Williams v. Kelly et al
ORDER Signed by the Honorable Amy J. St. Eve on 1/5/2017: The Court denies Defendants' motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). 25 . Defendants' answer is due on or before 1/20/17. Rule 26(a)(1) disclosures shall be exchanged by 1/31/17. [For further details, see Order.] Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DR. JONATHAN KELLY, and
WEXFORD HEALTH SOURCE, INC.,
Case No. 15 C 8135
Judge Amy J. St. Eve
The Court denies Defendants’ motion to dismiss brought pursuant to Federal Rule of
Civil Procedure 12(b)(6). . Defendants’ Answer is due on or before January 20, 2017. Rule
26(a)(1) disclosures shall be exchanged by January 31, 2017.
On June 10, 2016, Plaintiff Robert Williams, by counsel, brought a one-count First
Amended Complaint against Defendants Dr. Jonathan Kelly (“Dr. Kelly”) and Wexford Health
Source, Inc. (“Wexford”) alleging deprivations of his Eighth Amendment rights in relation to his
medical care while incarcerated at Stateville Correctional Center (“Stateville”). See 42 U.S.C. §
1983. Before the Court is Defendants’ Rule 12(b)(6) motion to dismiss. For the following
reasons, the Court denies Defendants’ motion.
“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under
Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule
8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it
rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)
(citation omitted). Under the federal pleading standards, a plaintiff’s “factual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put
differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173
L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). In determining the sufficiency of a
complaint under the plausibility standard, courts must “accept all well-pleaded facts as true and
draw reasonable inferences in the plaintiffs’ favor.” Roberts v. City of Chicago, 817 F.3d 561,
564 (7th Cir. 2016).
In his First Amended Complaint, Plaintiff alleges that he is a 55-year-old male who is
currently incarcerated at Pontiac Correctional Center (“Pontiac”). (R. 17, First Am. Compl. ¶ 5.)
Prior his transfer to Pontiac, Plaintiff was incarcerated at Stateville segregation unit F House.
(Id.) Plaintiff alleges that he has been diagnosed with severe mental illnesses, including
schizophrenia, bi-polar disorder, schizoaffective disorder, and anti-social personality disorder.
(Id. ¶¶ 5, 8.) Further, Plaintiff alleges that Wexford provides health care services, including
mental health services, throughout the Illinois Department of Corrections (“IDOC”). (Id. ¶ 6.)
Defendant Dr. Kelly was and is a psychiatrist at Stateville during the relevant time period. (Id. ¶
Plaintiff has been incarcerated since 1998, and, over the course of his incarceration,
IDOC physicians have prescribed him pharmaceutical drugs including, Risperdal, Geodon,
Depakote, Paxil, Cogentin, and Trilafon. (Id. ¶¶ 9, 10.) For the majority of the years he has been
incarcerated, Plaintiff’s mental healthcare doctors prescribed him Risperdal to treat his schizophrenia
and bi-polar disorder. (Id. ¶¶ 11, 12.) According to Plaintiff, IDOC physicians took him off of
Risperdal three to four times during his incarceration, yet IDOC mental health doctors have
continued to prescribe Risperdal until March 2014. (Id. ¶¶ 11, 13.) Plaintiff maintains that none of
IDOC’s mental health physicians who prescribed Risperdal advised him of the possible side effects.
(Id. ¶ 13.) Plaintiff also asserts that Wexford has failed to adopt policies and practices requiring
mental health doctors to fully advise their patients, such as Plaintiff, of the risk of serious side effects
of drugs such as Risperdal. (Id. ¶ 14.)
In or around January 2013, not long after IDOC transferred Plaintiff to Stateville, Dr.
Kelly prescribed Risperdal to Plaintiff, but did not advise Plaintiff of the drug’s serious side
effects, such as gynecomastia, namely, swollen male breast tissue and glands. (Id. ¶¶ 7, 14, 16.)
Plaintiff further alleges that Dr. Kelly and the IDOC mental health doctors disregarded the
substantial risk of gynecomastia, and failed to advise him that gynecomastia was a primary side
effect of Risperdal. (Id. ¶ 19.) He states that had he known of Risperdal’s side effects, he
“would not have agreed to take Risperdal.” (Id. ¶ 20.) Plaintiff states that he developed
gynecomastia during the relevant time period resulting in significant physical soreness and pain.
(Id. ¶ 22.) Furthermore, Plaintiff maintains that after Dr. Kelly took him off of Risperdal in
March 2014, Dr. Kelly avoided him and refused to see Plaintiff for his regular monthly visits.
(Id. ¶ 23.) Eventually, another IDOC doctor treated Plaintiff for his mental health issues. (Id. ¶
“A prison official may be found in violation of an inmate’s Eighth Amendment right to
be free from cruel and unusual punishment if she acts (or fails to act) with ‘deliberate
indifference to [his] serious medical needs.’” Conley v. Birch, 796 F.3d 742, 746 (7th Cir. 2015)
(quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Deliberate
indifference claims contain both an objective and a subjective component, namely, the inmate
must have an objectively serious medical condition and the defendant must be subjectively aware
of and consciously disregard the inmate’s serious medical need. See Farmer v. Brennan, 511
U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Whiting v. Wexford Health Sources,
Inc., 839 F.3d 658, 662 (7th Cir. 2016). “An objectively serious medical condition is one that ‘a
physician has diagnosed as needing treatment” or that is so obviously serious “that even a lay
person would easily recognize the necessity for a doctor’s attention.’” McDonald v. Hardy, 821
F.3d 882, 888 (7th Cir. 2016) (citation omitted).
In the present motion to dismiss, Defendants do not focus on whether Plaintiff properly
alleged that he suffers from an objectively serious medical condition.1 Instead, Defendants argue
Plaintiff’s allegations that IDOC physicians provided medical treatment without his informed
consent do not rise to the level of the subjective component of deliberate indifference. See, e.g.,
Smith v. Peters, No. 95 C 3009, 1995 WL 382953, at *3 (N.D. Ill. June 23, 1995) (“Medical
treatment that is unauthorized or given without informed consent may be medical malpractice
under state law.”). On the other hand, Plaintiff points to recent Seventh Circuit case law
explaining claims based on a failure to warn about the side effects of prescription drugs:
Some circuits have held that “[p]risoners have a right to such information as is
reasonably necessary to make an informed decision to accept or reject proposed
treatment.” White v. Napoleon, 897 F.2d 103, 113 (3d Cir.1990); see also Pabon
v. Wright, 459 F.3d 241, 250 (2d Cir.2006) (same). But “a doctor should not be
required to provide each prisoner-patient with an exhaustive list of all the possible
adverse effects of each aspect of his treatment. Instead, a doctor simply must
provide a prisoner with such information as a reasonable patient would find
necessary.” Pabon, 459 F.3d at 250. Otherwise, “after receiving appropriate
treatment that proved to have unpleasant side effects, a prisoner might claim that
he had not received sufficient information to allow him to decide whether to
refuse that treatment.” Id. Although we have not had occasion to comment on this
precise standard, we have adopted a general rule that is consistent with these
circuits: The Eighth Amendment protects inmates from deliberate indifference to
substantial risks of serious damage to their health. See Helling v. McKinney, 509
U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Roe v. Elyea, 631 F.3d 843,
858 (7th Cir. 2011); Board v. Farnham, 394 F.3d 469, 479 (7th Cir. 2005).
Phillips v. Wexford Health Sources, Inc., 522 Fed. Appx. 364, 367 (7th Cir. 2013) (emphasis in
original). In other words, “one type of deliberate indifference claim is where a doctor fails to
disclose information that is ‘reasonably necessary to make an informed decision to accept or
reject proposed treatment,’ but only if the failure to disclose creates a substantial risk of serious
damage to the prisoner’s health.” Manzanales v. Krishna, 113 F. Supp. 3d 972, 979 (N.D. Ill.
2015) (quoting Phillips, 522 Fed. Appx. at 366-67); see also Cox v. Brubaker, 558 Fed.Appx.
677, 678-79 (7th Cir. 2014).
For the first time in their reply brief, Defendants make the cursory argument that Plaintiff must
allege that he suffers from a “serious damage to his health.” Not only is Defendants’ argument
perfunctory, but it is well-settled in this Circuit that arguments raised for the first time in a reply
brief are waived. See Wagner v. Teva Pharm. USA, Inc., 840 F.3d 355, 360 (7th Cir. 2016).
Under the circumstances, Plaintiff has plausibly alleged his deliberate indifference claim
because he alleges that the risk of the serious health condition gynecomastia was substantial
enough that Dr. Kelly and other IDOC medical professionals – who were aware of this serious
side effect of Risperdal – should have advised him of this side effect so that he could have made
an informed decision. See Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”). Under Phillips and Cox, Plaintiff’s allegations
fulfill the subjective prong under the deliberate indifference standard. See Chatham v. Davis,
839 F.3d 679, 684 (7th Cir. 2016) (“A prison official may be liable for deliberate indifference
only if he ‘knows of and disregards an excessive risk to inmate health or safety.”) (quoting
Farmer, 511 U.S. at 837). The Court therefore denies Defendants’ motion to dismiss.
Dated: January 5, 2017
AMY J. ST. EVE
United States District Court Judge
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