejudice, as such appointment is not
necessary at this early stage of this case. The case at present is not overly complex, and Wilder’s complaint
demonstrates that he is competent to represent himself at this time. See Romanelli v. Suliene, 615 F.3d 847, 851 -52
(7th Cir. 2010); Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). His motion is thus denied without prejudice
to reinstatement later in the case if the case becomes too complex for Wilder to handle himself.

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