Taylor v. Wexford Health Sources, Inc. et al

Filing 153

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 3/6/2018. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN E. TAYLOR, JR.,
Plaintiff,

Case No. 16-cv-3464

v.
WEXFORD HEALTH SOURCES,
INC., et al.,

Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff John Taylor, an inmate at Stateville Correctional Center (SCC),
sued Defendant Wexford Health Sources, Inc.—the company contracted to provide
medical care to Illinois inmates—several Wexford physicians and executives, and
several SCC correctional officers under 42 U.S.C. § 1983.

Plaintiff alleges that

Defendants violated his Eighth Amendment rights by demonstrating deliberate
indifference to his hernia, growths in his right arm, and his chronic pain.
Several Defendants moved to dismiss: Dr. Saleh Obaisi 1 and Wexford, [69];
Dr. Michael Warso, [72]; and Dr. Arthur Funk, [85]. Defendants Tarry Williams
and Randy Pfister (the SCC Defendants) moved for judgment on the pleadings.
[77]. Defendants Darius Holmes, Elaine Gedman, and Diana Malloy (the Executive
Defendants) moved for summary judgment, [90], shortly after Plaintiff moved for an
entry of default against them, [87]. This Court addresses each category of motion in
Obaisi died in December 2017, after the parties fully briefed his motion. [147]. His counsel filed a
Suggestion of Death, id., but has not yet identified the executor of his estate.

1

1

turn.

For the reasons explained below, this Court denies Obaisi and Wexford’s

motion to dismiss, grants Warso’s motion to dismiss, denies Funk’s motion to
dismiss, denies the SCC Defendant’s motion for judgment on the pleadings, denies
the Executive Defendants’ motion for summary judgment, and denies as moot
Plaintiff’s motion for entry of default.
I.

Motions to Dismiss
Obaisi, Wexford, Warso, and Funk all moved to dismiss Plaintiff’s second

amended complaint for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). [69, 72, 85].
A.

Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide
a “short and plain statement of the claim” showing that the pleader merits relief,
Fed. R. Civ. P. 8(a)(2), so the defendant has “fair notice” of the claim “and the
grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain
“sufficient factual matter” to state a facially plausible claim to relief—one that
“allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 570). This plausibility standard “asks for more than a sheer
possibility” that a defendant acted unlawfully. Williamson v. Curran, 714 F.3d 432,
436 (7th Cir. 2013). Thus, “threadbare recitals of the elements of a cause of action”
and mere conclusory statements “do not suffice.” Limestone Dev. Corp. v. Vill. of

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Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
In evaluating a complaint under Rule 12(b)(6), this Court accepts all wellpleaded allegations as true and draws all reasonable inferences in the plaintiff’s
favor. Iqbal, 556 U.S. at 678. This Court does not, however, accept a complaint’s
legal conclusions as true. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Rule
12(b)(6) limits this Court to considering the complaint, documents attached to the
complaint, documents central to the complaint (to which the complaint refers), and
information properly subject to judicial notice. Williamson, 714 F.3d at 436.
B.

The Complaint’s Allegations

Plaintiff has been in the custody of the Illinois Department of Corrections
(IDOC) since 2007. [32] ¶ 35. IDOC contracts with Wexford for medical services at
its facilities. Id. ¶ 36. The contract obligates Wexford to, among other things,
ensure a “timely and efficient response to all inmates’ health needs.” Id. ¶ 40. At
all relevant times, Obaisi worked for Wexford and served as SCC’s medical director,
while Funk worked for Wexford and supervised medical care in a region that
included SCC.

Id. ¶¶ 12, 15.

Warso “worked with Wexford to treat inmate

patients” at various times. Id. ¶ 33.
1.

Plaintiff’s Hernia

In April 2014, Warso performed “major reconstructive surgery” on Plaintiff to
remove a large mass from Plaintiff’s stomach.

Id. ¶ 42.

During a follow-up

appointment about a month later, Plaintiff asked Warso about swelling he
experienced in his groin and abdomen; Warso told Plaintiff that the swelling was

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normal post-surgery. Id. ¶ 43. Throughout the rest of 2014, however, Plaintiff
experienced “increasing pain” in his abdomen, and he complained to various
Defendants about the pain, including Obaisi, Funk, and Williams (SCC’s thenwarden). Id. ¶¶ 12, 15, 23, 44–45.
After “months of complaints,” Plaintiff saw Warso again in November 2014.
Id. ¶ 46. Warso diagnosed Plaintiff with a ventral hernia that developed from his
surgery; Warso “requested that Plaintiff be seen by a colorectal surgeon.” Id. ¶ 47.
Plaintiff saw a colorectal surgeon in February 2015, who then referred Plaintiff to a
general surgeon for hernia repair. Id. ¶ 48. In July 2015, Plaintiff saw a general
surgeon who told Plaintiff that his “large” hernia needed surgical repair. Id. ¶ 49.
Despite the general surgeon’s recommendation and Plaintiff’s severe pain, Obaisi—
SCC’s medical director—did not order any treatment or surgery. Id. ¶ 50. When
Plaintiff saw Obaisi for another ailment, Obaisi “merely glanced at Plaintiff’s
hernia” and told him that the hernia “did not need any additional attention.” Id. ¶
51. Plaintiff alleges that Obaisi and Funk denied him the hernia repair surgery
because of Wexford’s policy and custom of turning “a blind eye” to inmates’ medical
needs and delaying or denying necessary treatment. Id. ¶¶ 53, 55.
2.

Growths on Plaintiff’s Right Arm

In April 2013, Plaintiff told Obaisi about two growths on his right arm
between his shoulder and elbow. Id. ¶ 68. Obaisi told Plaintiff to tell an oncologist
about the growths during his next scheduled appointment. Id. Around two months
later, Plaintiff told Warso and another doctor about the growths and the resulting

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pain, but “nothing was done about these masses.”

Id. ¶ 69.

Plaintiff filed

grievances about the growths in July, September, and November of that year before
finally seeing Warso again in November for an examination. Id. ¶ 70. Plaintiff says
that “MRIs were recommended”—presumably by Warso—“to evaluate these
masses.” Id.
Despite Warso’s recommendation, Plaintiff never had any MRIs for the
growths. Id. ¶ 83. In February 2015, Plaintiff filed multiple grievances about the
lack of MRIs before he got to see Obaisi, who examined the growths and referred
Plaintiff back to Warso. Id. ¶ 72. But Plaintiff still did not receive an MRI and did
not get to see Warso. Id. As he did in 2014, Plaintiff filed grievances over the next
several months, asking to have the growths evaluated and his pain treated. Id. But
Obaisi “took no corrective action” to address Plaintiff’s pain or evaluate the growths.
Id. ¶ 73. Plaintiff also wrote letters to the Executive Defendants informing them of
the growths and his medical needs. Id. ¶ 74. Again, Plaintiff alleges that Wexford’s
physician employees followed Wexford’s policies of ignoring inmates’ pain and
“delaying medical treatment involving pain.” Id. ¶ 75.
3.

Chronic Neck and Back Pain

Plaintiff has suffered decades of chronic neck and back pain stemming from a
car accident in the 1980s. Id. ¶ 85. In 2010, Plaintiff saw a pain specialist at the
University of Illinois at Chicago (UIC) Pain Clinic, who treated Plaintiff with
epidural injections in his neck and back. Id. ¶ 87. Plaintiff received twice-yearly
injections and oral pain medication until 2012. Id. But since 2012, Plaintiff has not

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received the injections or pain medication, despite experiencing intense pain. Id.
Beginning in April 2013 and continuing through at least February 2015,
Plaintiff complained to Obaisi about his pain. Id. ¶ 86. Obaisi responded: “I am
more concerned about the mass you have . . . I understand you have chronic neck
and back pain, but once we deal with what might be cancer, I will send you to the
pain clinic.” Id. From September 2014 through October 2015, Plaintiff filed five
grievances about the denial of medical treatment for his pain. Id. ¶ 88. During the
period when Plaintiff did not receive epidural injections, he “suffered significant
pain.”

Id. ¶ 92.

Once again, Plaintiff alleges that Wexford and its physicians

turned a blind eye to his pain because of their practice of cutting costs by limiting
the number of inmates who could receive treatment at the UIC Pain Clinic. Id. ¶ 93
At some point, Obaisi referred Plaintiff back to the UIC Pain Clinic. Id. ¶ 89.
Plaintiff met with a specialist there in February 2016 2 and received an epidural
injection in his neck. Id. ¶ 90. Prior to receiving that injection, Plaintiff could not
hold his head up without experiencing pain and had been confined to a wheelchair.
Id. ¶ 91. The specialist recommended a follow-up visit in two months and suggested
that Plaintiff could receive another injection then. Id. ¶ 90. The second amended
complaint does not specify whether Plaintiff had a follow-up visit.
C.

Analysis

To state a claim under § 1983, Plaintiff must show that someone acting under
the color of state law deprived him of a constitutional right. Rodriguez v. Plymouth
The second amended complaint says February 2015, but that appears to be a typo, given the dates
that Plaintiff filed grievances about not receiving pain treatment.
2

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Ambulance Serv., 577 F.3d 816, 822 (7th Cir. 2009). To state a claim of deliberate
indifference to a medical condition, Plaintiff must allege: (1) an objectively serious
medical condition; and (2) an official’s subjectively deliberate indifference to that
condition.

Gonzales v. Feinerman, 663 F.3d 311, 313 (7th Cir. 2011).

Finally,

Plaintiff must show that each defendant “personally participated in or caused the
unconstitutional actions.” Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008).
1.

Wexford and Obaisi

Wexford and Obaisi first argue that Plaintiff released his claims in this case
through a settlement agreement that resolved two earlier cases between the parties.
[69] at 3. Alternatively, they argue that Plaintiff fails to show that Obaisi exhibited
deliberate indifference, and that he insufficiently pleads a “policy and practice
claim” against Wexford. Id. This Court addresses each argument in turn.
a)

Release of Claims

As a preliminary matter, this Court first determines whether it may consider
the settlement agreement at all. Ordinarily, when a motion to dismiss relies upon
material outside the pleadings, such as the settlement agreement, Rule 12(d)
requires that a court—if it decides to consider the material—treat the motion as one
for summary judgment and give the parties “a reasonable opportunity to present”
all pertinent material. See United States v. Rogers Cartage Co., 794 F.3d 854, 861
(7th Cir. 2015). Here, however, Defendants’ motion presents a purely legal question
of contract interpretation that the parties fully briefed, thus presenting all
pertinent material.

Plaintiff does not object to this Court considering the

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settlement agreement, and no outside evidence would bear on the motion, so this
Court may consider the agreement and address the motion under Rule 12(c). See
id.; see also Woods v. City of Chicago, 234 F.3d 979, 991 (7th Cir. 2000). Rule 12(c)
motions for judgment on the pleadings provide the proper vehicle for raising
affirmative defenses, such as the release of a claim, Rogers Cartage, 794 F.3d at
860, and the same legal standards govern Rule 12(b)(6) and Rule 12(c) motions,
BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015).
In 2011 and 2013, Plaintiff sued Wexford, Obaisi, and others for alleged
constitutional violations stemming from, respectively, the defendants’ failure to
provide Plaintiff with pain medication for chronic neck, back, and hip pain, and
their failure to get Plaintiff treatment for a cancerous mass in his stomach. See
generally Taylor v. Wexford Health Sources, No. 11-cv-7386 (N.D. Ill. 2011); Taylor
v. Wexford Health Sources, No. 13-cv-7501 (N.D. Ill. 2013).

Plaintiff entered a

settlement agreement with Wexford in March 2016 that provided, in pertinent part:
The Plaintiff, his heirs, successors and assigns, agrees [sic] to release,
and hereby releases and forever discharges the Defendant, and all of
its principals, agents, former and present employees (including, but not
limited to, Saleh Obaisi, M.D., and Cynthia Garcia, R.N.), attorneys,
successors, heirs and assigns and all other persons (hereinafter
collectively referred to as “Releasees”) from all actions, claims,
demands, setoffs, suits, causes of action, controversies, disputes,
equitable relief, compensatory and punitive damages, costs and
expenses which arose or could have arisen from the facts alleged or
claims made in the Actions, which the Plaintiff owns, has or may have
against the Releasees, whether known or unknown, from the beginning
of time until the effective date of this Agreement.
[69-2] § 3 (emphasis added). The settlement agreement defines “the Actions” as 11cv-7386 and 13-cv-7501. Id. (Recitals).
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The parties agree that Illinois law governs the settlement agreement. See
[69] at 9; [80] at 7. Under Illinois law, this Court must interpret unambiguous
contract language according to its “plain, obvious, and generally accepted meaning.”
Hampton v. Ford Motor Co., 561 F.3d 709, 714 (7th Cir. 2009) (citing Krilich v. Nat’l
Bank & Trust Co. of Chi., 778 N.E.2d 1153, 1164 (Ill. App. Ct. 2002)). Specifically,
when confronted with a clear and explicit contractual release, this Court must
enforce the release as written. Id. (citing Farmers Auto. Ins. Ass’n v. Wroblewski,
887 N.E.2d 916, 923 (Ill. App. Ct. 2008)).

This Court finds the release

unambiguous, and so enforces it as written. Id.
Wexford and Obaisi argue that the release bars Plaintiff’s claims because he
knew about all three of his current medical conditions when he executed the
release, and so “could and should have” included those claims in his earlier lawsuits
against Wexford and its employees. [69] at 9. Based upon the closely analogous
case of Heard v. Tilden, 809 F.3d 974, 979 (7th Cir. 2016), this Court disagrees.
In Heard, the plaintiff sued Wexford under § 1983, alleging that it violated
the Eighth Amendment by delaying surgery for the third in a series of hernias he
suffered.

Id. at 976.

Like Plaintiff, the Heard plaintiff had settled two prior

lawsuits against Wexford (concerning delayed medical treatment for the two earlier
hernias) through a settlement agreement with similar release language. See id. at
977. The Heard plaintiff agreed to release Wexford and its doctors
from and for any and all actions, causes of action, claims, demands,
damages, costs, loss of services, expense and compensation, including
attorney’s fees, on account of or in any way arising out of, any and all
known and unknown personal injuries resulting or which may
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result from the incidents or events involving DELBERT HEARD, while
he was incarcerated in the Illinois Department of Corrections that
Heard claims violated his constitutional rights, including without
limitation his inguinal hernias, which are the subject matter of cases
06 C 644 . . . and 09 CV 00449.
Id. (On the original document, the plaintiff drew a line through “or which may
result from,” but the court did not indicate that the purported deletion affected its
analysis in any way. Id.) Even though the plaintiff knew at least 17 months before
executing the release 3 that he needed surgery on his third hernia, the Seventh
Circuit held that the release did not bar his claim regarding delayed treatment for
the third hernia. Id. at 978, 980.
The court explained that, under Illinois law, the release’s specific language
referring to the plaintiff’s earlier suits against Wexford controlled over its broader
language elsewhere.

Id. at 979.

Thus, “the references to the 2006 and 2009

lawsuits” limited the release’s scope “to claims arising in those actions, i.e., that
Wexford and its employees had been deliberately indifferent in delaying the first
surgery for the bilateral hernias that were finally repaired in 2007.” Id. (emphasis
added). The court held that Heard’s third lawsuit stated a new and distinct Eighth
Amendment claim, not a repeat of his claims in the earlier lawsuits, because “every
day that the defendants improperly refused to treat Heard’s condition potentially
constituted a new act of deliberate indifference.”

Id.

Consequently, “Heard’s

Wexford and Obaisi erroneously argue that Heard does not control here because that plaintiff’s
third hernia “did not exist at the time the agreement was executed” and so “could not have been
subject to the release.” [69] at 10. Not so. Heard clearly states that: (1) the plaintiff executed the
settlement agreement in September 2012, 809 F.3d at 977; (2) he told a surgeon “that he had known
about the [third hernia] since his 2007 surgery,” id. at 977–78; and (3) his complaint in the postrelease lawsuit showed that “he knew in April 2011” that he needed surgery to address the third
hernia, id. at 978.
3

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allegation that the defendants once again displayed deliberate indifference to his
recurrent hernia in no way” arose from the operative facts of the previous suits. Id.
Here, as in Heard, Plaintiff executed a release that included broad language
about future claims, but also contained specific provisions releasing claims arising
out of “the Actions,” defined as 11-cv-7386 and 13-cv-7501.

[69-2] § 3.

Under

Illinois law, the specific language controls; it limits the release to claims arising
from the facts in the specified actions. See, e.g., Heard, 809 F.3d at 979 (collecting
cases); Capocy v. Kirtadze, 183 F.3d 629, 632 (7th Cir. 1999); Carona v. Ill. Cent.
Gulf. R.R. Co., 561 N.E.2d 239, 242 (Ill. App. Ct. 1990).

So here, rather than

executing a general release, Plaintiff released only claims arising out of: (1) the
defendants’ failure to provide him with a prescription pain medication and allow
him to see a pain specialist between 2009 and 2011, see Taylor v. Wexford Health
Sources, No. 11-cv-7386 (N.D. Ill. 2011); and (2) the defendants’ failure to treat a
cancerous mass on Plaintiff’s stomach in 2013, see Taylor v. Wexford Health
Sources, No. 13-cv-7501 (N.D. Ill. 2013).
In this case, Plaintiff asserts claims based upon different facts than his
earlier cases. Plainly, the earlier cases did not concern a hernia or growths on
Plaintiff’s arm. And although the 2011 case related to Defendants’ failure to treat
Plaintiff’s chronic neck and back pain, Plaintiff now asserts a new claim involving a
different failure to treat that chronic pain from 2012 through 2016. See, e.g., [32] ¶
87.

Thus, the release’s unambiguous language does not bar Plaintiff’s present

claims. See Heard, 809 F.3d at 979 (Plaintiff’s allegation “that the defendants once

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again displayed deliberate indifference” to the same condition “in no way” arose
from the operative facts of the prior suits.); cf. Fair v. Int’l Flavors & Fragrances,
Inc., 905 F.2d 1114, 1114, 1116 (7th Cir. 1990) (broad release barred the plaintiff’s
claim against her former employer because she agreed “never to institute” any “suit
or action at law” involving “any claim of any kind” against the employer).
Finally, to the extent that Wexford and Obaisi suggest that the release bars
Plaintiff from seeking any equitable relief that would result in treatment for his
conditions, they misinterpret the release, and they do so in a manner that would
also clearly violate public policy.

See Heard, 809 F.3d at 980.

Under their

interpretation, “they could have refused indefinitely—with impunity—to arrange
for” future treatment for Plaintiff, “even if the untreated hernia eventually
endangered his life.” Id.
Accordingly, this Court denies the portion of Wexford and Obaisi’s motion to
dismiss that relies upon the prior settlement agreement.
b)

Failure to State a Claim
(1)

Obaisi

Obaisi argues that Plaintiff fails to allege that he exhibited deliberate
indifference to any of Plaintiff’s medical conditions. [69] at 11. For the purposes of
this motion, Obaisi and Wexford concede that all three of Plaintiff’s medical
conditions qualify as “objectively serious.”

Id.

This Court finds that Plaintiff

sufficiently pleads Obaisi’s deliberate indifference.
First, this Court notes that Obaisi’s motion relies upon hundreds of pages of

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exhibits, such as clinical summaries and notes from outside surgeons, that Plaintiff
neither attached to his complaint nor refers to in his complaint. See generally [693]. On a motion to dismiss, this Court generally may only consider the complaint,
documents attached to the complaint, documents central to the complaint (to which
the complaint refers), and information properly subject to judicial notice.
Williamson, 714 F.3d at 436. Obaisi makes no effort to argue that this Court can
take judicial notice of the exhibits, so this Court declines to consider any of his
improper exhibits. Id. As always, a motion to dismiss tests the sufficiency of a
complaint, not the merits of a case. Ctr. for Dermatology & Skin Cancer, Ltd. v.
Burwell, 770 F.3d 586, 588 (7th Cir. 2014). Unlike the settlement agreement that
this Court considered earlier, these clinical exhibits raise factual questions and
belong in a summary judgment motion.
As for Plaintiff’s hernia, he alleges that Warso first diagnosed it in November
2014 and referred him to a colorectal surgeon, who in turn referred Plaintiff to a
general surgeon. [32] ¶¶ 46, 48. The general surgeon told Plaintiff in July 2015
that his hernia needed surgical correction. Id. ¶ 49. Despite multiple surgeons
recommending surgical repair, and despite Plaintiff’s “severe pain,” Obaisi “told
Plaintiff that his hernia was fine and did not need any additional attention.” Id. ¶
51. By the time Plaintiff filed his complaint in November 2016—two years after
Warso referred Plaintiff to a colorectal surgeon—Obaisi still had not facilitated any
surgery for Plaintiff’s hernia.

Id. ¶ 58.

Given those allegations, Plaintiff

sufficiently pleads that Obaisi exhibited deliberate indifference to his hernia. See,

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e.g., Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012) (plaintiff stated a
claim by alleging that he had “a serious, readily treatable condition” that prison
officials ignored “for almost a week”); Grieveson, 538 F.3d at 779 (plaintiff stated a
claim by alleging that guards delayed treating his broken nose for a day and a half);
Edwards v. Snyder, 478 F.3d 827, 830–31 (7th Cir. 2012) (plaintiff stated a claim by
alleging a needless two-day delay in treating a “painfully dislocated” finger).
Likewise, Plaintiff sufficiently pleads deliberate indifference to the growths
on his right arm and his chronic pain. He alleges that Obaisi knew about the
painful growths since April 2013, that Warso recommended MRIs for the growths in
November 2014, that he filed five grievances in 2015 because he had not received
MRIs, and that Obaisi—who treated him throughout this time—“took no corrective
action” for the growths. [32] ¶¶ 68–73. Plaintiff also alleges that he complained to
Obaisi for several years about his chronic pain after he stopped receiving epidural
injections at the UIC Pain Clinic in 2012, but that Obaisi refused to refer Plaintiff
to the Pain Clinic until late 2015 or early 2016. Id. ¶¶ 86–90. At this early stage,
those allegations state a viable claim for deliberate indifference. See, e.g., Smith,
666 F.3d at 1040; Grieveson, 538 F.3d at 779; Edwards, 478 F.3d at 831.
(2)

Wexford

Wexford argues that Plaintiff’s claims fail because he insufficiently pleads
that it has a policy or practice of denying care to inmates. [69] at 14. Alternatively,
Wexford argues that Plaintiff fails to properly allege that its policies or customs led
to the alleged violations of his Eighth Amendment rights. Id. This Court disagrees.

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Wexford cannot face liability under a respondeat superior theory; instead,
Plaintiff must allege that Wexford’s policy, practice, or custom caused the violation
of his constitutional rights. See Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 786 (7th
Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)). He does so.
Plaintiff alleges that Obaisi, over a number of years, repeatedly delayed treatment
for Plaintiff’s various conditions (thus violating Plaintiff’s Eighth Amendment
rights) pursuant to Wexford’s practice of delaying necessary medical treatment for
inmates experiencing pain. See, e.g., [32] ¶¶ 55, 57, 75, 93. Although Plaintiff’s
assertions appear conclusory at first glance, the detailed allegations here of “a
pattern or a series of incidents of unconstitutional conduct” raise an inference of a
policy sufficient to survive a motion to dismiss. See Powe v. City of Chicago, 664
F.2d 639, 650–51 (7th Cir. 1981) (collecting cases).

Thus, this Court denies

Wexford’s motion to dismiss.
2.

Warso
a)

Under Color of State Law

Warso first argues that Plaintiff fails to plead that Warso acted under color of
state law. [73] at 2. Plaintiff alleges that Warso “worked with Wexford to treat
inmate patients,” [32] ¶ 33, but he does not allege that Wexford employed Warso or
had a contractual relationship with him. Wexford’s doctors undoubtedly act under
color of state law, see Shields, 746 F.3d at 797, but other doctors who sometimes
treat inmates do not automatically qualify as state actors, see Manzanales v.
Krishna, 113 F. Supp. 3d 972, 980 (N.D. Ill. 2015). Assessing whether a doctor in

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the latter category qualifies as a state actor requires “a functional inquiry that
focuses on the relationship between the state, the medical provider, and the
inmate.” Id. (citing Rodriguez, 577 F.3d at 826–27).
From the second amended complaint alone, this Court does not have enough
information to conduct the functional inquiry that Rodriguez requires. Ordinarily,
this Court would allow Plaintiff to conduct limited discovery on the nature of
Warso’s relationship with Wexford.

See Rodriguez, 577 F.3d at 830; see also

Manzanales, 113 F. Supp. 3d at 981. But because Plaintiff fails to allege that Warso
exhibited any deliberate indifference to his medical needs, as discussed below, this
Court need not allow such discovery.

Cf. Rodriguez, 577 F.3d at 830 (allowing

limited discovery on the state-actor question because the plaintiff stated a claim).
b)

Deliberate Indifference

Warso next argues that Plaintiff fails to allege that he acted with deliberate
indifference towards Plaintiff’s medical needs. [73] at 4. Indeed, Warso argues that
Plaintiff fails to allege any wrongdoing on his part. Id. This Court agrees that
Plaintiff fails to state a claim for deliberate indifference against Warso.
State-actor physicians face liability under the Eighth Amendment if they
“intentionally disregard a known, objectively serious medical condition that poses
an excessive risk to an inmate’s health.” Gonzales, 663 F.3d at 313. Deliberate
indifference requires that an official exhibit “reckless” conduct “in the criminal
sense,” not merely negligent or even grossly negligent conduct. Lee v. Young, 533
F.3d 505, 509 (7th Cir. 2008) (citing Farmer v. Brennan, 511 U.S. 825, 836–37

16

(1994)). A hernia like Plaintiff’s can be an objectively serious medical problem. See
Gonzales, 663 F.3d at 314 (collecting cases). In fact, any condition that a physician
diagnoses “as mandating treatment” or for which “even a lay person would perceive
the need for a doctor’s attention” qualifies as a serious medical condition. Lee, 533
F.3d at 509. But Plaintiff fails to allege that Warso intentionally disregarded his
hernia or the growths on his arm.
Regarding the hernia, Plaintiff alleges that Warso told him four weeks after
surgery that swelling around his abdomen was normal. [32] ¶ 43. After Plaintiff
complained for months to other Defendants, including Obaisi, about abdominal
pain, he saw Warso for a follow-up appointment; Warso diagnosed Plaintiff with a
ventral hernia. Id. ¶¶ 44–47. Warso immediately referred Plaintiff to a colorectal
surgeon to repair the hernia. Id.
Even drawing inferences in Plaintiff’s favor, Iqbal, 556 U.S. at 678, the
complaint shows that Warso worked as a doctor outside the prison system and that
Plaintiff wanted to visit Warso, but other Defendants failed to permit such
appointments.

Warso’s initial assessment that Plaintiff exhibited normal post-

surgery swelling provides a “classic example of a matter for medical judgment,” and
this Court must defer to that treatment decision “unless no minimally competent
professional would have” responded similarly in that circumstance.

Jackson v.

Kotter, 541 F.3d 688, 697–98 (7th Cir. 2008) (internal quotation marks omitted).
When Plaintiff saw Warso for another follow-up appointment—again, after
complaining to other Defendants about his pain—Warso promptly diagnosed him

17

with a hernia and referred him to a colorectal surgeon for treatment. [32] ¶¶ 44–47.
These allegations fail to show any indifference to Plaintiff’s hernia, let alone
criminally reckless indifference. Cf. Gonzales, 663 F.3d at 314 (plaintiff stated a
claim by alleging that two prison physicians who treated him multiple times
“refused to authorize surgical repair” for his painful hernia).
Regarding the growths, Plaintiff alleges that he told Warso about them
during an appointment, but that “nothing was done about these masses.” [32] ¶ 69.
After Plaintiff filed multiple grievances—directed at prison officials and other
Defendants besides Warso—Plaintiff saw Warso again; Warso recommended MRIs.
Id. ¶ 70. Plaintiff then filed multiple grievances throughout 2014 and 2015 because
he did not receive MRIs and did not get to see Warso again after Obaisi referred
him back to Warso. See id. ¶ 72. Plaintiff’s allegations do not show that Warso
demonstrated deliberate indifference to Plaintiff’s medical needs; instead they show
that Obaisi did not facilitate Plaintiff seeing Warso, and that Obaisi did not act
upon Warso’s recommendation that Plaintiff should undergo MRIs to assess the
growths. Cf. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (plaintiff stated
a claim by alleging that the prison dentist knew about pain he experienced from a
botched tooth extraction, but forced him to wait months to see an oral surgeon).
Plaintiff responds that his broad allegations against “Defendants” establish
deliberate indifference “against each ‘Defendant,’ which defined term includes Dr.
Warso,” on each count of his complaint. [81] at 9. But Plaintiff’s group pleading
implicates nine Defendants, from Wexford down to Warso. See, e.g., [32] ¶ 104 (“As

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a direct consequence of the conduct of the Defendants, Mr. Taylor’s pain worsened
considerably.”).

Such conclusory and generalized pleading fails to show the

requisite personal responsibility for Warso. See Grieveson, 538 F.3d at 776. And
Plaintiff’s argument borders upon the frivolous regarding his chronic pain; he never
alleges that he told Warso about the pain or that Warso had any connection to the
UIC Pain Clinic or its pain specialists. Because Plaintiff fails to adequately allege
that Warso exhibited deliberate indifference to his medical needs (or indeed, did
anything wrong at all), this Court grants Warso’s motion to dismiss.
3.

Funk

Funk first “adopts and incorporates” the portion of Wexford and Obaisi’s
motion to dismiss that argues that Plaintiff released his claims in this suit through
a 2016 settlement agreement. [85] at 4. For the reasons stated above, this Court
denies that portion of Funk’s motion.
Conceding (for purposes of this motion) that Plaintiff’s medical conditions
qualify as objectively serious, Funk next argues that Plaintiff fails to allege that he
exhibited deliberate indifference to any of Plaintiff’s conditions.

Id. at 7.

This

Court disagrees.
Plaintiff alleges that he “had conversations with Dr. Funk complaining about
his medical condition,” and that he wrote grievances to Funk between July and
November 2014 about not seeing Warso for a follow-up visit.

[32] ¶¶ 15, 45.

Plaintiff also alleges that Funk knew about his need to see a specialist at the UIC
Pain Clinic. Id. ¶ 95. In short, Plaintiff contends that he had multiple objectively

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serious medical conditions and that Funk—who, as Wexford’s Regional Medical
Director, could have intervened—knew of Plaintiff’s specific pleas for assistance and
deliberately ignored them.

At this stage, such allegations suffice to survive a

motion to dismiss. See Young v. Wexford Health Sources, No. 10-cv-8220, 2012 WL
621358, at *7 (N.D. Ill. Feb. 14, 2012) (The defendant’s “participation in daily health
care decisions, his supervision of prison physicians, and his role in implementing
Wexford policies and practices are all matters for summary judgment.”); Reliford v.
Ghosh, No. 10-cv-3555, 2011 WL 3704747, at *4 (N.D. Ill. Aug. 19, 2011).
Further factual development at summary judgment or trial might show that
Funk played no role in making decisions about Plaintiff’s care or in establishing
Wexford’s alleged policy of delaying necessary medical care, but at this stage,
Plaintiff sufficiently pleads a deliberate-indifference claim against Funk.

This

Court denies Funk’s motion to dismiss.
II.

SCC Defendants’ Motion for Judgment on the Pleadings
A.

Legal Standard

The SCC Defendants moved for judgment on the pleadings under Rule 12(c);
they argue that a settlement agreement that Plaintiff executed in a prior case
against similar defendants bars his claims in this case. See generally [77]. Courts
decide Rule 12(c) motions under the same legal standards that govern Rule 12(b)(6)
motions. BBL, 809 F.3d at 325. Rule 12(c) motions provide the proper vehicle for
challenging a complaint based upon an affirmative defense, such as the release of a
claim. See Rogers, 794 F.3d at 860.

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That said, when a Rule 12(c) motion relies upon material outside the
pleadings—such as the settlement agreement at issue here—Rule 12(d) generally
requires that a court treat the motion as one for summary judgment and give the
parties “a reasonable opportunity to present” all pertinent material. See id. Here,
however, Defendants’ motion presents a purely legal question of contract
interpretation. As noted previously, the parties have already fully briefed the legal
question and no outside evidence would have “any bearing on the motion,” so this
Court may rule on the motion under Rule 12(c). See id.
B.

Analysis

As discussed above, in 2013, Plaintiff sued Wexford, Obaisi, IDOC, and IDOC
officials for alleged constitutional violations stemming from their failure to get
Plaintiff treatment for a cancerous mass in his stomach. See generally Taylor v.
Wexford Health Sources, No. 13-cv-7501 (N.D. Ill. 2013).

Plaintiff entered a

settlement agreement with IDOC and its officials in April 2016 that provided, in
pertinent part:
The Plaintiff, his heirs, successors and assigns, agrees [sic] to release,
and hereby releases and forever discharges the Defendants in their
individual and official capacities, the IDOC, the State of Illinois, their
agents, former and present employees, successors, heirs and assigns
and all other persons . . . from all actions, claims, demands, setoffs,
suits, causes of action, controversies, disputes, equitable relief,
compensatory and punitive damages, costs and expenses which arose
or could have arisen from the facts alleged or claims made in the
Action, which the Plaintiff owns, has or may have against the
Releasees, whether known or unknown, from the beginning of time
until the effective date of this Agreement.
[77-1] ¶ 4 (emphasis added). The settlement agreement defines “the Action” as

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“Taylor v. Wexford, et al., Number 13-cv-7501.” Id. ¶ 1.
The SCC Defendants argue that Plaintiff released “any causes of action” he
had against current and former IDOC employees through the settlement
agreement, and thus released his present claims because he filed this case before
entering the agreement. [77] at 2. Plaintiff argues that he only released claims
related to the specific facts of his 2013 case. [83] at 4. This Court agrees.
The parties agree that Illinois law governs the settlement agreement. See id.
at 7; [77] at 4. Under Illinois law, this Court must interpret unambiguous contract
language according to its “plain, obvious, and generally accepted meaning.”
Hampton, 561 F.3d at 714 (citing Krilich, 778 N.E.2d at 1164). Specifically, when
confronted with a clear and explicit contractual release, this Court must enforce the
release as written. Id. (citing Farmers Auto, 887 N.E.2d at 923). This Court finds
the release unambiguous and so enforces it as written. Id.
Plaintiff agreed to release all claims arising “from the facts alleged or claims
made” in the 2013 case. [77-1] ¶ 4. Thus, he released all claims arising out of the
defendants’ alleged failure to treat a cancerous mass in his stomach, not all claims
he might ever have against IDOC defendants. See Heard, 809 F.3d at 979 (“When a
release that includes broad language also refers specifically to particular claims,
Illinois courts limit the scope of the release to the claims arising from those specific
references.”). In this case, Plaintiff asserts claims based upon completely different
facts than the 2013 case; he alleges that Defendants failed to treat various
conditions unrelated to the mass, including a hernia and chronic neck and back

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pain. See generally [32].
Contrary to the SCC Defendants’ argument, the fact that Plaintiff had
already filed this case when he settled the 2013 case has no bearing upon the
release, which unambiguously limited Plaintiff to releasing claims arising out of the
specific facts of his 2013 case. See Capocy, 183 F.3d at 632 (When parties “use
specific language in addition to words of general release in a release, courts limit
the more general words to the particular claim arising out of the more specific
reference.”). Like Wexford, Funk, and Obaisi, the SCC Defendants misinterpret the
release, and they do so in a manner that clearly violates public policy. See Heard,
809 F.3d at 980. Under their interpretation, “they could have refused indefinitely—
with impunity—to arrange for” future treatment for Plaintiff, “even if the untreated
hernia eventually endangered his life.” Id.
Accordingly, this Court denies the SCC Defendants’ motion for judgment on
the pleadings.
III.

Executive Defendants’ Motion for Summary Judgment
A.

Legal Standard

Courts should grant summary judgment when the moving party shows that
no genuine dispute exists as to any material fact and the evidence weighs so heavily
in the moving party’s favor that the moving party “must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see also Fed. R. Civ. P. 56.
A genuine dispute as to a material fact exists when, based upon the evidence, a
reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 248. To

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show a genuine dispute as to a material fact, the non-moving party must point to
“particular materials in the record,” and cannot rely upon the pleadings or
speculation. Olendzki v. Rossi, 765 F.3d 742, 746 (7th Cir. 2014).
Courts must evaluate evidence in the light most favorable to the non-moving
party and must refrain from making credibility determinations or weighing
evidence. Rasho v. Elyea, 856 F.3d 469, 477 (7th Cir. 2017) (citing Anderson, 477
U.S. at 255). The moving party bears the burden of establishing the lack of genuine
disputes as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
B.

Analysis

The Executive Defendants—Wexford’s owners and/or executives—argue that
they merit summary judgment because they had no personal responsibility for any
decisions concerning Plaintiff’s medical care and never received any of the letters
that Plaintiff sent them about his medical conditions. [90] at 6. In support, they
offer their own declarations and a declaration from Joseph Ebbitt, Wexford’s
Director of Risk Management.

[91-2, 91-3, 91-4, 91-5].

Because the Executive

Defendants neither signed nor dated their own declarations, this Court cannot
consider those declarations as evidence. See 28 U.S.C. § 1746; Sheikh v. Grant Reg’l
Health Ctr., 769 F.3d 549, 551 (7th Cir. 2014).

Ebbitt’s signed and dated

declaration states that he reviews all inmate mail, and that any inmate mail sent to
the Executive Defendants “would have been routed to me for review and
dissemination to the appropriate medical staff.” [91-5] ¶¶ 3, 6.

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As the Executive Defendants note, courts have granted summary judgment to
high-level Wexford defendants based upon similar evidence. See, e.g., Wilder v.
Wexford Health Sources, Inc., No. 11-cv-4109, 2015 WL 2208440, at *12 (granting
summary judgment to Wexford administrators who “did not know about, approve,
condone, or turn a blind eye towards any of the misconduct”).

Here, however,

Plaintiff submitted a Rule 56(d) declaration explaining that he lacks facts to
respond to the summary judgment motion because the Executive Defendants moved
for summary judgment before any discovery took place. [100-1] at 2.
Rule 56(d) acts “as a safeguard against a premature grant of summary
judgment.” King v. Cooke, 26 F.3d 720, 726 (7th Cir. 1994). To invoke Rule 56(d)’s
protections, Plaintiff must explain why he cannot adequately respond to the
summary judgment motion without further discovery, and the evidence he seeks
must be relevant to his case. See OneBeacon Ins. Co. v. U.S. Foods, Inc., 304 F.R.D.
536, 539–40 (N.D. Ill. 2014); see also Sterk v. Redbox Automated Retail, LLC, 770
F.3d 618, 628 (7th Cir. 2014).
Here, Plaintiff satisfies those conditions.

His Rule 56(d) declaration

identifies nine areas of discovery that he needs to explore to respond to the motion,
including whether Ebbitt ever shares the contents of inmate letters with the
Executive Defendants and whether the Executive Defendants ever communicated
with other Wexford employees about Plaintiff. [100-1] at 3. Evidence on those
issues could create a genuine dispute of material fact as to whether the Executive
Defendants played a role in delaying or denying medical care to Plaintiff. Thus,

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based upon Plaintiff’s Rule 56(d) declaration, this Court denies the Executive
Defendants’ motion for summary judgment without prejudice. See OneBeacon, 304
F.R.D. at 541.
IV.

Plaintiff’s Motion for Entry of Default
Federal Rule of Civil Procedure 55(a) provides for entry of default against a

party who fails “to plead or otherwise defend.” Plaintiff moved for entry of default
against the Executive Defendants when they failed to answer or otherwise plead by
the April 28, 2017 deadline. [87] at 1. The Executive Defendants defended by
moving for summary judgment on May 2, 2017—the same day that Plaintiff moved
for entry of default. [90]. Given the relatively short delay in defending, and the fact
that the parties actively litigated the summary judgment motion, this Court denies
as moot Plaintiff’s motion for entry of default.

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V.

Conclusion
This Court denies Obaisi and Wexford’s motion to dismiss [69], grants

Warso’s motion to dismiss [72] without prejudice, denies Funk’s motion to dismiss
[85], denies the SCC Defendant’s motion for judgment on the pleadings [77], denies
the Executive Defendants’ motion for summary judgment [90] without prejudice,
and denies as moot Plaintiff’s motion for entry of default [87].
Because this is the first time this Court has dismissed any of Plaintiff’s
claims, Plaintiff may replead his claims against Warso if he can do so consistent
with his obligations under Federal Rule of Civil Procedure 11. The status hearing
set for March 8, 2018, at 9:45 a.m. in Courtroom 1203 stands.

Dated: March 6, 2018

Entered:
____________________________________
John Robert Blakey
United States District Judge

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