Mims v. Wexford Health Sources, Inc. et al

Filing 12

WRITTEN Opinion entered by the Honorable Virginia M. Kendall on 12/19/2011: Plaintiff may proceed with his amended complaint 7 against the following Defendants: Wexford Health Sources, Kevin Halloran, Dr. Partha Ghosh, Dr. Liping Zhang, Dr. R. Shute, Dr. Latoya Williams, and Dr. Aguinaldo. The clerk shall issue summonses for service of the amended complaint 7 on these Defendants. The other Defendants are dismissed. Mailed notice (tlm)

Order Form (01/2005)

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

Virginia M. Kendall

CASE NUMBER

11 C 6049

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

December 19, 2011

Bernard Mims (R-55072) vs. Wexford Health Sources, et al.

DOCKET ENTRY TEXT:

Plaintiff may proceed with his amended complaint [7] against the following Defendants: Wexford Health Sources,
Kevin Halloran, Dr. Partha Ghosh, Dr. Liping Zhang, Dr. R. Shute, Dr. Latoya Williams, and Dr. Aguinaldo. The
clerk shall issue summonses for service of the amended complaint [7] on these Defendants. The other Defendants
are dismissed.

O [For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff Bernard Mims (R-55072), an inmate at the Stateville Correctional Center, has paid the $350 filing
fee and has filed an amended complaint in accordance with the Court’s September 28, 2011, order. The Court’s
preliminary review of the amended complaint, see 28 U.S.C. § 1915A, reveals that Plaintiff may proceed against
some, but not all, of the 15 Defendants he lists. Plaintiff alleges that he hurt his hand in 2007. Dr. Agunaldo
examined the hand, informed Plaintiff that it appeared that a broken bone had healed improperly, but did nothing
more for Plaintiff’s complaints of pain. Plaintiff then saw Dr. Liping Zhang, who ordered an X-ray, which revealed
a fracture of the 4th and 5th metacarpal, which had healed improperly. Plaintiff was also seen by Physician
Assistant Latoya Williams, who commented that the hand looked deformed and who recommended an MRI, which
was never taken. Plaintiff states that Dr. Zhang, Dr. Ghosh, and Dr. Shute also recommended an MRI, but Wexford
would not approve it. Plaintiff alleges that all these doctors refused to prescribe medication for pain, despite
Plaintiff’s repeated complaints of pain.
With respect to Wexford Health Sources, the company hired to provide medical services to Illinois inmates
and which employs the Stateville’s doctors, Plaintiff states that he wrote letters to Wexford and its Chief Executive
Officer Kevin Halloran about the lack of treatment he was receiving, his need for an MRI, and his complaints of
pain; however, nothing was done. Plaintiff names additional Wexford officials as Defendants, but does not state
how they were involved.
With respect to Stateville Warden Marcus Hardy, Plaintiff states that Hardy could have intervened to ensure
that proper medical care was being given, but did not.
Plaintiff further alleges that he submitted several grievances that were never processed, thus preventing him
from exhausting his administrative remedies. Plaintiff names Sarah Johnson, Salvador Godinez, and an unknown
person referred to Jane Doe with respect to his claims that his grievances were not handled properly.
Lastly, Plaintiff asserts that Nurse Encarnacion examined him but ignored Plaintiff’s high blood pressure.
(CONTINUED)
isk

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STATEMENT
Having conducted a preliminary review of the amended complaint, see 28 U.S.C. § 1915A, Plaintiff may
proceed against Drs. Ghosh, Zhang, Aguinaldo, Shute, Williams, as well as Wexford and Kevin Halloran. Plaintiff
alleges that he complained of pain and the need for further treatment of his hand for a bone that healed improperly,
but that the doctors provided neither medication for the pain nor additional treatment. See Roe v. Elyea, 631 F.3d 843,
858 (7th Cir. 2011); Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008) (inadequate response to complaints of pain
can establish deliberate indifference to a serious medical need). Plaintiff may also proceed against Wexford and
Halloran, who allegedly not only ignored Plaintiff’s letters about not getting treatment but also refused
recommendations that Plaintiff receive an MRI. Hayes, 546 F.3d at 527 (a failure to investigate complaints of
insufficient medical care can rise to the level of deliberate indifference).
With respect to Warden Hardy, however, Plaintiff does not state that he informed Hardy of the need for better
medical care. Rather, Plaintiff’s assertions against Hardy indicate that Hardy is named only in his role as a
supervisory official, “the highest office . . . at Stateville” with “the final say on any & everything that goes on . . .in
the institution.” (Amended Compl. at 7.) A supervisory official cannot be held vicariously liable for the actions of
subordinate employees, but must have been personally involved in some way. See J.H. ex rel. Higgin v. Johnson,
346 F.3d 788, 793 (7th Cir. 2003). Although Plaintiff makes general assertions that inadequate health care is the
norm at Stateville, which arguably suggests an unconstitutional custom or policy, Plaintiff’s claims of inadequate care
center on Wexford’s indifference, as opposed to the prison’s. Plaintiff’s assertions against Hardy are thus insufficient
to state a claim against him.
With respect to Sarah Johnson, Salvador Godinez, and the unnamed grievance officer, Plaintiff asserts only
that these Defendants failed to process his grievances, which does not state a valid § 1983 claim. Greeno v. Daley,
414 F.3d 645, 656 (7th Cir. 2005), citing Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993); see also Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
Lastly, with respect to Nurse Encarnacion, Plaintiff names her for failing to diagnose or treat his high blood
pressure. This claim, however, is unrelated to his claim about his hand asserted against the other Defendants. Under
George v. Smtih, 507 F.3d 605, 607 (7th Cir. 2007), “[u]nrelated claims against different defendants belong in
different suits.” Plaintiff’s claim about his high blood pressure is unrelated, or so minimally related, to his other
claims that it should be brought in a different suit.
Accordingly, for the reasons stated above, Plaintiff may proceed with his claims against Drs. Ghosh, Zhang,
Aguinaldo, Shute, and Williams, as well as Wexford Health Sources and Kevin Halloran. The clerk shall issue

summonses for service of the amended complaint on these Defendants. The other Defendants are dismissed. The
Marshal is directed to execute service. Any service forms necessary for Plaintiff to complete will be sent to him
by the Marshal. Plaintiff’s failure to timely return completed forms to the Marshal may result in the dismissal of
unserved Defendants. The U.S. Marshal is directed to make all reasonable efforts to serve Defendants. With
respect to any former jail employee who can no longer be found at the work address provided by Plaintiff, officials
at the Stateville and Wexford officials shall furnish the Marshal with Defendant’s last known address. The
information shall be used only for purposes of effectuating service, or for proof of service if a dispute arise. Any
documentation of the address shall be retained only by the Marshal, and shall not be maintained in the court file,
nor disclosed by the Marshal. 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) before attempting personal service. If waivers are not received,
however, the Marshal must attempt personal service.
Plaintiff is instructed to file all future papers concerning this action with the clerk of court in care of the
Prisoner Correspondent. Plaintiff must provide the court with the original plus a complete judge’s copy, including
any exhibits, of every document filed. In addition, Plaintiff must send an exact copy of any court filing to the
Defendants, or to defense counsel, if an attorney has entered an appearance. Every document filed with the court
must include 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 that otherwise fails to comply with these instructions may be disregarded by the
court or returned to Plaintiff.

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