Peacock v. Rigsyby et al

Filing 50

MEMORANDUM Opinion and Order:For the foregoing reasons, Dr. Davis's and Dr. Obaisi's motion, R. 40 , is denied, and Wexford's motion, R. 38 , is granted. Peacock's claim against Wexford is dismissed without prejudice. Peacock is granted leave to file an amended complaint by May 11, 2016 if he believes he can cure the deficiencies regarding his claim against Wexford the Court has described in this opinion and order. If Peacock does not file an amended complaint by that date, the Court's dismissal of his claim against Wexford will become a dismissal with prejudice. Signed by the Honorable Thomas M. Durkin on 4/7/2016:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TAKI PEACOCK,
Plaintiff,
v.

No. 15 C 1884

BRANDON RIGSBY; AVEEN NAGPAL; PATTY
TORRI; WARDEN NICHOLAS LAMB;
ASSISTANT WARDEN WALTER NICHOLSON;
DR. SALEH OBAISI; DR. ANN HUNDLEY
DAVIS; WEXFORD HEALTH SOURCES, INC.,

Judge Thomas M. Durkin

Defendants.
MEMORANDUM OPINION AND ORDER
Taki Peacock, an inmate at Stateville Correctional Center, alleges that
Stateville staff and medical service providers were deliberately indifferent to the
risk posed by mowing the grass on a certain hill on Stateville’s grounds, and to an
injury Peacock suffered while mowing the grass. See R. 35. Wexford Health Sources,
Inc.—Stateville’s medical services provider—and Wexford employees—Dr. Saleh
Obaisi and Dr. Ann Hundley Davis—have moved to dismiss Peacock’s claims for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See R.
38; R. 40. For the following reasons, Dr. Davis and Dr. Obaisi’s motion is denied and
Wexford’s motion is granted.
Legal Standard
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th

Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This “standard demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Aschcroft v. Iqbal,
556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required,
“labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court
to draw a reasonable inference that the defendant is liable for the misconduct
alleged.” Mann, 707 F.3d at 877 (quoting Iqbal, 556 U.S. at 678). In applying this
standard, the Court accepts all well-pleaded facts as true and draws all reasonable
inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
Background
Peacock was employed as a landscaper inside Stateville’s grounds, and was
assigned to mow the grass. R. 35 ¶¶ 17-18. On July 4, 2013, while mowing wet grass
on a hill, Peacock’s left foot slipped under the mower, and two of his toes were
severed. Id. ¶¶ 26-29. Peacock was eventually taken to the hospital where he
underwent surgery, but the surgeon was unable to reattach Peacock’s toes. Id. ¶¶
35-41.

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After surgery, the surgeon wrote an order to Stateville’s medical staff stating
that the dressing of Peacock’s wound should be changed three times a day, and
providing a regimen of medications. Id. ¶ 42. Peacock does not allege what this
regimen was.
After he was discharged from the hospital and returned to the Stateville
Health Care Unit, Peacock alleges that a Stateville nurse changed his medical order
on July 5, 2013 so that his wound dressing was changed only once a day. Id. ¶ 45.
Peacock also alleges that he was given an inconsistent amount of Motrin and
antibiotics contrary to the surgeon’s orders, and that on July 9 he was not given any
medication at all. Id. ¶¶ 44, 46.
Peacock alleges that on July 10, 2013, Dr. Obaisi and Dr. Davis told him that
his open wound could be “exposed for an unlimited length of time without risk of
damage or danger.” Id. ¶ 47. Peacock also alleges that the next day Dr. Obaisi told
him that during the Civil War, wounds of lost limbs “would be left open and skin
would grow back.” Id. ¶ 49.
On July 16, 2013, Peacock noticed a pungent odor from his wound while his
dressing was being changed, but Dr. Obaisi said the odor was normal. Id. ¶ 51.
Peacock alleges that the nurse who changed his dressing the next day “expressed
deep concern about the very strong odor coming from [Peacock’s] wound,” and
ordered a culture to check for infection. Id. ¶ 52. On July 20, 2013, Peacock began to
experience pain and some numbness in his left toes and leg. Id. ¶ 53. On July 23,
2013, Dr. Obaisi informed Peacock that his wound was infected. Id. ¶ 54. Peacock

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alleges that the infection caused him pain and prolonged the recovery period for his
toe amputation. Id. ¶ 62.
Analysis
I.

Dr. Davis and Dr. Obaisi
Peacock expressly alleges that Dr. Davis and Dr. Obaisi told him that “his

open wound could be exposed for an unlimited length of time without risk of
damage or danger,” R. 35 ¶ 47, and that they “purposefully fail[ed] to follow the
wound care prescribed by the [surgeon].” Id. ¶ 62. Dr. Davis and Dr. Obaisi argue
that these allegations amount to a mere “difference of opinion between doctors” that
cannot “support a claim for deliberate indifference.” R. 41 at 4.
That characterization of Peacock’s allegations ignores the broader context
within which the allegations are made—namely that he eventually suffered an
infection. It is true that the “Constitution is not a medical code that mandates
specific medical treatment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008).
And furthermore, “evidence that another doctor would have followed a different
course of treatment is insufficient to sustain a deliberate indifference claim.” Burton
v. Downey, 805 F.3d 776, 786 (7th Cir. 2015). But those principles are derived from
the broader rule that, in the prison context, “medical professionals . . . are entitled
to deference in treatment decisions unless no minimally competent medical
professional would have so responded under the circumstances at issue.” McGee v.
Adams, 721 F.3d 474, 481 (7th Cir. 2013) (emphasis added). In other words, “[w]hen
a medical professional acts in his professional capacity, he may be held to have

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displayed deliberate indifference only if the decision by the professional is such a
substantial departure from accepted professional judgment, practice, or standards,
as to demonstrate that the person responsible actually did not base the decision on
such a judgment.” Id.
Dr. Davis and Dr. Obaisi contend that these standards demand that the
Court defer to their treatment decisions. But the Court is skeptical that “accepted
professional practice and standards” provide for a continuum of treatments for a
wound like Peacock’s, such that there is room for any deference. The Court believes
that there must be a definitive number of times a day the dressing for such a wound
should be changed and a definitive regimen of antibiotics that is necessary to
protect such a wound from infection. And based on the fact that he eventually
suffered from an infection, Peacock has plausibly alleged that Dr. Davis’s and Dr.
Obaisi’s treatment constituted a substantial departure from the accepted standard.
Absent evidence of how a “minimally competent medical professional” would have
treated a wound like Peacock’s, the Court cannot say whether the treatment Dr.
Davis and Dr. Obaisi provided to him satisfied the constitutional standard. These
are questions of fact which cannot be answered at this stage of the proceedings.
Peacock’s allegations, however, make it plausible that Dr. Obaisi and Dr. Davis
failed meet the standard of a “minimally competent medical professional.” Thus, Dr.
Davis and Dr. Obaisi’s motion to dismiss is denied.

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II.

Wexford
Peacock also alleges that Wexford “has implemented and maintained a policy

and/or practice of: (1) requiring its staff at Stateville to disregard the medical care
prescriptions of outside treating physicians if the cost is too expensive; and/or (2)
requiring its staff to not provide required medical treatment if the cost is too high.”
R. 35 ¶ 59. In opposition to Wexford’s motion, Peacock attached a Wexford policy
document stating that “[c]ost has been and must continue to be a consideration” in
deciding treatment. R. 45-1 at 3.1 This document also states that “cost [is] usually . .
. the last variable considered.” Id. at 2.
Peacock’s bald allegation that his allegedly deficient treatment was caused by
a Wexford policy “to cut medical costs . . . does not plausibly suggest the existence of
such a policy.” Myrick v. Anglin, 496 Fed. App’x 670, 675 (7th Cir. 2012) (affirming
dismissal of Monell claims based on an alleged policy “to cut medical costs” because
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice”). Peacock’s allegation of a cost-cutting policy
is too speculative and untethered to his injury to support his claim. His factual
allegations do not plausibly allege how a cost-cutting policy could possibly have
caused his infection. Peacock alleges that his infection was caused by a failure to
change his bandages frequently enough or give him a sufficient regimen of

It is permissible to consider evidence a plaintiff’s attaches to his brief in opposition
to a motion to dismiss. See Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015) (“We
have held that facts alleged by a plaintiff in a brief in opposition to a motion to
dismiss may be considered when evaluating the sufficiency of a complaint so long as
they are consistent of the allegations in the complaint.”).

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antibiotics. Peacock fails to allege that the cost of bandages and antibiotics is a
significant percentage of Wexford’s budget such that a cost-cutting policy would
have entailed restricting provision of bandages and antibiotics. Even if Peacock had
made such an allegation, the Court finds such an allegation to be speculative and
implausible absent additional facts from which the Court could infer that a costcutting policy existed that would have impacted the kind of treatment Peacock
allegedly received. And contrary to Peacock’s argument, the policy document he
attached to his brief does not support his allegations.
Courts in this district have dismissed similar claims for similar reasons. See
Sharif v. Ghosh, 2013 WL 228239, at *6 (N.D. Ill. Jan. 18, 2013) (“Plaintiff’s
contention of a policy or custom of inadequately treating inmates or refusing to
order tests for them based upon financial reasons is at best speculative, as well
belied by the records and attachments to his complaint.”); Carter v. Elyea, 2012 WL
3779064, at *5 (N.D. Ill. Aug. 31, 2012) (the plaintiff alleged a policy of “creation,
tolerance, or failure to object to the financial disincentives to transfer detainees to
off-site medical facilities when necessary for appropriate and necessary medical care
and treatment. But the complaint says very little in support of these purported
policies and practices. Instead, the complaint focuses almost exclusively on the
events from the first report of [the plaintiff’s] pain on August 3, 2010, to his surgery
the following day.”).
The Court is aware that other courts in this district have denied similar
motions to dismiss. But in those cases the plaintiff alleged deprivation of more

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expensive treatment (such as denying or delaying referrals to specialists outside the
prison) or included additional facts that made the plaintiffs’ claims plausible. See
Harper v. Wexford Health Sources, 2016 WL 1056661, at *1 (N.D. Ill. Mar. 17, 2016)
(“when [the plaintiff] received a recommended course of treatment from physicians
in the gastrointestinal unit at the [UIC] Hospital, Wexford, Obaisi and Stolworthy
failed to review the recommendations. When UIC Hospital wanted Harper to return
for further treatment, Obaisi failed to facilitate the return trip.”); Shaw v. Obaisi,
2015 WL 638521, at *4 (N.D. Ill. Feb. 12, 2015) (“Wexford’s policies included
‘refusing or delaying medical treatment and/or collegial review prescribed by offsite
medical professionals such as doctors at UIC; delaying or refusing to provide
prescribed pain medication to lower costs.’”); Watkins v. Ghosh, 2011 WL 5981006,
at *8 (N.D. Ill. Nov. 28, 2011) (“Watkins alleges that Wexford, in an effort to cut
costs, has a widespread practice of understaffing Stateville so that prisoners are
unable to obtain the treatment that they require. Watkins also alleges that Wexford
lacks a procedure for the treatment of degenerative disk disease, loss of disk height,
and sacral dysraphism, and that Wexford further lacks medical personnel
competent to treat these conditions. Rather than referring patients who suffer from
these maladies to outside specialists, Wexford simply denies them treatment in an
effort to cut costs.”); Brown v. Ghosh, 2010 WL 3893939, at *9 (N.D. Ill. Sept. 28,
2010) (the plaintiff alleged that “Wexford Health ‘pressured’ [his] medical care
providers to deny radiation therapy,” and “the allegation that Wexford Health
pressures medical care providers to deny medical care is specific enough to alert

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defendants to the policy he alleges infringes on his constitutional right.”); McDonald
v. Wexford Health Sources, 2010 WL 3034529, at *3 (N.D. Ill. July 30, 2010)
(“According to Plaintiff, the cost cutting measures resulted in the firing of a
dietician who provided low cholesterol meals; a decreased number of medical
technicians in the cell houses at Stateville, which resulted in him having to wait
weeks and sometimes months to receive medical care; and leaving Plaintiff without
access to a medication to lower his cholesterol that did not also cause him serious
pain in his kidneys.”). By contrast, the lack of factual allegations plausibly
establishing that a cost-cutting policy exists in this case, or that such a policy could
have caused Peacock’s injury, is fatal to his claim against Wexford based on an
express policy.
Lastly, to the extent Peacock alleges that Wexford has a widespread custom
or practice of providing deficient medical care due to cost concerns, Peacock’s
allegations about his own experience are insufficient to make such an allegation
plausible. See Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir.
2010) (“[T]here is no clear consensus as to how frequently [certain] conduct must
occur to impose Monell liability [under the custom and practice theory], except that
it must be more than one instance, or even three.”) (internal quotation marks and
citations omitted); Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008) (“[I]t is
necessarily more difficult for a plaintiff to demonstrate an official policy or custom
based only on his own experience because what is needed is evidence that there is a
true municipal policy at issue, not a random event.”); see also Davis v. Metro. Pier &

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Exposition Auth., 2012 WL 2576356, at *12 (N.D. Ill. July 3, 2012); Lewis v. County
of Cook, 2011 WL 839753, at *14 (N.D. Ill. Feb. 24, 2011); Travis v. City of Chicago,
2012 WL 2565826, at *5 (N.D. Ill. June 29, 2012).
Conclusion
For the foregoing reasons, Dr. Davis’s and Dr. Obaisi’s motion, R. 40, is
denied, and Wexford’s motion, R. 38, is granted. Peacock’s claim against Wexford is
dismissed without prejudice. Peacock is granted leave to file an amended complaint
by May 11, 2016 if he believes he can cure the deficiencies regarding his claim
against Wexford the Court has described in this opinion and order. If Peacock does
not file an amended complaint by that date, the Court’s dismissal of his claim
against Wexford will become a dismissal with prejudice.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: April 7, 2016

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