Sutton v. Bird et al

Filing 11

WRITTEN Opinion entered by the Honorable George M. Marovich on 3/6/2013: The court construes the plaintiff's trust account statement 10 as a renewed motion for leave to proceed in forma pauperis. The motion is granted. The court authorizes an d orders the trust fund officers at the plaintiff's place of incarceration to deduct $10.98 from the plaintiff's account for payment to the Clerk of Court as an initial partial filing fee, and to continue making monthly deductions in a ccordance with this order. On the court's own motion, Wexford Healthcare, Inc., is dismissed as a defendant on preliminary review pursuant to 28 U.S.C Section 1915A. The clerk is directed to: (1) send a copy of this order to the trust fund offic er at the Stateville Correctional Center; (2) issue summonses for service on the defendants by the U.S. Marshal; and (3) send the plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order. The plaintiff's motion for a preliminary injunction 4 is denied as moot. [For further details see opinion.] Mailed notice. (np, )

Order Form (01/2005)

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

GEORGE M. MAROVICH

CASE NUMBER

12 C 10044

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

3/6/2013

Derrick Sutton (#B-94675) vs. Correctional Officer Bird, et al.

DOCKET ENTRY TEXT:

The court construes the plaintiff’s trust account statement [#10] as a renewed motion for leave to proceed in
forma pauperis. The motion is granted. The court authorizes and orders the trust fund officer at the plaintiff’s
place of incarceration to deduct $10.98 from the plaintiff’s account for payment to the Clerk of Court as an initial
partial filing fee, and to continue making monthly deductions in accordance with this order. On the court’s own
motion, Wexford Healthcare, Inc., is dismissed as a defendant on preliminary review pursuant to 28 U.S.C. §
1915A. The clerk is directed to: (1) send a copy of this order to the trust fund officer at the Stateville
Correctional Center; (2) issue summonses for service on the defendants by the U.S. Marshal; and (3) send the
plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this
order. The plaintiff’s motion for a preliminary injunction [#4] is denied as moot.
O [For further details see text below.]

Docketing to mail notices.

STATEMENT
The plaintiff, an Illinois state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C.
§ 1983. The plaintiff claims that the defendants, Wexford Health Sources, Inc., and an officer at the Stateville
Correctional Center, violated the plaintiff’s constitutional rights by acting with deliberate indifference to his
serious medical needs. More specifically, the plaintiff alleges that he has received inadequate care, treatment,
and accommodations for his various medical afflictions, which include diabetes, high blood pressure, and a need
for a lower bunk.
The plaintiff’s renewed motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C.
§ 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $10.98. The trust fund officer at the plaintiff’s
place of incarceration is authorized and ordered to collect the partial filing fee from the plaintiff’s trust fund
account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, the plaintiff’s trust
fund officer is directed to collect monthly payments from his trust fund account in an amount equal to 20% of
the preceding month’s income credited to the account. Monthly payments shall be forwarded to the Clerk of
(CONTINUED)
mjm

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STATEMENT (continued)
Court each time the amount in the account exceeds $10 until the full $350 filing fee is paid. All payments shall
be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier’s
Desk, 20th Floor, and shall clearly identify the plaintiff’s name and this case number. This payment obligation will
follow the plaintiff wherever he may be transferred.
Under 28 U.S.C. § 1915A, the court is required to conduct a prompt threshold review of the complaint.
Here, accepting the plaintiff’s allegations as true, the court finds that the plaintiff has articulated a colorable federal
cause of action against Officer Bird. Correctional officials and health care providers may not act with deliberate
indifference to an inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Fields v. Smith,
653 F.3d 550, 554 (7th Cir. 2011). The plaintiff may also have a tenable cause of action under the Americans with
Disabilities Act, U.S.C. § 12101, et seq. While a more fully developed record may belie the plaintiff’s allegations,
defendant Bird must respond to the complaint.
However, Wexford Health Sources, Inc. (sued as “Wexford Healthcare”), is summarily dismissed as a
defendant on preliminary review. In analyzing a section 1983 claim against a private corporation, the court uses
the same principles that would be applied in examining claims against a municipality. Brown v. Ghosh, No. 09
C 2542, 2010 WL 3893939, *8 (N.D. Ill. Sep. 28, 2010) (Feinerman, J.), citing Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 822 (7th Cir. 2009). An inmate bringing a claim against a corporate entity for a violation of
his constitutional rights must show that the corporation supports a “policy that sanctions the maintenance of prison
conditions that infringe upon the constitutional rights of the prisoners.” Brown, 2010 WL 3893939, at *8, quoting
Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004) (in turn quoting Estate of Novack
ex rel. v. County of Wood, 226 F.3d 525, 530 (7th Cir. 2000) (a corporate defendant violates an inmate’s rights “if
it maintains a policy that sanctions the maintenance of prison conditions that infringe upon the constitutional rights
of the prisoners”)). Because liability is not premised upon the theory of vicarious liability, the corporate policy
“must be the ‘direct cause’ or ‘moving force’ behind the constitutional violation.” Ibid. In the case at bar, the
plaintiff has alleged no facts whatsoever that suggest an inadequate treatment “policy” on the part of Wexford.
The clerk shall issue summons forthwith for service on defendant Bird. The United States Marshals Service
is appointed to serve the defendant. Any service forms necessary for the plaintiff to complete will be sent by the
Marshal as appropriate to serve the defendant with process. The U.S. Marshal is directed to make all reasonable
efforts to serve the defendant. If Officer Bird can no longer be found at the work address provided by the plaintiff,
the Illinois Department of Corrections shall furnish the Marshal with the defendant’s last-known address. The
information shall be used only for purposes of effectuating service [or for proof of service, should a dispute arise]
and any documentation of the address shall be retained only by the Marshal. Address information 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 the defendants in the manner prescribed by Fed. R. Civ. P. 4(d)(2) before attempting personal service.
(CONTINUED)

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STATEMENT (continued)
The plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of
the Prisoner Correspondent. The plaintiff is once again reminded that he is required to provide the court with
the original plus a complete judge’s copy, including any exhibits, of every document filed. In addition, the
plaintiff must send an exact copy of any court filing to the defendants [or to defense counsel, once an attorney has
entered an appearance on behalf of the defendants]. 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 the
plaintiff.
The plaintiff is advised that there is a two-year statute of limitations for civil rights actions in Illinois. See,
e.g., Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008); 735 ILCS § 5/13-202. The plaintiff should
therefore attempt to identify any health care providers and name them as defendants as soon as possible if he
wishes to pursue a claim that he received inadequate care and treatment from the medical staff. See Worthington
v. Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993); see also Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir. 1980).
Finally, the plaintiff’s motion for a preliminary injunction is denied as moot. The plaintiff is no longer
incarcerated at the Stateville Correctional Center. Accordingly, his request for preliminary injunction relief
concerning the conditions of his confinement at Stateville has been rendered moot. See, e.g., Higgason v. Farley,
83 F.3d 807, 811 (7th Cir. 1996).

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