Zavala v. Damon et al
Filing
66
OPINION AND ORDER. The Court denies Wexford's motion to dismiss 42 . The Court orders Wexford to answer the second amended complaint by August 7, 2018. Signed by the Honorable Sara L. Ellis on 7/17/2018:Mailed notice(rj, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RODERICK ZAVALA (K-68842),
Plaintiff,
v.
MARK DAMON, GHALIAH OBAISI;
INDEPENDENT EXECUTOR OF THE
ESTATE OF SALEH OBAISI, RANDY
PFISTER, and WEXFORD HEALTH
SOURCES, INC.
Defendants.
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No. 17 C 3042
Judge Sara L. Ellis
OPINION AND ORDER
After injuring his hand while working in the Stateville Correctional Center (“Stateville”)
soap shop and allegedly failing to receive appropriate medical treatment for his injury, Plaintiff
Roderick Zavala brought this civil rights action against Defendants Mark Damon, Saleh Obaisi,1
Randy Pfister, and Wexford Health Sources, Inc. (“Wexford”) pursuant to 42 U.S.C. § 1983. In
addition to his claims against the individual Defendants, he pursues a Monell claim against
Wexford, alleging that Wexford’s cost-cutting policies prevented Zavala from receiving the
proper and recommended post-operative care, including occupational therapy and other followup appointments. Wexford seeks dismissal of Zavala’s Monell claim. Because Zavala pleads
sufficient facts to allow the Court to draw the reasonable inference that Wexford maintained a
widespread cost-cutting practice that deprived him of adequate medical care, the Court denies
Wexford’s motion to dismiss.
1
Pursuant to Federal Rule of Civil Procedure 25(a)(1), the Court substituted Ghaliah Obaisi, the executor
of Dr. Saleh Obaisi’s estate, in place of the deceased Defendant Dr. Saleh Obaisi. See Docs. 30, 35.
BACKGROUND2
At approximately 9:15 a.m. on November 1, 2016, Zavala sustained injuries to his left
hand while operating the soap machines in Stateville’s Industry Soap Shop, part of the Illinois
Correctional Industries (“ICI”) program. Zavala’s left hand was crushed and lacerated, with the
most significant injuries occurring on his ring finger. Damon, the ICI supervisor of the Industry
Soap Shop, did not know how to free Zavala’s hand, leaving Zavala to do it himself. Zavala then
went to Stateville’s health care unit (“HCU”), run by Wexford, where the medical staff
determined that his injuries were too severe to be treated within the HCU. Zavala was taken to
Loyola Medicine, where Dr. Norman Weinzweig performed surgery on Zavala’s left hand the
following day. Loyola discharged Zavala on November 3, with instructions to keep the wounds
clean and return for a follow-up appointment.
Dr. Obaisi, Stateville’s medical director at the time, authorized Zavala’s follow-up
appointment, which occurred with Dr. Weinzweig on November 7, 2016. Dr. Weinzweig
prescribed Zavala a Thermoplastic Splint and occupational therapy two-to-three times per week
by an occupational therapist or certified hand therapist, and instructed that Zavala’s stitches be
removed at his next follow-up appointment, in two weeks and after Zavala received therapy.
Zavala spoke with Dr. Obaisi regarding Dr. Weinzweig’s treatment prescriptions that day. As of
December 1, however, Zavala’s wounds had not been cleaned and he had not had his stitches
removed. Zavala had complained about this on several fronts to no avail. First, he filed a
grievance with the Illinois Department of Corrections (“IDOC”) on November 10 as an
emergency, complaining that he was being denied proper medical care due to his failure to
2
The facts in the background section are taken from Zavala’s second amended complaint and the exhibits
attached thereto and are presumed true for the purpose of resolving Wexford’s motion to dismiss. See
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v.
Exelon Corp., 495 F.3d 779, 782 (7th Cir. 2007).
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receive therapy for his hand, and he resubmitted the grievance on November 28 after being told
to resubmit the grievance in the normal fashion. He submitted a second grievance on December
1, complaining that the course of treatment Dr. Weinzweig had recommended was not being
followed. Zavala also wrote letters to Dr. Obaisi on November 14, 21, and 28, detailing his pain
and the need for therapy, to which Dr. Obaisi did not respond. Finally, Zavala also wrote to
Pfister, Stateville’s warden.
Then, on December 7, Dr. Obaisi authorized Zavala to see a certified hand therapist and
to receive a Thermoplastic Splint. Zavala received treatment from Katherine Southworth, a
certified occupational and hand therapist, on December 9 at Midwest Hand Care, Inc. Ms.
Southworth similarly prescribed a splint and therapy three times per week. But Zavala did not
return to Ms. Southworth, and instead next saw Dr. Obaisi on December 21. Zavala showed Dr.
Obaisi a wound on one of his left fingers that had not closed, but Dr. Obaisi only gave him
bandages to place over that wound. Zavala also expressed a need to receive further therapy, but
Dr. Obaisi replied, “I know you need therapy, but I can’t send you out.” Doc. 32 ¶ 43. Instead,
Dr. Obaisi arranged for Zavala to see Jose Becerra, a physical therapist at Stateville. Zavala saw
Becerra on December 27, 57 days after his surgery and 48 days after Dr. Weinzweig’s initial
recommendation for therapy, but Becerra refused to treat Zavala until he had his stitches
removed. Thereafter, Dr. Aguinaldo, who worked at Stateville’s HCU, removed the stitches and
cleaned Zavala’s wounds. Zavala had a follow-up appointment with Dr. Weinzweig on January
25, 2017. Dr. Weinzweig again recommended occupational therapy three-to-four times per week
and noted the presence of dense scarring at the site of the injury.
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LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (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.” Iqbal, 556 U.S. at 678.
ANALYSIS
Wexford argues that Zavala fails to allege sufficient facts to state a claim against it for
§ 1983 liability. A private company may be held liable under § 1983 for deliberate indifference
pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694,
98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). See Chatham v. Davis, 839 F.3d 679, 685 (7th Cir.
2016) (Monell liability “applies in § 1983 claims brought against private companies acting under
color of state law”). Liability may rest on (1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that, although not authorized by written law
or express policy, is so permanent and well-settled as to constitute a custom or usage with the
force of law; or (3) a constitutional injury caused by a person with final policy making authority.
McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). The policy or practice “must
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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) (citation omitted) (internal quotation
marks omitted). Additionally, Zavala must “plead[ ] factual content that allows the Court to
draw the reasonable inference that [Wexford] maintained a policy, custom or practice” that
contributed to the alleged violation. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011) (internal quotation marks omitted).
Wexford argues that Zavala uses only vague, conclusory language to support his
allegations of a widespread policy or practice. Recently, however, the Seventh Circuit has
reminded courts not to apply a “heightened pleading standard” to Monell claims. White v. City of
Chicago, 829 F.3d 837, 844 (7th Cir. 2016) (quoting Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S. Ct. 1160, 122 L. Ed. 2d 517
(1993)). Instead, Monell claims may proceed “even with conclusory allegations that a policy or
practice existed, so long as facts are pled that put the defendants on proper notice of the alleged
wrongdoing.” Armour v. Country Club Hills, No. 11 C 5029, 2014 WL 63850, at *6 (N.D. Ill.
Jan. 8, 2014) (quoting Riley v. County of Cook, 682 F. Supp. 2d 856, 861 (N.D. Ill. 2010)). Here,
Zavala has included sufficient factual allegations to put Wexford on notice of its alleged
wrongdoing. He contends that Dr. Obaisi continuously ignored Dr. Weinzweig’s and Ms.
Southworth’s prescribed course of treatment for Zavala, refusing to authorize necessary
occupational therapy, timely send him for follow-up appointments, and otherwise monitor his
recovery after surgery. Dr. Obaisi even went so far as to say, “I know you need therapy, but I
can’t send you out,” Doc. 32 ¶ 43, lending some credence to Zavala’s claim that Wexford
maintained a cost-cutting policy against outside treatment, with Dr. Obaisi instead referring
Zavala for physical therapy to a therapist employed at Stateville. See Simmons v. Godinez, No.
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16 C 4501, 2017 WL 3568408, at *4 (N.D. Ill. Aug. 16, 2017) (collecting cases where plaintiff
alleged that cost-cutting measures resulted in plaintiff receiving inadequate medical care, noting
that in Simmons, Wexford employees told plaintiff that they could not send him to see an outside
doctor because of the cost).
Wexford also argues that Zavala may not rely only on his personal experience with
Wexford’s medical care as the basis for his Monell claim. But again, the Seventh Circuit
recently indicated that at the motion to dismiss stage, a plaintiff may rely solely on his own
experience to state a Monell claim rather than having to plead examples of other individuals’
experiences. See White, 829 F.3d at 844 (noting that plaintiff “was not required to identify every
other or even one other individual who had been arrested pursuant to a warrant obtained through
the complained-of process”); Williams v. City of Chicago, No. 16-cv-8271, 2017 WL 3169065,
at *8–9 (N.D. Ill. July 26, 2017) (“Post-White courts analyzing Monell claims . . . have ‘scotched
motions to dismiss’ premised on arguments that the complaint does not contain allegations
beyond those relating to the plaintiff.” (collecting cases)). Therefore, Zavala’s claims that
Wexford’s cost-cutting policies, evidenced by its denial of the recommended post-operative
treatment and therapy in his case, suffices at the pleading stage to state a Monell claim against
Wexford. See Barwicks v. Dart, No. 14-cv-8791, 2016 WL 3418570, at *4 (N.D. Ill. June 22,
2016) (at summary judgment, a single incident cannot establish a Monell claim, but a plaintiff
“need only allege a pattern or practice, not put forth a full panoply of evidence from which a
reasonable factfinder could conclude such a pattern exists” at the pleading stage). This is
particularly true here, where Dr. Obaisi admitted to Zavala that he could not authorize sending
Zavala to an outside therapist, suggesting that Zavala’s experience was not an isolated incident
but rather a widespread Wexford practice. Discovery will uncover whether Zavala can establish
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or prove his Monell claim, but at the pleading stage, he only need state a plausible claim for
relief. See Shields v. City of Chicago, No. 17 C 6689, 2018 WL 1138553, at *4 (N.D. Ill. Mar. 2,
2018) (noting that the “City’s arguments that Plaintiff’s allegations do not ‘establish’ the
existence of a widespread policy are misplaced because at this stage of the proceedings, the
Court must determine whether Plaintiff has stated a plausible claim for relief, not that he has
‘established’ or ‘proven’ his claims”). The Court finds that Zavala has done so here, pleading
sufficient facts to provide Wexford with adequate notice of its alleged wrongdoing.3
CONCLUSION
For the foregoing reasons, the Court denies Wexford’s motion to dismiss [42]. The Court
orders Wexford to answer the second amended complaint by August 7, 2018.
Dated: July 17, 2018
______________________
SARA L. ELLIS
United States District Judge
3
Wexford also argues that Zavala cannot pursue a respondeat superior claim against it under § 1983. See
Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014) (“Respondeat superior liability does not
apply to private corporations under § 1983.”). In his response, Zavala affirms that he does not seek to
hold Wexford liable for Dr. Obaisi’s actions nor does he bring a claim for respondeat superior against
Wexford. Based on this representation, the Court does not address this issue further, with the only claim
proceeding against Wexford the Monell claim discussed above.
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