Schlueter v. Barnhart et al

Filing 107

ORDER: Defendant Avitall's motion to dismiss 69 is granted. Defendant Shicker's motion to dismiss 75 is granted. All claims against these defendants are dismissed, and they are terminated from this action. [see STATEMENT] Signed by the Honorable Frederick J. Kapala on 1/23/2017. Mailed notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Richard Schlueter,
Plaintiff,
v.
Chris Barnhart, et al.,
Defendants.

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Case No: 15 C 50024

Judge Frederick J. Kapala

ORDER
Defendant Avitall’s motion to dismiss [69] is granted. Defendant Shicker’s motion to dismiss [75]
is granted. All claims against these defendants are dismissed, and they are terminated from this
action.
STATEMENT
In his third amended complaint, plaintiff raises a number of claims pursuant to 42 U.S.C.
§ 1983 based on alleged deliberate indifference to his serious medical needs against various medical
personnel and prison officials, including Dr. Boaz Avitall, a cardiologist working at the University
of Illinois-Chicago Medical Center (“UIC”), and Dr. Louis Shicker, the Chief Medical Director for
the Illinois Department of Corrections (“IDOC”). These defendants have each filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, both
motions to dismiss are granted.
I. BACKGROUND
According to the allegations in the complaint, which the court accepts as true for purposes
of this order, plaintiff has been incarcerated at the Dixon Correctional Center (“Dixon”) since 2003.
Prior to his incarceration, plaintiff was diagnosed with a cardiac condition known as bradycardia,
which causes plaintiff to have a slow heart rate of less than 60 beats per minute. This diagnosis was
confirmed by unnamed physicians at UIC in February 2007 and June 2010, at which time no
additional abnormalities were detected and plaintiff was informed that there was no need for him to
have a pacemaker.
Between June 2010 and March 2011, plaintiff complained to the medical personnel at Dixon
about episodes of dizziness, fainting, and headaches. On March 14, 2011, plaintiff was scheduled
to be seen by Dr. Imhotep Carter, another defendant in this case who was the Medical Director at
Dixon during the relevant time period, but Dr. Carter refused to perform a physical examination of
plaintiff at that time. Approximately eleven days later, however, with no recent examination or
testing, Dr. Carter prescribed Propranolol for plaintiff, which is a beta-blocker primarily intended

for patients with abnormally fast heart rates. After taking this prescribed medication, plaintiff’s
bradycardia condition significantly worsened. Over the next several months, despite plaintiff’s
complaints, various medical personnel at Dixon prescribed and/or provided plaintiff with various
beta-blockers, including Propanolol, Metoprolol Tartrate, and Nadolol, all of which are cardiotoxic
to someone who has bradycardia and caused plaintiff’s condition to deteriorate.
On October 26, 2012, plaintiff was taken to UIC to see a cardiologist and was subsequently
admitted to the hospital for approximately seven days after his vital signs showed a dangerously low
heart rate of 28 beats per minute. Plaintiff was not given any beta blockers while at UIC, and within
48 hours his heart rate returned to an acceptable level of 45-50 beats per minute. During this
admission, Dr. Avitall advised plaintiff that he did not need a pacemaker. Upon his release from
UIC, plaintiff was instructed to wear a “Holter monitor” for 30 days in order to provide an accurate
picture of his heart functioning. While he was on the Holter monitor, the medical personnel at Dixon
continued to give plaintiff his prescribed beta-blocker medications.
On January 18, 2013, plaintiff returned to UIC and was seen by Dr. Avitall, who indicated
that the results from the Holter monitor showed that plaintiff needed surgery to insert a pacemaker.
According to plaintiff, at that time, Dr. Avitall “was, or should have been, aware of [plaintiff’s]
history of having been on beta-blocker medications, including during the time he was going through
the Holter monitor test.” On February 5, 2013, plaintiff returned to UIC where Dr. Avitall performed
the surgery to install the pacemaker. On February 7, 2013, plaintiff was back at Dixon and was seen
by another defendant, Dr. Kevin Smith, who informed plaintiff that he should not be taking Nadolol
since it has the effect of lowering one’s heartbeat and immediately ordered the medication to be
stopped. Dr. Smith further indicated that the results from the Holtor monitor test would have been
affected by the fact that plaintiff was receiving a beta blocker at that time.
According to plaintiff, Dr. Avitall and others “had a duty to provide appropriate medical
evaluation and treatment to [plaintiff] at all times . . . consistent with the standards of practice for
a physician,” as well as “a duty to be familiar with their patient’s applicable medical history and
medical conditions.” Plaintiff further alleges that, as a result of the beta-blocker medications he was
taking, the results of the Holter monitor “were improperly altered and were not a proper basis on
which to make a decision to insert a pacemaker device.” As such, plaintiff claims that Dr. Avitall
and others were deliberately indifferent to his serious medical needs by, among other things, their
“failure to be fully aware of [plaintiff’s] health history and cardiac conditions.”
II. ANALYSIS
Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The allegations in the
complaint must “give the defendant fair notice of what the claim is and the grounds upon which it
rests,” and must “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (alterations omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id.

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A. Defendant Avitall’s Motion to Dismiss
In his motion to dismiss, Dr. Avitall argues, among other things, that plaintiff’s allegations
against him fail to state a claim because they do not rise to the level of deliberate indifference. A
prison official violates the Eighth Amendment if he is deliberately indifferent to the serious medical
needs of a prisoner. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A deliberate indifference
claim requires both an objectively serious risk of harm and a subjectively culpable state of mind.”
Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007) (citing Farmer v. Brennan, 511 U.S. 825, 834
(1994)). In this case, Dr. Avitall does not dispute that plaintiff’s allegations concern a serious
medical condition, and therefore the focus of his argument is on the subjective component.
To satisfy the subjective element of a deliberate indifference claim, a plaintiff must allege
that “the official [had] subjective knowledge of the risk to the inmate’s health, and the official . . .
disregard[ed] that risk.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). “[D]eliberate
indifference entails something more than mere negligence.” Farmer, 511 U.S. at 835. Thus,
allegations that establish medical malpractice are insufficient to state a claim for deliberate
indifference under § 1983. See Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (“[A]dmitted
medical malpractice does not automatically give rise to a constitutional violation.”). “Even objective
recklessness—failing to act in the face of an unjustifiably high risk that is so obvious that it should
be known—is insufficient to make out a claim.” Id. at 728 (citing Farmer, 511 U.S. at 836-38).
Instead, “a plaintiff must provide evidence that an official actually knew of and disregarded a
substantial risk of harm.” Id. (citing Farmer, 511 U.S. at 837); see also Hare v. City of Corinth,
Miss., 74 F.3d 633, 650 (5th Cir. 1996) (“[T]he correct legal standard is not whether the jail officers
‘knew or should have known,’ but whether they had gained actual knowledge of the substantial
risk . . . and responded with deliberate indifference.”).
In this case, the allegations in plaintiff’s third amended complaint are insufficient to establish
anything beyond negligence or medical malpractice on the part of Dr. Avitall. Indeed, plaintiff
makes numerous allegations concerning Dr. Avitall’s “duty to provide appropriate medical
evaluation and treatment . . . consistent with the standards of practice for a physician,” as well as his
“duty to be familiar with” plaintiff’s applicable medical history. These are classic allegations of
negligence, and while the court expresses no opinion on whether that type of claim might have merit,
it is clear that these allegations are insufficient to show that Dr. Avitall had actual knowledge of a
substantial risk of harm to plaintiff, or that he chose to disregard that risk and insert a pacemaker.
In fact, plaintiff specifically alleged Dr. Avitall’s lack of actual knowledge when he asserted in the
complaint that Dr. Avitall “fail[ed] to be fully aware of [plaintiff’s] health history and cardiac
conditions.”1 Accordingly, the court concludes that the allegations in Count I of the third amended
1

The closest plaintiff came to alleging actual knowledge occurred earlier in the complaint, where plaintiff stated,
in a somewhat vague and conclusory manner, that Dr. Avitall “was, or should have been, aware of [plaintiff’s] history
of having been on beta-blocker medications, including during the time he was going through the Holter monitor test.”
However, this type of allegation is insufficient to make out a claim for deliberate indifference. See Petties, 836 F.3d at
728 (“[O]bjective recklessness—failing to act in the face of an unjustifiably high risk that is so obvious that it should
be known—is insufficient to make out a claim.”); Hare, 74 F.3d at 650 (“[T]he correct legal standard is not whether the
jail officers ‘knew or should have known,’ but whether they had gained actual knowledge of the substantial risk . . . and
responded with deliberate indifference.”). By pleading in that manner, it is clear that plaintiff was unable to allege,

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complaint do not state a claim for deliberate indifference in violation of the Eighth Amendment.
In his response to the motion to dismiss, plaintiff relies primarily on Chance v. Armstrong,
a case from nearly twenty years ago out of the Second Circuit, for the proposition that certain
instances of medical malpractice may rise to the level of deliberate indifference when the doctor
evinces a conscious disregard of a substantial risk of serious harm. 143 F.3d 698, 703 (2d Cir.
1998). Despite the somewhat unusual citation, the court fails to see how this case even helps
plaintiff. A conscious disregard of a substantial risk of harm still requires that the doctor had actual
knowledge of the risk and chose to ignore it. See id. (“[T]he deliberate indifference standard
requires the plaintiff to prove that the prison official knew of and disregarded the plaintiff’s serious
medical needs.” (citing Farmer, 511 U.S. at 837)). Indeed, in Chance, the Court gave as an example
to illustrate the point a doctor who “consciously chooses an easier and less efficacious treatment
plan.” Id. In addition, the allegations in Chance are readily distinguishable from those in the instant
case. The plaintiff in Chance alleged that the defendant doctors recommended a certain treatment
“not on the basis of their medical views, but because of monetary incentives.” Id. at 704. The Court
concluded that “[t]his allegation of ulterior motives, if proven true, would show that the defendants
had a culpable state of mind and that their choice of treatment was intentionally wrong and did not
derive from sound medical judgment.” Id. In contrast, in this case, there is no allegation that the
decision by Dr. Avitall to insert a pacemaker was based on some ulterior motive, and in fact, it
would have been much more cost effective to simply take plaintiff off his beta-blocker medications
rather than perform this surgical procedure. Accordingly, plaintiff’s reliance on Chance does not
alter this court’s conclusion that plaintiff’s allegations against Dr. Avitall do not rise to the level of
deliberate indifference.
As a final matter, Dr. Avitall also moves to dismiss Counts II and III because there are no
allegations against him in those counts. Notwithstanding plaintiff’s brief argument in response, the
court agrees with Dr. Avitall and concludes that neither count states a claim against Dr. Avitall. In
Count II, plaintiff alleges deliberate indifference to his future medical needs, including a lack of
follow-up care for his pacemaker. However, there are no allegations in the complaint that Dr. Avitall
is responsible for this alleged lack of treatment or that he ever refused to treat plaintiff despite
knowledge that plaintiff was in need of further medical care. In Count III, plaintiff alleges what
appears to be a Monell claim against defendant Wexford Health Sources, Inc., and there are no
allegations specifically directed against Dr. Avitall or any factual allegations to suggest that he has
anything to do with Wexford’s policy decisions. Accordingly, both Counts II and III are dismissed
as to Dr. Avitall.
Based on all of these reasons, Dr. Avitall’s motion to dismiss is granted.2 All claims against
Dr. Avitall are dismissed, and he is terminated from this action.

consistent with his Rule 11 obligations, that Dr. Avitall had actual knowledge of plaintiff’s medication history at the time
he decided to insert the pacemaker.
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The court need not address Dr. Avitall’s alternative arguments that the claims against him should be dismissed
based on either the statute of limitations or plaintiff’s alleged failure to comply with Rule 10(b) and expresses no opinion
on them.

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B. Defendant Shicker’s Motion to Dismiss
In his motion to dismiss, Dr. Shicker argues that plaintiff has failed to state a claim against
him because there are no allegations of sufficient personal involvement to support a claim under
§ 1983. “It is well established that for constitutional violations under § 1983 a government official
is only liable for his or her own misconduct.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015)
(alterations omitted); see also Pepper v. Vill. of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (“[T]o
be liable under § 1983, an individual defendant must have caused or participated in a constitutional
deprivation.”); Palmer v. Marion Cty., 327 F.3d 588, 594 (7th Cir. 2003) (“§ 1983 lawsuits against
individuals require personal involvement in the alleged constitutional deprivation to support a viable
claim.”). Therefore, in order to state a claim against a prison official acting in a supervisory role,
the plaintiff “may not rely on a theory of respondeat superior and must instead allege that the
defendant, through his or her own conduct, has violated the Constitution.” Perez, 792 F.3d at 781.
In addition, “supervisors can violate the Constitution themselves if they know about the
unconstitutional conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what
they might see.” T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (alteration omitted).
Here, there are no allegations in plaintiff’s third amended complaint that make it plausible
that Dr. Shicker was personally involved in the medical care provided to plaintiff. See Palmer, 327
F.3d at 594. Moreover, there are no allegations to support a claim that he was aware of the
unconstitutional conduct of others and helped to facilitate it, approve it, condone it, or that he turned
a blind eye towards that conduct. See Grindle, 599 F.3d at 588. Accordingly, without these
allegations, plaintiff is unable to state a claim for deliberate indifference against Dr. Shicker.
In his response, plaintiff asserts that, by allowing certain “policies to persist,” Dr. Shicker
acted with a conscious disregard of a substantial risk of serious harm and he attempts to equate these
allegations with the allegations against Dr. Shicker in Heard v. Tilden, 809 F.3d 974 (7th Cir. 2016),
which were found to be sufficient to state a claim. These arguments do not alter the court’s
conclusion. Plaintiff alleged in the third amended complaint that Dr. Shicker failed to ensure that
there were policies and procedures in place at IDOC that would have prevented plaintiff from being
prescribed beta-blocker medications when those medications were contra-indicated for him. Even
assuming for the sake of argument that this lack of policies and procedures was a cause of plaintiff’s
injury, the absence of policies does not establish the necessary personal involvement by Dr. Shicker
in order to hold him liable for a knowing or conscious disregard of a serious risk of harm to plaintiff.
Furthermore, a review of the allegations in Heard demonstrates why that case is readily
distinguishable from the instant case. In Heard, the plaintiff specifically alleged that Dr. Shicker
“did not act to stop the delay [in treatment for a hernia] despite his actual knowledge that the delay
was causing Heard to suffer pain.” Id. at 980-81. The Seventh Circuit held that the “allegation that
Dr. Shicker was involved directly in the choice to stall necessary surgery and prolong Heard’s pain
is enough to state a claim.” Id. at 981. Thus, unlike this case, there were allegations in Heard which,
if proven true, would have shown that Dr. Shicker had actual knowledge of a serious medical need
and was deliberately indifferent to that need. In this case, there are no allegations to suggest that Dr.
Shicker had any involvement whatsoever in plaintiff’s treatment or that he even knew about the
treatment plaintiff was receiving.

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Therefore, the court concludes that plaintiff has failed to state a claim for relief against Dr.
Shicker in Counts I and II of the third amended complaint. As for Count III, as noted earlier, this
claim seems to be based solely on the alleged policies and procedures of Wexford, and there are no
allegations to plausibly suggest that Dr. Shicker had any direct involvement in creating those alleged
policies, or that he in any has facilitated, approved, condoned, or turned a blind eye toward those
policies. Accordingly, Count III also fails to state a claim against Dr. Shicker.
Based on all of these reasons, Dr. Shicker’s motion to dismiss is granted.3 All claims against
Dr. Shicker are dismissed, and he is terminated from this action.
III. CONCLUSION
Based on the foregoing, the pending motions to dismiss filed by Dr. Avitall and Dr. Shicker
are granted.

Date: 1/23/2017

ENTER:
_________________________
FREDERICK J. KAPALA
District Judge

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The court need not address Dr. Shicker’s alternative argument that plaintiff’s complaint fails to comply with
Rules 8 and 10 of the Federal Rules of Civil procedure and expresses no opinion on that issue.

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