Johnson v. I.D.O.C. Northern- Receiving- Center
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 8/29/17.Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JEFF KORTE, Warden at Western Illinois
Correctional Center, WEXFORD HEALTH
SOURCES, INC., DAVID BARNES, and
DR. ARTHUR DAVIDA,
16 C 6988
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
While Plaintiff Henry Johnson was an inmate at the Illinois Department of Corrections
Northern Reception and Classification Center (NRC), he sustained injuries due to a fall. As a
result of the purported lack of treatment of his injuries at the NRC, as well as at the Western
Illinois Correctional Center (WICC), to which he was later transferred, Johnson has sued
Defendants under 42 U.S.C. ¶ 1983 for deliberate indifference to his serious medical needs in
violation of the Eighth Amendment. Specifically, Johnson has sued David Barnes, a correctional
officer at the NRC, Dr. Arthur Davida, a physician at the NRC, Jeff Korte, Warden of the WICC,
and Wexford Health Sources (Wexford), a company responsible for providing medical care to
Defendant Korte has moved to sever the claims against him and transfer venue to the
Central District of Illinois pursuant to Federal Rule of Civil Procedure (Rule) 21 and 28 U.S.C.
§ 1404(a). Defendant Wexford has moved to dismiss Johnson’s claims under Rule 12(b)(6). For
the following reasons, the Court grants Defendant Korte’s motion to sever and transfer.
Defendant Wexford’s motion to dismiss is also granted.
Factual Background 1
During all times relevant to this litigation, Johnson was an inmate in the custody of the
Illinois Department of Corrections. 3d Am. Compl. ¶ 1, ECF No. 1. When he resided at the
NRC, Johnson slipped and fell in the holding pen as he waited for his court appearance on June
22, 2015. Id. ¶¶ 9, 11. As a result, he suffered injuries to his side and back. Id. After the incident,
Defendant David Barnes prepared an Offender Injury Report. Id. ¶ 6.
After his court appearance, Johnson was taken to the health care unit at the NRC. Id.
¶¶ 15–17. According to Johnson, Dr. Arthur Davida took an X-ray and told him that there was a
bone protruding from his side that needed to be put back in place. Id. ¶ 17. Dr. Davida gave
Johnson Tylenol, which did nothing to alleviate the pain. Id. ¶ 18.
Johnson was then transferred to the Western Illinois Correctional Center (“WICC”). Id.
¶ 19. Johnson notified WICC staff members of his painful medical condition. Id. The staff
provided Johnson medication, but this too was ineffective at treating his pain. Id. ¶ 20. Johnson
requested further treatment for his pain and injury, but his requests were denied. Id. ¶ 21.
Several months after his transfer to the WICC, an unidentified doctor X-rayed Johnson’s
side and told him the protrusion was “fat gristle,” not bone. Id. ¶¶ 22–23. Johnson has not
received any treatment other than Tylenol, and he continues to suffer from serious pain, which
has significantly impeded his ability to sleep. Id. ¶¶ 24–26. While at the WICC, Johnson filed a
grievance based on lack of medical treatment, which was denied. Id. ¶ 27.
For purposes of ruling on Defendants’ motions to dismiss, the Court assumes “all well-pleaded
allegations are true and draw[s] all reasonable inferences in the light most favorable to the plaintiff.”
Manistee Apartments, LLC v. City of Chi., 844 F.3d 630, 633 (7th Cir. 2016).
Defendant Korte’s Motion to Sever
Defendant Korte first moves to sever Johnson’s claim against him. Mem. Supp. Mot.
Sever & Transfer at 3–4, ECF No.48. A district court has “broad discretion” in deciding
“whether to sever a claim under Rule 21.” Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016
(7th Cir. 2000). “As long as there is a discrete and separate claim, the district court may exercise
its discretion and sever it.” Id. “[D]iscrete and separate” means that “one claim must be capable
of resolution despite the outcome of the other claim.” Gaffney v. Riverboat Servs. of Ind., Inc.,
451 F.3d 424, 442 (7th Cir. 2006). In so doing, a court should consider severance “in the interest
of judicial economy and to avoid prejudice.” Vermillion v. Levenhagen, 604 F. App’x 508, 513
(7th Cir. 2015).
The claim against Defendant Korte arises from events at the WICC, while the claim
against Defendants Barnes and Davida arises from events at the NRC. 3d Am. Compl. ¶¶ 9, 19.
The parties disagree as to whether Johnson’s treatment at different IDOC facilities impacts the
motion for severance.
Johnson argues that the Defendants are joined together in a single claim for deliberate
indifference, albeit spanning multiple locations. Pl.’s Mem. Opp’n Mot. Sever & Transfer at 2,
ECF No. 60. Korte counters that the claim against him is discrete and separate in time, place,
and circumstances as compared to the claim against Defendants Barnes and Davida. Mem. Supp.
Mot. Sever &Transfer at 4.
Two recent cases issued by district judges in this Circuit provide helpful guidance to the
question posed here. In Young v. Obaisi, the plaintiff alleged that the wardens, medical directors,
and Wexford employees at two different prisons, as well as an outside orthopedic specialist, were
deliberately indifferent to his knee injury. No. 15-cv-2412, 2015 WL 8013437, at *2 (N.D. Ill.
Dec. 7, 2015). One of the wardens and Wexford moved to sever and transfer the claims against
them. Id. at *1. The Young court denied the motion because the same outside orthopedist served
both prisons. The Court emphasized that “[t]he key witness in the case–the outside orthopedist–
works here in Chicago; the doctor would have to testify twice (and at great inconvenience in the
Central District) if the claims were severed.” Id. at *5.
In Malik v. Rankin, the plaintiff alleged that medical service providers and prison
administrators at four different prisons were deliberately indifferent to his gastrointestinal and
ankle conditions. No. 15-cv-84, 2015 WL 1004019, at *3 (S.D. Ill. Mar. 4, 2015). The court
granted the defendants’ motion to sever because the claims were “capable of resolution
independently” in that the plaintiff’s treatment “involve[d] personnel at four different prisons.”
Id. at *6. The Malik court held that severance would not prejudice the plaintiff because, besides
his ailments, nothing linked his claims against one prison and its medical staff to his claims other
prisons and its medical staff. Id.
The circumstances in this case more closely resemble those in Malik than Young. In
contrast to Young, Johnson does not assert a claim against an outside medical professional, who
functions as a common denominator between his treatment at the two prisons. Rather, as in
Malik, the facts underlying Johnson’s claim against the Defendants at the NRC would not
overlap with the facts related to his claim against the Defendants at the WICC. Except for
Johnson, the witnesses will be different in each case.
Furthermore, as Korte correctly notes, Johnson seeks injunctive relief that Korte (and
WICC) provide him with appropriate medical treatment for his injury. 3d Am. Compl., Prayer
for Relief ¶ B; Mem. Supp. Mot. Sever & Transfer at 4. Such injunctive relief would be entirely
independent from the compensatory damages sought by Johnson against Defendants Barnes and
Davida, who are staffed at the NRC.
For these reasons, the Court concludes that the claims against Defendant Korte, Warden
of the WICC, are discrete and separate from the claims against Defendants Barnes and Davida.
Each claim is capable of being resolved independently of one another. The motion to sever
claims against Korte is therefore granted.
Defendant Korte’s Motion to Transfer
Defendant Korte also requests that the claims against him be transferred to the Central
District of Illinois. A district court may transfer a civil action “[f]or the convenience of parties
and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). Transfer is allowed if “(1) venue
is proper in both the transferor and transferee court; (2) transfer is for the convenience of the
parties and witnesses; and (3) transfer is in the interests of justice.” Coffey v. Van Doren Iron
Works, 796 F.2d 217, 219–20 (7th Cir. 1986). A court may use its discretion in considering the
convenience and fairness of transfer to each party. Research Automation, Inc. v. SchraderBridgeport Int’l, Inc., 626 F.3d 973, 977 (7th Cir. 2010).
The parties presume that venue is proper in both the Northern District and Central
Districts. Accordingly, the Court focuses on the convenience and the interest of justice factors.
With regard to convenience, courts consider five factors relating to the private interests of
the parties and witnesses: “(1) the plaintiff's choice of forum; (2) the situs of material events; (3)
the relative ease of access to sources of proof; (4) the convenience of the witnesses; and (5) the
convenience to the parties of litigating in the respective forums.” Body Sci. LLC v. Boston Sci.
Corp., 846 F. Supp. 2d 980, 992 (N.D. Ill. 2012) (citing Research Automaton, 626 F.3d at 978).
The first of these private-interest factors creates a strong presumption in favor of the plaintiff's
choice of forum if that forum is where the plaintiff resides. In re Nat’l Presto Indus., Inc., 347
F.3d 662, 664 (7th Cir. 2003) (internal quotation marks omitted) (“[U]nless the balance is
strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.”);
Taylor v. Midland Funding, LLC, 94 F. Supp. 3d 941, 945 (N.D. Ill. 2015). The party seeking to
transfer venue bears “the burden of showing that ‘the transferee forum is clearly more
convenient.’” Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989)
(quoting Coffey, 796 F.2d at 1293). “Where the balance of convenience is a close call, merely
shifting inconvenience from one party to another is not a sufficient basis for transfer.” Research
Automation, 626 F.3d at 979.
First, Johnson admits that a plaintiff’s choice of forum is not absolute, but he asks the
Court to respect his choice of litigating his claims here. Pl.’s Resp. Br. at 4. Korte argues that a
plaintiff’s choice of forum “has minimal value where none of the conduct complained of
occurred in the forum selected by the plaintiff.” See Chi., Rock Island & Pac. R.R. Co. v. Igoe,
220 F.2d 299, 304 (7th Cir. 1955). For reasons provided supra, Johnson’s claim against Korte
arises from alleged actions occurring entirely at WICC, so this factor weighs in favor of transfer.
Second, Johnson argues that his injury is continuous and therefore the situs of events
occurred at both the NRC and the WICC. Pl.’s Resp. Br. at 2. As discussed above, however, the
Court is not persuaded by this argument. The WICC is the only location where Johnson alleges
that jail staff exhibited deliberate indifference under Korte’s supervision. Korte is thus correct in
asserting that the Northern District has little connection to Johnson’s claim against Korte and that
the Central District is the situs of all the material events regarding that claim. See Mem. Supp.
Mot. Sever & Transfer at 6. This factor weighs heavily in favor of transfer.
Johnson does not address the “relative ease of access to sources of proof” factor.
According to Korte, Johnson’s medical records regarding his treatment at WICC are still located
at WICC, meaning ease of access to evidence also weighs in favor of transfer to the Central
District. Id. The location of documents, however, is given minimal consideration due to modern
digital imaging capabilities. Rabbit Tanaka Corp. USA v. Paradies Shops, Inc., 598 F. Supp. 2d
836, 840 (N.D. Ill. 2009). This factor thus weighs neither in favor of nor against transfer.
Johnson does not argue that any witnesses will be inconvenienced by a transfer. Korte,
on the other hand, asserts that all potential witnesses for Johnson’s claims arising from events at
WICC likely live in or near Mount Sterling, Illinois, favoring transfer. Mot. Sever and Transfer
at 6. “[T]he convenience of witnesses who are within a party’s control, such as a party’s
employees, is far less important than the convenience of non-party witnesses.” AL & PO Corp. v.
Am. Healthcare Capital, Inc., No. 14 C 1905, 2015 WL 738694, at *4 (N.D. Ill. Feb. 19, 2015)
Korte has not asserted that any non-party witnesses will be inconvenienced. As a result, this is a
neutral factor. On balance, however, the Court finds that the private interest factors weigh
heavily in favor of transfer.
Interest of Justice Factors
In determining whether the public interest favors transfer, courts weigh factors such as
“docket congestion and likely speed to trial in the transferor and potential transferee forums;
each court's relative familiarity with the relevant law; the respective desirability of resolving
controversies in each locale; and the relationship of each community to the controversy.”
Research Automation, 626 F.3d at 978 (citations omitted).
Korte notes that WICC is in the Central District, which has greater familiarity with
WICC’s policies because most claims arising from incidents at the WICC are handled there.
Mot. Sever and Transfer at 7. But the federal courts in the Northern and Central Districts are
equally familiar with the relevant law and are equally capable of applying that law to the facts of
the case. Accordingly, the Court finds that this factor is neutral, and the public interest analysis
ultimately hinges on the speed to trial, the desirability of resolving controversies in each locale,
and the relationship of each community to the controversy.
In this regard, Korte asserts that the Central District is able to provide a speedier trial than
the Northern District. Id. The Court agrees. According to Federal Court Management Statistics,
the time from filing to trial in the Central District takes about 35 months, while the Northern
District takes about 41 months. Federal Court Management Statistics, United States Courts
distprofile0331.2017.pdf. This factor favors transfer.
Furthermore, the desirability of resolving controversies in each locale and the relationship
of each community to the controversy also weigh in favor of transfer. The Central District of
Illinois has an important connection to, and interest in, resolving the controversy because the
WICC is located there and any verdict may affect WICC’s employees in that district. Although
Johnson argues that transferring the claims against Korte to the Central District will require
empaneling two juries, Pl.’s Resp. Br. at 4, the interests of the Central District in resolving
controversies arising out of prison facilities within its jurisdiction outweigh the added costs of
two trials. In toto, the public interest factors also bear heavily in favor of transfer.
Having considered the relevant factors, the Court concludes that overall, both the
convenience and interest of justice factors weigh decidedly in favor of transferring venue of the
claim against Korte to the Central District. Accordingly, the Court grants Defendant Korte’s
motion to transfer the claim against him to the Central District of Illinois.
After the claim against Defendant Korte is transferred, the Court instructs Johnson that he
must file an in forma pauperis application in the Central District of Illinois. See George v. Smith,
507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against different defendants belong in
different suits . . . to ensure that prisoners pay the required filing fees” under the Prison
Litigation Reform Act.). He may also file a motion for recruitment of counsel in the Central
District of Illinois if he wishes to be represented by an attorney.
Defendant Wexford’s Motion to Dismiss
Wexford has moved to dismiss Johnson’s complaint for failure to state a claim. Mem.
Law Supp. Mot. Dismiss at 2, ECF No. 34. To survive a motion to dismiss pursuant to Rule
12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). Further, “allegations in the form of legal conclusions are insufficient to survive a
Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir.
2012) (citing Iqbal, 556 U.S. at 678). The complaint must also contain a “statement of the claim
showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice
of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (internal
quotation marks omitted).
“[J]ust as a municipal corporation is not vicariously liable upon a theory of respondeat
superior for the constitutional torts of its employees, Monell v. Department of Social Services,
436 U.S. 658, 694 . . . (1978), a private corporation is not vicariously liable under § 1983 for its
employees’ deprivations of others’ civil rights.” Iskander v. Vill. of Forest Park, 690 F.2d 126,
128 (7th Cir. 1982). 2 Rather, a private corporation may only be liable under § 1983 if it caused
the plaintiff's constitutional injury through “(1) the enforcement of an express policy of the
[municipality]; (2) a widespread practice that is so permanent and well settled as to constitute a
custom or usage with the force of law, or (3) a person with final policymaking authority.”
Latuszkin v. City of Chi., 250 F.3d 502, 504 (7th Cir. 2001). The policy or practice “must be the
direct cause or moving force behind the constitutional violation.” Woodward v. Corr. Med.
Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004) (internal quotation marks omitted). Monell
claims in which allegations of a policy pertain exclusively to the plaintiff are typically dismissed.
See, e.g., Jones v. Feinerman, No. 09 C 03916, 2011 WL 4501405, at *6 (N.D. Ill. Sept. 28,
2011) (dismissing because allegations are limited only to the plaintiff, and “do not represent a
pattern of deliberate indifference”).
According to Wexford, Johnson fails to state a claim because his allegations do not
plausibly support the existence of a policy, practice, or action by a person with final
policymaking authority. Mem. Law Supp. Mot. Dismiss at 5. Johnson, in turn, asserts that an
unconstitutional policy may be inferred from his allegation of a “series of bad acts.” Pl.’s Resp.
Br. at 5, ECF No. 59.
Having reviewed the allegations in the third amended complaint and construing all
reasonable inferences in Johnson’s favor, the Court concludes that he has not stated a plausible
Monell claim against Wexford. Although Johnson alleges that Wexford employees provided
inadequate care for his medical condition, Johnson does not explain how any of his allegations
pertain to an express policy, a widespread practice, or any action by a final policymaker.
Johnson acknowledges that there is no respondeat superior liability under the current law for
§ 1983 claims against private corporations, but nonetheless argues for its application. Although the
Seventh Circuit has questioned this rule, see Shields v. Illinois Department of Corrections, 746 F.3d 782,
789–93 (7th Cir. 2014), Iskander remains the governing law.
Johnson concedes that there is “no evidence of communication or coordination” between the
different Wexford clinicians who treated him. Id. at 5–6. Accordingly, the Court dismisses
Johnson’s claims against Wexford at both the NRC and the WICC without prejudice.
For the reasons provided in this Memorandum Opinion and Order, Defendant Jeff
Korte’s motion to sever and transfer  is granted. The Clerk of Court is directed to sever the
deliberate indifference claim against Defendant Korte and any John and Jane Doe Defendants at
the WICC from this case and to transfer the claims to the United States District Court for the
Central District of Illinois forthwith. Plaintiff Johnson’s assigned counsel is hereby relieved of
the assignment with regard to the severed claims. Once the claim is transferred, Johnson must
file an in forma pauperis application in the Central District of Illinois. He may also file a motion
for appointment of counsel in the Central District of Illinois if he wishes to be represented by an
Defendant Wexford’s motion to dismiss  is granted.
Plaintiff’s claims against
Wexford are dismissed without prejudice.
Plaintiff must file a Fourth Amended Complaint that comports with the Court’s rulings
within fourteen days. If Plaintiff does not file a timely Fourth Amended Complaint, the Court
will dismiss this case with the understanding that Plaintiff no longer wishes to pursue this
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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