Guerrero v. Wexford Health Sources, Inc. et al
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 7/25/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the IDOC Defendants' motion to dismiss 65 is granted in part and denied in part. The motion is granted as to Barnett, who is dismissed from this case with prejudice. The motion is also granted as to defendants Gomez and O'Brien as to Count II only; they remain defendants as to Count III. Randy Pfister and John Baldwin are substituted for Lemke and Godinez, respectively, as to Count II as they currently serve as the warden of Stateville and the Director of the IDOC. The motion is otherwise denied. A status hearing is set on 8/3/17 at 9 a.m. Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JULIO C. GUERRERO,
WEXFORD HEALTH SOURCES, INC.
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Julio Guerrero, an inmate at Stateville Correctional Center, brings claims against a
variety of prison employees (and Wexford Health Sources, which provides healthcare services at
the prison, and several Wexford employees) for deliberate indifference to his foot deformity and
resulting pain. The named employees of the Illinois Department of Corrections (“IDOC”) –
Shanal Barnett, Michael Lemke, Dorretta O’Brien, Royce Brown-Reed, Salvador Godinez, and
David Gomez – have moved to dismiss the counts against them under Fed. R. Civ. P. 12(b)(6).
For the reasons stated below, the motion to dismiss is granted in part and denied in part.
For the purposes of this motion, all factual allegations in the complaint are accepted as
true and all reasonable inferences are drawn in the plaintiff’s favor. See Antonelli v. Sheahan, 81
F.3d 1422, 1427 (7th Cir. 1996). The Court summarizes only the facts that are relevant for the
IDOC defendants’ motion, and thus does not recite much of the medical information and
grievances that are relevant to the healthcare defendants.
Julio Guerrero has had a genetic deformity in his feet since childhood, which causes him
to have “flat feet” with no arches and collapsed insteps. Am. Compl. (“Compl.”) ¶ 14, ECF No.
31. This condition causes him “extreme pain in his feet, knees, and lower back, rendering it
difficult for him to walk or to perform any kind of physical activity” without custom orthotic
shoes. Id. Guerrero had such shoes growing up, and he had such shoes in prison until June of
2012, when the shoes were lost in his transfer between prisons. Id. at ¶ 14-15. Beginning in late
2012, Guerrero tried to convince medical staff at Stateville to prescribe him custom orthotic
shoes but struggled to even get appointments to see medical staff. See id. at ¶ 17-24.
The IDOC defendants first enter the picture on October 14, 2013, when a grievance
officer denied one of Guerrero’s requests for shoes and to see the doctor because according to
Royce Brown-Reed (the Healthcare Unit Administrator) the medical staff had told Guerrero to
purchase shoes from the commissary and he had done so. See Compl. Ex. E. Brown-Reed
determined a referral to the Medical Director (the only doctor on staff) was not necessary. Id.
Guerrero’s grievance had specifically explained that the commissary shoes did not have the arch
support he needed to alleviate his symptoms. See Compl. Ex. D. Warden Michael Lemke
checked the “I concur” box on this grievance denial. See Compl. ¶ 26.
The bulk of Guerrero’s claims against the IDOC defendants stem from an October 29,
2013 cell house round performed by Lemke, Brown-Reed,1 and Assistant Warden Dorretta
O’Brien. See Compl. ¶ 28. During the rounds, Guerrero approached these defendants and
explained that he needed an appointment with the Medical Director to receive treatment for his
flat feet. See id. at ¶ 29. He further explained that Wexford was failing to provide him with a
remedy, an appointment with the Medical Director, or an appointment with an orthopedist. Id.
Guerrero showed Lemke and O’Brien his shoes, which showed “balding on the insides of the
shoes and Plaintiff’s collapsed arches touching the ground.” Id. Finally, he explained his pain
Brown-Reed is occasionally referred to in the complaint as “Braun-Reed.” The Court
uses “Brown-Reed,” which is how the defendant is identified in the caption and briefing.
levels, to which Lemke and O’Brien responded “Wow, that’s bad!” Id. They wrote Guerrero’s
name on a list and said they would look into it.
At some point, O’Brien told Guerrero to speak with Brown-Reed directly, which he did.
See Compl. ¶ 30. Guerrero also showed Brown-Reed his inadequate shoes and explained his
pain. Id. At some point (it is unclear whether it was before or after the other conversations),
Brown-Reed told O’Brien that Guerrero’s problems were not covered by IDOC healthcare. Id.
Later on October 29, Guerrero wrote a letter to Salvador Godinez, the Director of IDOC,
summarizing the October 29, 2013 cell house round interactions and pleading with him to
provide Guerrero with the medical care he sought. Compl. ¶ 30. It is not clear what, if any,
response Guerrero received.
In June 2014, Guerrero was finally allowed to see the Medical Director, and was granted
over the counter insoles for his shoes, which he alleges did not assist with his problems. See id.
at ¶ 33-34. On July 23, 2014, he fell while playing basketball (as a result of the ill-fitting insoles)
and injured his ankle. See id. at ¶ 35-36. Guerrero was treated by Shanal Barnett, a medical
technician, over the course of three visits. See id. at ¶ 36. During these visits, Barnett prescribed
pain medication and monitored his condition, but did not determine the cause of his injury
beyond the fall. Id. It does not appear that Guerrero ever discussed the insoles or his foot
problem with Barnett.
Guerrero continued through this period to file grievances and otherwise contest his
inability to receive treatment by an orthopedist. On April 29, 2015, Deputy IDOC Director David
Gomez was approached by Guerrero during cell house rounds. Compl. ¶ 42. In Spanish,2
Guerrero’s primary language appears to be Spanish, and throughout his complaint there
are references to Guerrero requiring the assistance of other inmates to communicate in written
English. See, e.g., Compl. ¶ 45.
Guerrero explained that his pain was worsening and that he was not being treated. Id. He showed
Gomez the balding shoes and that his arches touched the ground. Id. Gomez asked whether he
had exhausted the grievance process, and when Guerrero confirmed that he had, Gomez wrote
down Guerrero’s name and number and said “I’ll see what I can do, but I can’t promise you
anything.” Id. Gomez also told Guerrero “I know what I would do,” which Guerrero alleges
suggested litigation as a remedy. Id.
This motion moves to dismiss Count II, which is against only Lemke, O’Brien, Godinez,
and Gomez and only in their official capacities, and Count III, which is against all the IDOC and
medical defendants in their individual capacities.3 See Mot. at 2, ECF No. 65. Count II requests
only injunctive relief, while Count III requests damages. The IDOC defendants argue that Count
II should be dismissed because “the named Defendants are no longer situated in a capacity with
Stateville or the IDOC to ensure that the injunctive relief would be carried out.” Id. They request
Count III be dismissed because “Plaintiff fails to allege that the IDOC Defendants were
personally involved in the alleged deprivation of rights, nor can it be inferred that Defendants’
[sic] had the requisite knowledge.” Id. For the reasons stated below, the motion to dismiss is
denied as to every defendant except Barnett (for all counts) and Gomez and O’Brien as to Count
I. Injunctive Relief (Count II)
Defendants Lemke, Godinez, Gomez, and O’Brien argue they should be dismissed from
Count II because only Gomez is still employed with IDOC, and he is now assigned to another
facility. See Def.’s Mem. at 5-6. Further, they argue the Assistant Warden and Deputy Director
The IDOC defendants also request to be dismissed from Count I, which is explicitly
brought only against Wexford. The Court therefore denies that request as moot.
lack “ultimate authority” over medical decisions, and therefore are not proper parties to this
request for injunctive relief. Id. at 6. As to the second point, the request for injunctive relief is
broader than a mere request that Guerrero be sent to an orthopedist (although that is certainly
part of it). Count II requests an injunction that would also provide “a reasonable and timely
process for cancelling, skipping, and/or rescheduling appointments” and “an option for E.S.L.
[English-as-a-Second-Language] inmates to write grievances in Spanish, as well as to translate
grievance responses from English into Spanish.” See Compl. Relief ¶ 1. But there is no basis to
infer a need for injunctive relief operating on subsidiary employees of the state facility; any
injunction issued that requires action by the facility would of necessity be issued as to the
Warden and, perhaps, the IDOC, which would have the responsibility for ensuring the
institution’s, or Department’s, compliance with the injunction. There is no need or reason to
include subsidiary employees as defendants to a claim that seeks a remedy against the institution.
As to the propriety of the parties now that they have left employment at Stateville, district
court practice seems to be split between substituting the individuals that currently hold the
respective positions as soon as the change is known and waiting until any injunction issues.
Compare Johnson v. Randle, No. 10-CV-0135-MJR-SCW, 2012 WL 1964996, at *16 (S.D. Ill.
May 31, 2012) (substituting current IDOC Director) with Echezarreta v. Kemmeren, No. 10 C
50092, 2013 WL 4080293, at *4 (N.D. Ill. Aug. 13, 2013) (issue of whether injunctive
defendants still work at prison can be addressed through summary judgment) and Foster v.
Ghosh, 4 F. Supp. 3d 974, 984 (N.D. Ill. 2013) (substituting upon grant of injunction). Dismissal
of a count requesting injunctive relief is not, and has not been construed by courts in this district
to be, appropriate merely because a different person in that official capacity would have to carry
out any granted injunction. This Court reads the Seventh Circuit’s decision in Gonzalez v.
Feinerman to suggest that immediately substituting the current employees serving in those
official capacities is the appropriate response to personnel changes. See Gonzalez v. Feinerman,
663 F.3d 311, 315 (7th Cir. 2011) (substituting current warden). Thus, the motion to dismiss
Count II is granted as to defendants Gomez and O’Brien, denied as to defendants Lemke and
Godinez, and Randy Pfister and John Baldwin are substituted for Lemke and Godinez,
respectively, as to Count II as they now hold those positions.
II. Damages Relief (Count III)
A plaintiff states an Eighth Amendment claim when he has alleged prison officials
displayed “deliberate indifference to [his] serious medical needs.” Greeno v. Daley, 414 F.3d
645, 652 (7th Cir. 2005). This requires a demonstration of an objectively, sufficiently serious
medical condition as well as a “sufficiently culpable state of mind” such that the official knew of
and disregarded an “excessive risk to inmate health.” Id. at 653. At the motion to dismiss stage
“[k]nowledge and intent, in particular, need not be covered in detail” and merely alerting the
appropriate personnel responsible for an issue and having them do nothing is sufficient to state a
claim at the motion to dismiss stage. Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009). A
non-medical staff member, however, cannot be held liable for fulfilling their job responsibilities
and referring the matter to medical personnel. Id. at 595 (no requirement that prison employees
act as “ombudsmen” to resolve any problem that comes to their attention regardless of whether it
is within their realm of responsibility); see also, e.g., Greeno, 414 F.3d at 656. With these
principles in mind, the Court addresses individually whether each defendant has had sufficiently
plausible personal involvement and state of mind.4
The defendants do not contest that Guerrero’s condition, which he has alleged causes
severe pain and restrictions on physical activity, is an objectively serious medical condition at
Barnett is the medical technician who assessed and treated Guerrero’s ankle injury. See
Compl. ¶ 36. The brunt of Guerrero’s complaint is that Barnett never determined the “larger
cause” of his fall (presumably that he did not have the correct orthopedic shoes). Id. Nowhere
does Guerrero allege, however, that Barnett was in any way aware of his “flat feet” condition or
that he required treatment for that problem. Nowhere in the “Offender Injury Report” attached to
the complaint or the “Offender Outpatient Progress Notes” attached to the complaint are
Guerrero’s flat feet or requests for orthopedics mentioned. See Compl. Ex. L, M. In order to have
violated Guerrero’s Eighth Amendment rights, Barnett must have known facts that would allow
her to “know of and disregard an excessive risk to inmate health.” Greeno, 414 F.3d at 653.
Here, Barnett is not alleged to have known of anything more than that Guerrero injured his ankle
playing basketball, and she treated that injury. Guerrero suggests it is unbelievable that “given
Mr. Guerrero’s medical history and previous visits to the HCU” Barnett would not have been
aware of Guerrero’s problem. See Pl.’s Resp. at 12. The complaint, however, does not allege
Barnett had ever previously treated Guerrero or that she consulted his previous records while
treating his ankle injury. Moreover, the context in which she encountered Guerrero—treating
him for an ankle injury incurred during a basketball game—gave her no reason to suspect that
Guerrero had a debilitating foot condition; to the contrary, the fact that Guerrero was playing
basketball creates reason to question just how serious his foot condition was. Therefore,
Guerrero has not alleged that Barnett had sufficient knowledge to state a claim against her
personally. The motion to dismiss is granted as to Barnett.
Defendant Lemke was the warden at Stateville, who concurred in the denial of Guerrero’s
August 7, 2013 grievance regarding his lack of medical care. Compl. ¶ 26. He also was
approached by Guerrero during the October 29, 2013 cell house rounds, when Guerrero
explained he needed care, was not receiving it, and Lemke wrote down Guerrero’s name and said
he would look into it. Id. at ¶ 28-29. It does not appear, however, that Guerrero received any
follow up from Lemke and he did not see a doctor until June 4, 2014, more than five months
later. See id. at ¶ 33. IDOC contends Lemke cannot be liable because he was entitled to defer to
the judgment of healthcare professionals. See Def.’s Mem. at 9. However, in order to rely on the
judgment of medical professionals Lemke would have to have actually consulted with medical
professionals or forwarded Guerrero’s case for their consideration. See Berry v. Peterman, 604
F.3d 435, 440 (7th Cir. 2010) (defendant not liable when he “consulted with the medical staff,
forwarded Berry's concerns to the DOC, and timely responded to Berry's complaints”). At this
stage, the complaint alleges that Lemke was made aware that Guerrero was in serious pain and
not receiving any treatment, and Lemke said he would act but appears not to have done so. To
the extent the defendants wish to contest those sparse facts, summary judgment is the appropriate
time to demonstrate that Lemke either lacked knowledge or did in fact rely on medical personnel.
The motion to dismiss is denied as to Lemke.
The allegations against O’Brien are almost identical to those of Lemke, other than that
she allegedly told Guerrero to speak with Brown-Reed at some point. See Compl. ¶ 30. The
Court is unclear when O’Brien referred Guerrero to Brown-Reed – whether it was before the
October 29 cell rounds or during that conversation. Id. Confusingly, Guerrero also alleges that
O’Brien told him that Brown-Reed did not consider his complaints to be healthcare-related. See
Compl. Ex. F. As discussed above, O’Brien was entitled to rely on other employee’s medical
expertise if she investigated and relied on their knowledge. See Greeno, 414 F.3d at 657. A
supervisor, however, may not turn a blind eye to a subordinate’s refusal to provide medical
treatment. See Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Drawing the inferences in
favor of the plaintiff, the complaint states that not only did O’Brien fail to follow up after she
became aware of plaintiff’s needs and lack of treatment on October 29, but she was aware that
IDOC was refusing to treat plaintiff because his needs were not considered medical by BrownReed. If true, such actions would state a claim for deliberate indifference to Guerrero’s serious
medical needs. Construing all inferences in favor of the plaintiff, the motion to dismiss is denied
as to O’Brien.
Brown-Reed is the Healthcare Unit Administrator at Stateville. Compl. ¶ 11. The Court is
unclear as to whether Brown-Reed has any medical training or is merely an administrator.
Brown-Reed was evidently consulted by a grievance officer regarding Guerrero’s August 7
grievance, when she advised that “a referral to see [the] Medical Director is not deemed
necessary.” Id. at ¶ 26. Brown-Reed was also present during the October 29 cell house rounds,
and at some point Guerrero explained his pain and his situation. Id. at ¶ 28, 30. At some point,
Brown-Reed allegedly told O’Brien that Guerrero’s complaints were not “covered by
healthcare.” Id. at ¶ 30. Again, Brown-Reed is entitled to rely on medical judgments, but only if
she actually contacts medical personnel or reviews medical records. Here, Brown-Reed allegedly
told O’Brien that Guerrero’s issues were not covered by her department (and thus, presumably,
were not medical issues at all). One reasonable inference from her statement is that Brown-Reed
did not refer Guerrero’s issues to medical personnel or otherwise rely on medical expertise. Of
course, it might also imply Brown-Reed did consult with doctors who indicated Guerrero lacked
a medical issue. At this stage, the Court must make inferences in the plaintiff’s favor. Therefore,
the motion to dismiss is denied as to Brown-Reed because she had been made aware of
Guerrero’s problems during the cell house round and declined to act on them in any way.
Gomez is the Deputy Director of IDOC. Compl. ¶ 13. On April 29, 2015, Guerrero
approached Gomez during cell house rounds and explained his condition and that he was not
receiving adequate care. Id. at ¶ 42. After Guerrero confirmed he had exhausted his grievances,
Gomez wrote down Guerrero’s name and number and said he would “see what I can do.” Id.
Gomez allegedly also hinted that Guerrero should pursue litigation. Id. This interaction provided
Gomez with sufficient personal knowledge to know that Guerrero had a problem and that Gomez
should consult with doctors or otherwise forward Guerrero’s concerns to the medical department.
However, Guerrero appears to have received no information suggesting Gomez took any action.
At this stage, the failure to take any action after being aware of a prisoner’s lack of medical care
causing a painful condition is sufficient to state a claim. Therefore, the motion to dismiss is
denied as to Gomez.
At the time of this lawsuit, Godinez was the Director of IDOC. Compl. ¶ 12. The only
interaction Guerrero is alleged to have had with Godinez is that Guerrero mailed him a letter
regarding his lack of treatment.5 Id. at ¶ 30. The letter, attached the complaint, is addressed
At one point in describing Guerrero’s interaction with Gomez, the complaint says
“Plaintiff shared with Mr. Godinez that he was still experiencing pain.” See Compl. ¶ 42. In
simply to “Director” and is stamped with “inmate issues Nov. 6 2013.” See Compl. Ex. F. IDOC
in its reply claims that the fact Guerrero received his requested relief in June 2014 (a visit with
the Medical Director) suggests Godinez did not act with deliberate indifference. See Def.’s Reply
at 8, ECF No. 72. That five month delay, with no other evidence that Godinez is the reason
Guerrero was seen, is insufficient to suggest Godinez investigated or responded to Guerrero’s
letter. Guerrero was pursing many grievances and clearly making his complaints known to many
different people. Furthermore, although it is quite possible that Godinez may not have received
the letter that is merely addressed to “Director,” it appears to have been received by some official
because it has a receipt stamp. Several courts have allowed allegations such as the failure to
respond to letters regarding a lack of care to move past the motion to dismiss stage, because
(when taking the allegations of the complaint as true) Godinez would have had sufficient
knowledge to require him to act in some way (at least to show that the complaint had been
referred to an appropriate staff member for follow up) if he had read and received the letter. See
Wilder v. Wexford Health Sources, Inc., No. 11 C 4109, 2015 WL 2208440, at *12 (N.D. Ill.
May 8, 2015) (collecting cases). Although the Court is skeptical that factually the letter was
received and read by Godinez himself and that Godinez in fact did nothing, such issues are
factual ones for summary judgment. Therefore, the motion to dismiss is denied as to Godinez.
Because the injunctive relief count can properly be brought against whoever is currently
acting in the official capacities formerly held by the named defendants and there are plausible, if
minimal, allegations that all the defendants except Barnett had sufficient knowledge of
Guerrero’s lack of treatment, the motion to dismiss is denied except as to Barnett and as to
defendants Gomez and O’Brien in regards to Count II. The motion is granted as to Barnett, who
context, the Court construes this as a typo and that the individual Guerrero spoke with was
Gomez and not Godinez.
is dismissed from this case with prejudice. The motion is also granted as to defendants Gomez
and O’Brien as to Count II only; they remain defendants as to Count III. Randy Pfister and John
Baldwin are substituted for Lemke and Godinez, respectively, as to Count II as they currently
serve as the warden of Stateville and the Director of the IDOC.
Dated: July 25, 2017
John J. Tharp, Jr.
United States District Judge
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