Gonzalez v. Nygren et al

Filing 126

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 9/26/2017: For the following reasons, the court grants the motion to dismiss filed by McHenry County and Keith Nygren 90 , grants the motion to dismiss filed by Crawford Memorial Hospital 98 , grants in part and denies in part the motion to dismiss filed by Wexford Health Services, Inc., Dr. Arthur Davida, and Dr. Roderick L. Matticks 101 , and denies the motion to transfer venue filed by Crawford Memorial Hospital 108 . McHenry County, Keith Nygren, Crawford Memorial Hospital, and Wexford Health Services, Inc. are dismissed as defendants. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 9/26/2017. Electronic notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Victor M. Gonzalez,
As the Special Administrator of the Estate
of Roger Gonzalez, deceased,
Plaintiff,
v.
Arthur Davida, et al.,
Defendants.

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Case No. 15 CV 00776
Judge Philip G. Reinhard

ORDER
For the following reasons, the court grants the motion to dismiss filed by
McHenry County and Keith Nygren [90], grants the motion to dismiss filed by Crawford
Memorial Hospital [98], grants in part and denies in part the motion to dismiss filed by
Wexford Health Services, Inc., Dr. Arthur Davida, and Dr. Roderick L. Matticks [101],
and denies the motion to transfer venue filed by Crawford Memorial Hospital [108].
McHenry County, Keith Nygren, Crawford Memorial Hospital, and Wexford Health
Services, Inc. are dismissed as defendants.
STATEMENT - OPINION
This matter pertains to the death of Roger Gonzalez while incarcerated by the
IDOC. Plaintiff Victor M. Gonzalez, as special administrator, has filed an action against
several defendants in connection with the decedent Roger Gonzalez’s medical treatment
while incarcerated at the McHenry County Correctional Facility (the “Jail”), the IDOC,
and various hospitals the decedent was transferred to during his incarceration. Plaintiff
names as defendants McHenry County, Keith Nygren, former Sheriff of McHenry
County in his individual capacity, Wexford Health Services, Inc., Wexford physicians Dr.
Arthur Davida and Dr. Roderick L. Matticks, Crawford Memorial Hospital, and Dr.
Stephen Israel.
On January 3, 2017, plaintiff filed his second amended complaint [82]. On
February 1, 2017, defendants McHenry County and Sheriff Nygren filed a motion to
dismiss the claims against them [90], along with a memorandum in support [91]. On
February 6, 2017 defendant Crawford Hospital filed a motion to dismiss the claims
against it [98] and defendants Wexford, Dr. Arthur Davida, and Dr. Roderick L. Matticks
(the “Wexford defendants”) filed a motion to dismiss several of the claims against them
[101]. Notably, the motions to dismiss filed by Crawford Hospital and the Wexford
defendants contended that plaintiff’s state medical malpractice claims should be

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dismissed in part because he failed to file a § 2-622 physician’s affidavit as required
under Illinois law.
On February 10, 2017, plaintiff filed a third amended complaint, which among
other changes included a § 2-622 affidavit. See [110]. Magistrate Judge Iain Johnston
ruled that the filing was proper and that the various defendants’ motions to dismiss would
stand against the third amended complaint. See [109]. On March 24, 2017, plaintiff filed
an omnibus response to the various motions to dismiss [117]. On April 13, 2017,
defendant Crawford Hospital filed its reply [119]. On April 17, 2017, replies were filed
by the County defendants [120] and the Wexford defendants [121].
In addition to the motions to dismiss, on February 9, 2017, Crawford Hospital
filed a motion to change venue to the Southern District of Illinois, which was not joined
by any other defendants [108]. On March 24, 2017, plaintiff filed a response, which was
joined by all other defendants apart from Dr. Israel, who did not join either motion. See
[116]. On April 13, 2017, Crawford Hospital filed a reply [118].
In reviewing the parties’ respective motions to dismiss, the court is required to
“accept as true all factual allegations in the amended complaint and draw all permissible
inferences in the plaintiff's favor.” Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017)
(internal quotations and alterations omitted). “A complaint will survive a motion to
dismiss for failure to state a claim if it ‘contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “That is, while a plaintiff need not plead detailed factual
allegations to survive a motion to dismiss, she still must provide more than mere labels
and conclusions or a formulaic recitation of the elements of a cause of action for her
complaint to be considered adequate.” Id. (internal quotations and alterations omitted).
I. Factual Background:
The following facts are taken from plaintiff’s third amended complaint.
A. Allegations against the County Defendants.
On October 18, 2013, decedent entered the McHenry County Jail as a pre-trial
detainee. On entry to the Jail, decedent weighed approximately 400 pounds and had a
variety of serious medical needs, including chronic hepatitis-C with liver failure, renal
failure, leg edema, cirrhosis, congestive heart failure, and morbid obesity.
Plaintiff alleges that Sheriff Nygren “knew that the Jail could not accommodate a
person” with his serious needs and that Sheriff Nygren “turned a blind eye to the fact that
plaintiff’s decedent would suffer serious pain and permanent injury if he remained at the
jail.” [110] at 4. Finally, plaintiff alleges that “the official policy of the Jail was to
accept custody of all persons charged with crimes who could not post bond or otherwise
secure pre-trial release without regard to the inability of the Jail to accommodate that
person’s serious medical needs.” Id.

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Plaintiff alleges that the decedent suffered several medical incidents as “the direct
and proximate result” of the alleged policy. Specifically, on December 25, 2013, the
decedent was found lying on the floor of his cell unresponsive and was evacuated to a
hospital for emergency treatment, remaining there until December 27, 2013. There were
similar occurrences and hospitalizations from January 29, 2014 until February 2, 2014,
on March 1, 2014, on April 5, 2014, from July 19, 2014 until August 3, 2014, on August
6, 2014, from August 9, 2014 until August 11, 2014, and from August 15, 2014 until
September 2, 2014. Plaintiff alleges that the decedent suffered pain and emotional
distress due to these occurrences.
During the July, 2014 hospitalization, plaintiff alleges that “medical staff at the
hospital concluded that plaintiff’s decedent required physical therapy, but noted that
physical therapy was not available at the Jail.” Id. at 5. During the August to September
hospitalization, a physician at the hospital wrote the following in the medical records:
Basically he comes to the hospital with vastly elevated serum ammonia
level, gets put on lactulose and rifaxirnin to which the morning level
decreases and the patient returns to his baseline. Then he is released from
the hospital, and comes back with the same type picture a few days later.
…
This patient is critically ill and will definitely need more than two
midnights in hospital secondary to his risk of comorbidities, permanent
disability and death.
Id. at 5-6.
While at the hospital during the August to September hospitalization, the decedent
was allegedly encouraged to enter a plea of guilty while at the hospital in exchange for a
short sentence to be served in the IDOC. Plaintiff concludes that McHenry County and
Sheriff Nygren are responsible for damages due to the harm the decedent suffered prior to
his transfer to the IDOC under 42 U.S.C. § 1983 and 42 U.S.C. § 12131 (“the ADA”).
B. Allegations against the remaining defendants.
On September 2, 2014, the decedent pleaded guilty and was transferred from the
hospital to the Northern Receiving Center (“NRC”) of the IDOC. At the time of transfer,
the decedent weighed approximately 460 pounds.
Defendant Dr. Davida was responsible for the decedent’s medical treatment while
at the NRC. On September 2, 2014, Dr. Davida was informed of the decedent’s most
recent hospitalization, and on September 5, 2014, Dr. Davida was informed of the results
of a variety of abnormal blood tests from that hospitalization. Plaintiff alleges that
despite this knowledge, Dr. Davida “turned a blind eye” to the decedent’s serious medical
needs. For example, the decedent was given no medical attention following his arrival at
the NRC. The decedent had been taking a variety of medications, including lactulose to

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treat his cirrhosis; he did not receive lactulose at the NRC until September 22, 2014.
Plaintiff argues that this failure resulted because of medical personnel at Wexford or “in
the alternative, plaintiff’s decedent did not receive lactulose until September 22, 2014 as
the result of a policy or widespread practice of defendant Wexford.” Id. at 8.
On September 22, 2014, medical personnel ordered a repeat of the decedent’s
blood tests, the results of which became available on September 24, 2014 and revealed
that decedent’s medical condition had worsened. The decedent’s condition deteriorated
until he was sent from the NRC to the University of Illinois Hospital (“UIH”) from
October 22, 2014 to October 31, 2014. Physicians at UIH recommended that the
decedent receive treatment for his hepatitis C, “preferably with noninterferon therapy.”
Id. at 9. Upon the decedent’s return to the NRC, Dr. Davida did not follow the UIH
physicians’ advice, allegedly due to a Wexford policy rather than a medical judgment.
On November 3, 2014, a physician employed by Wexford (possibly Dr. Davida),
ordered that the decedent receive morphine, allegedly with knowledge that this treatment
was inconsistent with the decedent’s medical condition and would result in his imminent
death.
On the morning of November 6, 2014, the decedent was transferred from
Stateville Correctional Center to the Robinson Correctional Center. Medical staff at
Robinson recognized that the decedent had a variety of serious medical problems,
including acute chronic heart failure, ascites (accumulation of fluid in the peritoneal
cavity), stage 3 renal disease, morbid obesity, anemia, hepatitis C, chronic obstructive
pulmonary disease, liver disease, and hypertension. At approximately 6:00 p.m. on
November 6th, the decedent complained to the medical staff at Robinson that he felt his
ammonia level was high. A nurse concluded that the decedent required immediate
medical attention and notified an assistant warden and defendant Dr. Matticks. An
ambulance transported the decedent to Crawford Memorial Hospital, where he arrived at
8:45 p.m.
Defendant Dr. Stephen Israel was responsible for the decedent’s treatment at
Crawford. Upon the decedent’s arrival, his weight was measured at 489 pounds and his
blood pressure was “very high” at 182/71. See id. at 11-12. Also at the time of his
arrival, Dr. Israel ordered blood work and a urinalysis, but did not order a check of his
ammonia levels. Plaintiff alleges that this failure was a departure from the standard of
care for a patient, like the decedent, with liver failure, ascites, and who was less than fully
responsive.
At 9:14 p.m., before Dr. Israel had evaluated the blood test results, defendant Dr.
Matticks instructed Dr. Israel to return the decedent to Robinson. Shortly after this time,
Dr. Israel reviewed the blood and urinalysis tests, and observed that the decedent’s blood
pressure had gradually decreased to 157/85. Dr. Israel complied with Dr. Matticks’s
instructions and ordered that the decedent be returned to Robinson. Plaintiff alleges that
Dr. Israel’s compliance “was motivated by a refusal to accommodate the disability of
morbid obesity exhibited by plaintiff’s decedent.” Id. at 11. Plaintiff alleges that because

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of the decedent’s blood pressure, because he had not been stabilized, because of the
results of the blood work and urinalysis, a physician meeting the standard of care would
have recognized that a person in the decedent’s position required medical treatment at a
hospital.
After returning to Robinson, the decedent died on November 9, 2014. The
medical examiner described the cause of death at “morbid obesity, left ventricular
hypertrophy, severe pulmonary congestion, end stage hepatic cirrhosis, splenomegaly,
blood morphine concentration 287 mg/ml.” Id. at 12.
C. Plaintiff’s 2-622 affidavit.
Plaintiff attaches a 2-622 affidavit and physician’s report to the third amended
complaint. The physician’s report concludes that lactulose was necessary for the
decedent and that “this regimen was not continued while he was incarcerated.” Id. at 15.
The report notes that Dr. Davida or a physician supervised by Dr. Davida
prescribed morphine, and that Wexford physicians, including Dr. Matticks, continued the
prescription until the decedent died. The report opines that:
This use of opiates in a patient, like Mr. Gonzalez, who had liver failure,
cirrhosis, ascites and renal failure is a gross deviation from the ordinary
standard of care because a cirrhotic liver cannot fully metabolize these
drugs. This results in accumulation of the opiates in the patient’s blood
stream and can lead to medication overdose, which, as reflected in the
death certificate, is what happened in this case.
Id.
The report also opines that “it was a gross departure from the ordinary standard of
care for Dr. Israel to discharge Mr. Gonzalez from the hospital” with his history of blood
pressure at Crawford. The report also notes that the decedent was placed on an
excessively large amount of oxygen, which elevated his carbon dioxide level. The report
opines that Dr. Israel’s failure to order Ammonia levels was a breach of the standard of
care. Finally, the report notes that Dr. Matticks directed Dr. Israel to return the decedent
to Robinson, and opines that the decedent “was not stable for transfer and his evaluation
was incomplete. It was a great departure from the ordinary standard of care to transfer
Mr. Gonzalez back to the prison.” Id. at 16.
II. Analysis.
First, the court will analyze the various defendants’ motions to dismiss, after
which the court will analyze Crawford Memorial Hospital’s motion to transfer venue.
A. Crawford Memorial Hospital’s motion to dismiss.

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As an initial matter, plaintiff clarifies in his third amended complaint that his sole
claim against Crawford Memorial Hospital (“CMH”) is “a claim under the ADA.” See
[110]. CMH argues that plaintiff has failed to state a claim against CMH under the ADA.
CMH first suggests that there may not be a private cause of action under Title II of the
ADA. The court will not consider this argument because it agrees with CMH’s second
argument, that plaintiff has failed to state a claim under the ADA.
Title II of the ADA provides that “Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
The Seventh Circuit has noted that:
Our sister circuits have helpfully divided § 12132 into two clauses for
purposes of analysis: no otherwise eligible individual with a disability may
be (1) ‘excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity’ by reason of such
disability; or (2) ‘subjected to discrimination by’ a public entity by reason
of disability.
Brumfield v. City of Chicago, 735 F.3d 619, 626 (7th Cir. 2013). The Seventh Circuit
explained in Brumfield that “the statute's prohibition against discrimination is properly
read to cover all types of disability discrimination in the ‘outputs’ of state and local
government—their delivery of public services, programs, and activities to eligible
recipients.” Id. at 628. To state a claim under Title II of the ADA requires that the
plaintiff show that denial of a service was discriminatory, based on the plaintiff’s
disability.
Here, plaintiff claims in the third amended complaint that the decedent was
effectively denied continued service at CMH after Dr. Israel complied with Dr.
Matticks’s instructions and ordered that the decedent be returned to Robinson. Plaintiff
alleges that Dr. Israel’s order violated the ADA because it “was motivated by a refusal to
accommodate the disability of morbid obesity exhibited by plaintiff’s decedent.” [110] at
11. CMH argues that the decedent was never denied services and that, even if he was, the
denial did not constitute discrimination on the basis of a disability.
The court need not decide whether the decedent was denied medical services
under the meaning of the ADA, because it agrees with CMH that, even taking plaintiff’s
non-conclusory factual allegations as true, it is not plausible that Dr. Israel discriminated
against the decedent on the basis of his morbid obesity. Instead, as plaintiff tacitly
acknowledges in his allegations, Dr. Israel ordered the decedent transferred to Robinson
because the transfer was requested by Dr. Matticks. As the Seventh Circuit in Brumfield
explained, the defendant’s denial of services must be undertaken because of the
plaintiff’s disability. Here, there are no factual allegations to support a plausible
inference that Dr. Israel ordered the decedent released because the decedent was

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morbidly obese. As such, the court agrees with CMH that plaintiff’s ADA claim against
CMH must fail.1
B. The County defendants’ motion to dismiss.
In his third amended complaint and omnibus response to the various motions to
dismiss, plaintiff explains that he has raised an ADA Title II claim against McHenry
County (through the current Sheriff in his official capacity), as well as 1983 deliberate
indifference against McHenry County and former Sheriff Keith Nygren (the County
defendants). The County defendants have moved to dismiss the claims against them in
plaintiff’s third amended complaint on several grounds.
With regard to plaintiff’s ADA Title II claim against McHenry County pursuant
to 42 U.S.C. § 12132, the court reiterates the general analysis of Title II as articulated in
the previous section, describing plaintiff’s ADA claim against Crawford Memorial
Hospital in the previous section. See Brumfield, 735 F.3d at 626. In addition, the court
notes that the Seventh Circuit has explained how Title II is to be analyzed in the context
of a claim that a defendant public entity has failed to accommodate a disabled plaintiff:
[T]he Attorney General, at the instruction of Congress, has issued an
implementing regulation that outlines the duty of a public entity to
accommodate reasonably the needs of the disabled. The Title II regulation
reads:
A public entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to
avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7).
....
First, as our cases already hold, failure to accommodate is an independent
basis for liability under the ADA. Second, the plain language of the
regulation also makes clear that an accommodation only is required when
necessary to avoid discrimination on the basis of a disability. Third, the
regulation states, in its plain language, that any accommodation must be a
reasonable one.

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The court notes that Crawford Memorial Hospital raised two additional arguments for
dismissal, namely, plaintiff’s failure to attach a 2-622 affidavit in the second amended
complaint and plaintiff’s failure to name CMH or Dr. Israel as defendants until the statute
of limitations had expired. First, plaintiff cured his initial failure to attach a 2-622 report
in his third amended complaint. Second, because CMH has already been dismissed and
Dr. Israel did not join in CMH’s motion or argument with regard to the statute of
limitations, the court will not consider that argument here.

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Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737, 750-51 (7th Cir.
2006).
As an initial matter, the parties discuss at some length whether plaintiff suffered
from a disability of morbid obesity within the meaning of Title II. As with the ADA
claim against Crawford Memorial Hospital, the court will not consider whether the
decedent suffered from a disability because the court agrees with the County defendants
that plaintiff has failed to allege a discriminatory action, be it directly or for failure to
accommodate.
As the County defendants note, plaintiff does not allege actions that the County
defendants took to deny him services because he was morbidly obese. Moreover, while
plaintiff alleges several medical incidents that required the decedent to be transferred
temporarily to the University of Illinois Hospital, there are no specific allegations as to
how the County defendants failed to make an accommodation that was required to avoid
discrimination against the decedent for his morbid obesity. Plaintiff simply concludes
that the decedent “suffered pain and suffering and severe emotional distress as the direct
and proximate result of the inability of the Jail to accommodate a person with the
disabilities and serious medical needs of plaintiff’s decedent.” See [110] at 6. Without
any allegations that would allow for an inference of plausibility that specific services
were denied by the County defendants as a result of their failure to accommodate the
decedent for his morbid obesity, plaintiff’s complaint fails to state a claim under Title II
of the ADA. As such, the court grants the County defendants’ motion to dismiss
plaintiff’s ADA claims against them.
With regard to plaintiff’s 1983 claims, plaintiff claims that the County defendants
were deliberately indifferent to his medical needs because they had a policy of accepting
any pre-trial detainees to the Jail, without regard to whether the Jail could accommodate
the medical needs of the pre-trial detainees. Specifically, plaintiff alleges that the County
defendants were aware of the decedent’s morbid obesity and his various medical
conditions, knew that the Jail would be unable to properly care for a detainee in the
decedent’s condition, but nevertheless took custody of him because of their policy to
accept pre-trial detainees without regard to whether the Jail could accommodate their
medical needs.
The Seventh Circuit has held that:
Prison officials violate the Eighth Amendment's proscription against cruel
and unusual punishment when they display deliberate indifference to
serious medical needs of prisoners. A claim of deliberate indifference to a
serious medical need contains both an objective and a subjective
component. To satisfy the objective component, a prisoner must
demonstrate that his medical condition is objectively, sufficiently serious.
A serious medical condition is one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person

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would perceive the need for a doctor's attention. To satisfy the subjective
component, a prisoner must demonstrate that prison officials acted with a
sufficiently culpable state of mind. The officials must know of and
disregard an excessive risk to inmate health; indeed they must both be
aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists and must also draw the inference. This is not to
say that a prisoner must establish that officials intended or desired the
harm that transpired. Instead, it is enough to show that the defendants
knew of a substantial risk of harm to the inmate and disregarded the risk.
Additionally, a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.
Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir 2005) (internal quotations and citations
omitted).
Defendants note that plaintiff has not alleged any incident in which the County
defendants refused to treat the decedent. Plaintiff counters that this is not dispositive.
The Seventh Circuit has held that treatment itself does not foreclose a finding of
deliberate indifference:
Prison officials must provide inmates with medical care that is adequate in
light of the severity of the condition and professional norms. The receipt
of some medical care does not automatically defeat a claim of deliberate
indifference. Deliberate indifference may occur where a prison official,
having knowledge of a significant risk to inmate health or safety,
administers “blatantly inappropriate” medical treatment, acts in a manner
contrary to the recommendation of specialists, or delays a prisoner's
treatment for non-medical reasons, thereby exacerbating his pain and
suffering.
Perez v. Fenoglio, 792 F.3d 768, 777 (7th Cir. 2015).
Here, the crux of plaintiff’s deliberate indifference claim is his allegation “that
plaintiff’s decedent was harmed at least eight times at the Jail because it could not care
for him.” [117] at 12. The County defendants argue that this conclusory allegation is
insufficient because plaintiff has failed to allege facts allowing a plausible inference that
plaintiff’s repeated medical incidents requiring hospitalization were due to deliberately
indifferent actions, such as “blatantly inappropriate” treatment, acts contrary to the
recommendations of specialists, or delays in treatment for non-medical reasons. The
court agrees that without some specific allegations of wrongdoing, plaintiff’s contention
that the Jail was “unable” to care for him is insufficient to raise a plausible inference of
deliberately indifferent treatment. See Perez, 792 F.3d at 777.
Plaintiff argues that he has raised a plausible inference of deliberately indifferent
treatment by referencing two physicians’ notes during his hospitalizations at UIH.

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First, plaintiff points to the fact that during the decedent’s July, 2014 hospitalization,
“medical staff at the hospital concluded that plaintiff’s decedent required physical
therapy, but noted that physical therapy was not available at the Jail.” See [110] at 5.
Second, plaintiff points to a physician’s note at the end of the decedent’s August, 2014 to
September, 2014 hospitalization, wherein the physician stated:
Basically [the patient] comes to the hospital with vastly elevated serum
ammonia level, gets put on lactulose and rifaxirnin to which the morning
level decreases and the patient returns to his baseline. Then he is released
from the hospital, and comes back with the same type picture a few days
later.
…
This patient is critically ill and will definitely need more than two
midnights in hospital secondary to his risk of comorbidities, permanent
disability and death.
Id. at 5-6.
The court agrees with the County defendants that these allegations are insufficient
to raise a plausible inference that the County defendants knew they were unable to treat
the decedent’s medical needs at the Jail but housed him anyway.
First, there is no evidence of “blatantly inappropriate” treatment; plaintiff does not
describe and the medical notes do not suggest what treatment the decedent had at the Jail
in any depth, other than the fact that he was sent to UIH on a number of occasions.
Second, there is no evidence that the County defendants ignored
recommendations from the physicians at UIH. Plaintiff does not allege that they
informed the County defendants of the decedent’s need for physical therapy or that the
physician who wrote the note or anyone else informed the County defendants that the
decedent should not be released from UIH or that he should be undergoing treatment at
the Jail that he was not currently receiving. For example, the physician’s note explains
that the decedent improved after receiving lactulose and rifaxirnin, but there is no
evidence that the decedent should have but was not given these treatments in the Jail.
The only other reference to drug treatment suggests that the decedent had been taking
prescription medications, including lactulose, prior to his arrival at NRC (which would
include his time at the Jail), after which those medications stopped for a time. See [110]
at 8.
Third, there is no evidence of any delays in treatment for non-medical reasons.
Rather, the only evidence is that the decedent was promptly taken to UIH after every
medical incident.
The court recognizes the plaintiff’s argument that the County defendants were
deliberately indifferent, not necessarily for any specific act they took while the decedent
was at the Jail, but for the very fact of placing the decedent in the Jail while knowing they

10

could not properly care for his medical conditions at the Jail. But the court agrees with
the County defendants that plaintiff’s allegations are conclusory and he fails to allege
facts sufficient to raise a plausible inference that housing the decedent at the Jail was
deliberately indifferent in itself. There are no allegations sufficient to raise a plausible
inference that the alleged medical incidents requiring hospitalization occurred because of
the Jail’s chronic inability to care for the decedent. There are no non-conclusory
allegations that, if this was the case, the County defendants were put on notice of this fact
by anyone, including the decedent’s physicians at UIH. As such, plaintiff has failed to
state a claim of deliberate indifference against the County defendants and the court grants
their motion to dismiss with respect to the 1983 claims against them.2
Because all claims against them have been dismissed, McHenry County and Keith
Nygren are hereby dismissed as defendants.
C. The Wexford defendants’ motion to dismiss.
Initially, the Wexford defendants argued that plaintiff’s claims against them
should be dismissed because he failed to attach a 2-622 affidavit and his ADA claims
against them failed to state a claim. Defendants acknowledge in their reply that plaintiff
cured his defect with regard to the 2-622 affidavit by attaching it in his third amended
complaint. Defendants also point out that plaintiff clarified that he does not raise an
ADA claim against them. As such, the court will proceed to the remaining arguments:
first, that plaintiff has failed to properly allege Monell liability against Wexford, and
second, that plaintiff has improperly grouped allegations against the individual
defendants such that it is impossible to determine what causes of action he has pleaded
against them.
The court agrees that Wexford must be dismissed. As plaintiff acknowledges, the
Seventh Circuit in Shields v. Illinois Dept. of Corrections, 746 F.3d 782 (7th Cir. 2014)
held that “Respondeat superior liability does not apply to private corporations under §
1983.” Id. at 789. Plaintiff notes in his third amended complaint that Wexford is sued
under a respondeat superior liability theory for its agents in order to preserve this issue
for appeal. See [110] at 2. Plaintiff also contends summarily that “in the alternative,
plaintiff’s decedent did not receive lactulose until September 22, 2014 as the result of a
policy or widespread practice of defendant Wexford.” Id. at 8. At this stage, such
conclusory allegations are insufficient to state a claim under a Monell theory of liability.
As such, Wexford is dismissed as a defendant.
On the other hand, the court disagrees that plaintiff’s claims against Dr. Davida
and Dr. Matticks must be dismissed as improperly grouped allegations. Defendants cite
Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008) for the proposition that “[v]ague

2

Because the court agrees with the County defendants that plaintiff has failed to state a
claim of deliberate indifference, the court need not consider their alternative arguments
that plaintiff has failed to state a claim as to Monell liability, former Sheriff Nygren’s
personal liability, or his qualified immunity.

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references to a group of ‘defendants,’ without specific allegations tying the individual
defendants to the alleged unconstitutional conduct, do not raise a genuine issue of
material fact with respect to those defendants.” Id. at 778. While defendants are correct
that such vague references are insufficient to survive a motion to dismiss, plaintiff’s third
amended complaint does not suffer from those errors.
Here, plaintiff specifies the unlawful actions Dr. Davida and Dr. Matticks are
alleged to have taken. He claims both federal deliberate indifference and state medical
malpractice claims against both physicians. The medical malpractice and deliberate
indifference claims against each are clearly articulated in the body of the complaint. For
example, when discussing Dr. Davida’s actions after the decedent was transferred to the
NRC, plaintiff alleges that “A physician who met the ordinary standard of care would
have provided plaintiff’s decedent with medical attention following his arrival at the
NRC and following the receipt of the results of the blood tests recorded above.” [110] at
7. “Defendant Davida did not meet this standard of care and turned a blind eye to the
serious medical needs of plaintiff’s decedent, thereby causing plaintiff’s decedent to
suffer harm.” Id. “Defendant Davida’s treatment deviated so radically from accepted
professional judgment, practice, or standards that it was not medical judgment at all.” Id.
Other claims are described with similar clarity throughout the third amended
complaint. As such, it is sufficiently clear from the face of the third amended complaint
which allegations are raised against the respective defendants and the Wexford
defendants’ motion to dismiss must be denied with regard to Dr. Davida and Dr.
Matticks.
For the foregoing reasons, the Wexford defendants’ motion to dismiss [101] is
granted in part and denied in part. Wexford is dismissed as a defendant. The claims
against Dr. Davida and Dr. Matticks will proceed.
D. Crawford Memorial Hospital’s motion to transfer venue.
Finally, defendant Crawford Memorial Hospital has filed a motion to transfer
venue to the Southern District of Illinois [108]. As noted, the court has granted CMH’s
motion to dismiss and CMH has been dismissed as a defendant. Notably, no other
defendants joined CMH’s motion to transfer venue. In fact, all defendants other than Dr.
Israel joined plaintiff’s response opposing the motion. As such, no remaining parties
support the motion and the majority of remaining parties oppose it. This alone is
sufficient reason to deny the motion. Moreover, one of the primary reasons CMH gave in
support of its motion was the proposition that a defendant hospital should be sued in its
own district, which is now moot, as CMH has been dismissed. For the foregoing reasons,
CMH’s motion to transfer venue [108] is denied.
For the foregoing reasons, the court grants the motion to dismiss filed by
McHenry County and Keith Nygren [90], grants the motion to dismiss filed by Crawford
Memorial Hospital [98], grants in part and denies in part the motion to dismiss filed by
Wexford Health Services, Inc., Dr. Arthur Davida, and Dr. Roderick L. Matticks [101],

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and denies the motion to transfer venue filed by Crawford Memorial Hospital [108].
McHenry County, Keith Nygren, Crawford Memorial Hospital, and Wexford Health
Services, Inc. are dismissed as defendants.
Date: 9/26/2017

ENTER:

______________________________________
United States District Court Judge
Electronic Notices. (LC)

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