Sorrentino v. Wexford Health Source, et al.

Filing 38

MEMORANDUM Opinion and Order: For the foregoing reasons, Wexford's motion to dismiss 25 , is granted and Sorrentino's claim against Wexford is dismissed without prejudice. Should Sorrentino, consistent with the strictures of Federal Rule of Civil Procedure 11, believe he can cure the deficiencies the Court has described in this opinion, he may file a motion for leave to file an amended complaint by July 12, 2017. Wexford Health Source terminated. Signed by the Honorable Thomas M. Durkin on 6/12/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH SORRENTINO,
Plaintiff,

No. 16 C 11064

v.

Judge Thomas M. Durkin

WEXFORD HEALTH SOURCES, INC.; DR.
SALEH OBAISI; DR. ARTHUR FUNK;
WARDEN RANDY PFISTER,
Defendants.
MEMORANDUM OPINION AND ORDER
Joseph Sorrentino, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”) at Stateville Correctional Center, alleges that Stateville staff
and medical service providers were deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment. See R. 23. Specifically, Sorrentino has
sued Randy Pfister, Statesville’s warden at all relevant times; Wexford Health
Sources, Inc., Statesville’s medical services provider; and doctors employed by
Wexford, namely Dr. Saleh Obaisi and Dr. Arthur Funk. See id. Wexford has moved
to dismiss Sorrentino’s claim for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). See R. 25. For the following reasons, Wexford’s motion is
granted.
Legal Standard
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th

Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
Background
Sorrentino alleges that since early 2015, he has experienced severe pain in
his kidney area and blood in his urine. R. 23 ¶¶ 15-16. In February 2015, Sorrentino
saw a doctor from the University of Illinois-Chicago. Id. ¶ 18. Sorrentino alleges
that the “doctor from UIC informed [him] that the issue of blood in his urine must
be addressed by . . . Dr. Obaisi.” Id.

2

Sorrentino alleges that there was no follow-up on the UIC doctor’s diagnosis
for “several months.” Id. ¶ 18. Sorrentino and his sister made “additional requests”
and “numerous communications” attempting to have Sorrentino’s condition
addressed. Id. ¶¶ 18-19. Eventually in response to these requests, IDOC Medical
Director Dr. Louis Shicker directed Dr. Funk to examine Sorrentino. Id. ¶ 19.
Sorrentino saw Dr. Funk in June 2015. Id. ¶ 19. Sorrentino alleges that Dr. Funk
acknowledged that Sorrentino likely suffered from a kidney stone or liver damage
but did not order further testing or treatment. Id.
Despite his allegation that Dr. Funk did not order additional tests or
treatment, Sorrentino also alleges that he received a further examination the next
month in July 2015 when he was sent to a specialist at “Advanced Urology.” Id. ¶
25. The specialist diagnosed Sorrentino with an enlarged prostate and bleeding, and
recommended a CT scan. Id. Sorrentino did not receive this CT scan until November
2015. Id.
In addition to these examinations, Sorrentino also saw Dr. Obaisi “many
times in 2015 and 2016.” Id. ¶ 20. In December 2015, Dr. Obaisi informed
Sorrentino that the CT scan taken the previous month showed an obstructed kidney
stone. Id. ¶ 26. Sorrentino alleges that Dr. Obaisi failed to order any immediate
treatment. Id. ¶ 27.
Despite the CT scan, Dr. Obaisi’s diagnosis, and “several additional urgent
requests for medical treatment,” Sorrentino did not receive any additional

3

treatment until April 2016 when he was given a second CT scan. Id. ¶¶ 27-28. That
scan reconfirmed the presence of a kidney stone. Id. ¶ 28.
It wasn’t until July 2016 that Sorrentino had a procedure to remove the
stone. Id. ¶ 29. Sorrentino alleges that he was told that the stone was “severely
impacted,” meaning that the stone “was present for so long that it had embedded in
the kidney causing scar tissue to form over the stone,” such that a “temporary stent”
was necessary. Id. ¶ 29. Sorrentino also alleges that the stent was supposed to be
removed within two or three weeks, but was not removed until more than five
weeks after the procedure. Id. ¶ 30. Despite the stone’s removal, Sorrentino alleges
that he continues to experience both kidney pain and blood in his urine. Id. ¶ 31. He
also alleges that ongoing requests for treatment of the kidney pain and urine in the
blood have been ignored. Id. ¶ 31.
With respect to Wexford specifically, Sorrentino alleges that “Wexford was
aware of Mr. Sorrentino’s serious medical conditions through the knowledge, acts,
and omissions of Wexford’s authorized agents and employees acting within the
scope of their employment.” Id. ¶ 23. Sorrentino also alleges that “Wexford, through
the acts and omissions of its authorized agents and employees within the scope of
their employment, failed to ensure that adequate medical care was provided to Mr.
Sorrentino.” Id. ¶ 10.
Analysis
Sorrentino argues that the 18 month delay from his initial diagnosis in
February 2015 to the procedure to remove the kidney stone in July 2016, “involves

4

so many instances of delayed treatment that it is sufficient to establish . . . . a
pattern of delaying necessary medical treatment” by Wexford. R. 32 at 1, 4. “A local
governing body may be liable for monetary damages under § 1983 if the
unconstitutional act complained of is caused by: (1) an official policy adopted and
promulgated by its officers; (2) a governmental practice or custom that, although
not officially authorized, is widespread and well settled; or (3) an official with final
policy-making authority.” Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303
(7th Cir. 2010) (citing Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658,
690 (1978)). Like municipalities, “[p]rivate corporations acting under color of state
law may [also] . . . be held liable for injuries resulting from their policies and
practices.” Rice v. Correctional Med. Servs. of Ill., Inc., 675 F.3d 650, 675 (7th Cir.
2012); see also Shields v. Ill. Dep’t of Corrections, 746 F.3d 782, 789 (7th Cir. 2014)
(“Most defendants under § 1983 are public employees, but private companies and
their employees can also act under color of state law and thus can be sued under §
1983.”). To claim Monell liability, a plaintiff must allege “that the [entity]
policymakers were deliberately indifferent as to [the] known or obvious
consequences.” Thomas, 604 F.3d at 303. “In other words, they must have been
aware of the risk they created by the custom or practice and must have failed to
take appropriate steps to protect the plaintiff.” Id.
The Seventh Circuit has made clear that, absent an express policy, Monell
liability is only appropriate where the “plaintiff [can] introduce evidence
demonstrating that the unlawful practice was so pervasive that acquiescence on the

5

part of policymakers was apparent and amounted to a policy decision.” Phelan v.
Cook Cnty., 463 F.3d 773, 790 (7th Cir. 2006) (the evidence must be such that the
plaintiff can “weave . . . separate incidents together into a cognizable policy”). For
an entity to be liable in this manner, the causal relationship between the policy or
practice and the harm must be such that the policy was the “moving force behind
the constitutional violation.” City of Canton v. Harris, 489 U.S. 378, 389 (1989). To
successfully plead a Monell claim on a “custom theory, the plaintiff must
demonstrate that the practice is widespread and that the specific violations
complained of were not isolated incidents.” Gill v. City of Milwaukee, 850 F.3d 335,
344 (7th Cir. 2017). While “evidence of a single violation of federal rights can trigger
municipal liability if the violation was a highly predictable consequence of the
municipality’s failure to act,” Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d
917, 929 (7th Cir. 2004), generally a plaintiff must “provide examples of [other
individuals in the defendant’s position of state authority] taking actions similar to
those complained of,” or “plausibly allege that such examples exist.” Gill, 850 F.3d
at 344; see also Thomas, 604 F.3d at 303 (“[T]here is no clear consensus as to how
frequently [certain] conduct must occur to impose Monell liability [under the custom
and practice theory], except that it must be more than one instance, or even three.”)
(internal citations omitted). In most circumstances, the “specific actions of the
[defendants] in [the plaintiff’s] case alone, without more, cannot sustain a Monell
claim based on the theory of a de facto policy.” Gill, 850 F.3d at 344.

6

In this case, Sorrentino has not made any allegations about Wexford’s actions
with respect to anyone but himself. Since he does not allege instances of delayed
medical care beyond his own, Sorrentino’s allegations regarding his own experience
must plausibly demonstrate that other inmates have also received delayed medical
care. Sorrentino’s argument in this regard is that his case was addressed by three
Wexford doctors (Obaisi, Shicker, and Funk), and all three contributed to the delay
in his care. Sorrentino contends that since his case was addressed by three different
doctors, and each participated in the delay, the delay cannot simply be the product
of individual failures, but must be result of a Wexford custom to provide untimely
medical care.
But although Sorrentino speculates that Wexford caused the delay in his
medical care, he points to no facts that support this speculation. Sorrentino has only
alleged that he was the repeated victim of dilatory conduct by his doctors. He has
not made any allegation that makes a causal connection between the doctors’
conduct and Wexford, other than the fact that all three doctors work for Wexford.
But this of course amounts to a respondeat superior theory of liability which is not
cognizable under Section 1983.
Notably, the Seventh Circuit has held that a prisoner’s assertion of four
separate incidents he alone experienced did not meet the test of a wide ranging
unconstitutional practice. See Grieveson v. Anderson, 538 F.3d 763, 774-75 (7th Cir.
2008). In Grieveson, an inmate alleged that the prison had a policy of dispensing full
bottles of medication, putting inmates at risk of theft. The inmate alleged that this

7

practice occurred to him on four separate occasions. Id. at 773. The Seventh Circuit
held that this series of events alone was not enough to infer that the practice was
widespread or that it was the result of a policy choice. Id. at 774. Even further, the
plaintiff in Grieveson also alleged that the practice happened to other inmates, but
the Seventh Circuit found “[o]ne broad, vague statement about an occurrence
affecting other inmates in a detention facility does not support the inference of a
widespread custom.” Id. Again, regardless of number, the primary problem with
Sorrentino’s allegation is that there is no basis to infer that Wexford was the
moving force behind the delays in his medical treatment, as opposed to the decisions
of the individual doctors treating him specifically.
Conclusion
For the foregoing reasons, Wexford’s motion to dismiss, R. 25, is granted, and
Sorrentino’s claim against Wexford is dismissed without prejudice. Should
Sorrentino, consistent with the strictures of Federal Rule of Civil Procedure 11,
believe he can cure the deficiencies the Court has described in this opinion, he may
file a motion for a leave to file an amended complaint by July 12, 2017. Any such
motion should attach the proposed amended complaint as an exhibit, and should be
supported by a brief of no more than five pages explaining how the amended
complaint cures the deficiencies described in this opinion. If Sorrentino files such a
motion, Wexford should not respond unless the Court so orders. If Sorrentino does
not file such a motion by July 12, 2017, the dismissal of Sorrentino’s claim against
Wexford will be with prejudice.

8

ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: June 12, 2017

9