Almond v. Wexford Health Source, Inc. et al

Filing 97

ORDER: Dr. Shicker's motion to dismiss 77 is granted. Dr. Shicker is terminated from this case. [see STATEMENT] Signed by the Honorable Frederick J. Kapala on 6/22/2017. Mailed notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Charles Almond,
Plaintiff,
v.
Wexford Health Source, Inc., et al.,
Defendants.

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Case No: 15 C 50291

Judge Frederick J. Kapala

ORDER
Dr. Shicker’s motion to dismiss [77] is granted. Dr. Shicker is terminated from this case.
STATEMENT
Plaintiff, Charles Almond, an inmate of the Illinois Department of Corrections (“IDOC”)
housed in the Dixon Correctional Center (“DCC”), brought this suit against defendants, Wexford
Health Sources, Inc. (“Wexford”); Jill Wahl, M.D.; Bessie Dominguez, M.D.; Hector Garcia, M.D.;
Louis Shicker, M.D.; and Assistant Warden Charles Fasano. Almond alleges a violation of the
Eighth Amendment pursuant to 42 U.S.C. § 1983, claiming that a wide-spread medical practice
allowed for deliberate indifference to his medical needs, causing him permanent disability. Before
the court is Dr. Shicker’s Rule 12(b)(6) motion to dismiss Almond’s claim against him on the
grounds that he has failed to state a claim upon which relief may be granted.
I. BACKGROUND1
On or about May 16, 2013, Almond was injured while running in the prison yard. At the
time the injury occurred, Dr. Shicker was the IDOC Medical Director. This job entailed overseeing
the medical services for all correctional centers, including the DCC. On May 18, 2013, Almond
reported the injury of his right knee and leg to a staff nurse. This nurse was an employee of
Wexford. She examined him and provided him with crutches, pain medication, and an ace wrap to
help manage the pain. Almond continued to complain of pain on May 24, May 31, and June 17,
2013.
On June 21, 2013, Dr. Dominguez examined Almond after he complained of severe pain and
claimed that he had fallen out of his bunk due to the condition. Dr. Dominguez gave him a permit
for a lower bunk, gym restriction, and pain medication. Almond visited Dr. Dominguez once again
on July 15, 2013, and complained that the treatment was ineffective. Dr. Dominguez decided to keep
the same treatment plan and continued to recommend it at subsequent visits.
On September 12, 2013, Almond was examined by Dr. Wahl, who suspected that Almond
suffered from a quadricep tear to the right knee. Dr. Wahl recommended that Almond receive a
consult from an orthopedic physician. On September 25, 2013, after a medical consultation, Wexford
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The facts are derived from the second amended complaint and are presumed to be true for purposes of the
instant motion. See Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016).

decided to deny referring Almond to an orthopedic physician and instead to continue treatment
onsite. During this time, Almond suffered an injury to his right hip and elbow due to the previous
injury to his right knee.
On December 10, 2013, Wexford authorized an offsite consultation with an orthopedic
specialist. Almond was transported to an orthopedic specialist at the University of Illinois Chicago
Medical Center, on March 7, 2014. The specialist diagnosed a quadricep tendon tear in the right
knee. He recommended an MRI to examine the injury further and also suggested that Almond be
examined by an orthopedic surgeon. The MRI revealed a partial rupture of the quadriceps tendon
and an old healed avulsion fracture and prior tear of the medial meniscus.
On October 7, 2014, Almond was sent back to the orthopedic specialist, who noted that he
was examining Almond “by mistake,” and once again recommended that Almond see a surgeon.
On January 12, 2015, Almond saw an orthopedic surgeon who recommended surgery on the right
knee. On March 3, 2015, Almond received the surgery on his right knee, but alleges that he is
permanently disabled due to the delay in diagnosis.
In his second amended complaint, Almond alleges that Dr. Shicker and Wexford had notice
of a wide-spread practice by medical personnel at the DCC, whereby inmates were routinely denied
access to proper medical attention. Almond claims that Dr. Shicker and Wexford were deliberately
indifferent to this practice by failing to properly discipline prior instances of medical neglect by their
agents, which encouraged future abuse of the medical rights of inmates and caused the
unconstitutional treatment resulting in his injury.
Before the court is Dr. Shicker’s motion to dismiss Almond’s second amended complaint.
Dr. Shicker argues that Almond’s second amended complaint should be dismissed for failure to state
a plausible claim because he does not allege that Dr. Shicker was personally involved in the alleged
deliberate indifference to his medical needs. Almond, on the other hand, argues that the second
amended complaint states a valid claim because Dr. Shicker should have had notice of an
unconstitutional policy or practice and did nothing to try to prevent it.
II. ANALYSIS
When deciding a defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), the court accepts all of the well-pleaded factual allegations of the complaint as true, and
draws all reasonable inferences in favor of the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). To state a claim under the Federal Rules, a complaint need only contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“[D]etailed factual allegations” are not required, but the plaintiff must allege facts that, when
“accepted as true . . . state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
In order to state an Eighth Amendment, deliberate indifference claim, Almond must allege
that Dr. Shicker was personally responsible for the deprivation of his constitutional right. Gentry
v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). This component cannot be satisfied by merely
relying on the respondeat superior theory, claiming liability due to the defendant’s supervisory role.
Arnett v. Webster, 658 F.3d 742, 756 (7th Cir. 2011). In fact, the defendant will only be found liable
if the conduct that caused the medical deprivation “occurs at his direction or with his knowledge and
consent.” Gentry, 65 F.3d at 561. In other words, the defendant in his supervisory capacity had to
be aware of the unconstitutional conduct, and in some way or another, “facilitate it, condone it,
approve it, or turn a blind eye for fear of what they might see.” T.E. v. Grindle, 599 F.3d 583, 588
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(7th Cir. 2010) (quoting Jones v. City of Chi., 856 F.2d 985, 992 (7th Cir. 1988)).
Here, Dr. Shicker argues that Almond has not adequately alleged his personal involvement
within the second amended complaint. Citing Monell v. New York Department of Social Services,
436 U.S. 658 (1978), Almond argues that he has properly alleged that Dr. Shicker was personally
responsible for his lack of treatment because Dr. Shicker was aware of a custom or practice at the
DCC of not providing sufficient medical care to inmates. Almond further argues that Dr. Shicker
encouraged this practice by failing to discipline the agents that were responsible for the medical
deprivations.
Almond has conflated an official capacity claim under Monell with an individual capacity
claim requiring personal involvement. First, a Monell claim against a state employee in his official
capacity is the same as a suit against the government entity in which they are employed. Sanville
v. McCaughtry, 226 F.3d 724, 732-33 (7th Cir. 2001). But Monell claims can only be applied to
municipalities, not to state governments or entities, which are immune under the Eleventh
Amendment. Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 747-48 (7th Cir. 2005).
Accordingly, Almond is unable to sustain a Monell claim against Dr. Shicker in his official capacity.
Second, Almond has failed to allege that Dr. Shicker, in his individual capacity, had the requisite
personal involvement required to state a §1983 claim. There are no allegations that Dr. Shicker was
involved with any of the medical treatment provided for Almond. Moreover, the second amended
complaint is void of facts which adequately allege that Dr. Shicker had ever been aware of Almond’s
existence, much less the delay in treating his medical condition, and chose to facilitate it, condone
it, approve it, or turn a blind eye to it. Arnett, 658 F.3d at 757 (quoting Gentry, 65 F.3d at 561). Dr.
Shicker’s actual knowledge of a purported practice or policy of failing to provide adequate medical
care is distinct from claiming actual knowledge of Almond’s condition. See Schlueter v. Barnhart,
No. 15 C 50024, 2017 WL 319153, at * 4-5 (N.D. Ill. Jan. 23, 2017) (finding that there was an
insufficient claim of personal involvement with similar facts, where there was no allegation of actual
knowledge of the plaintiff’s serious medical need). Almond also attempts to overcome these
deficiencies by asserting that Dr. Shicker’s failure to discipline his agents constituted the requisite
personal involvement, but this is irrelevant. See Olive v. Wexford Corp., 494 F. App’x 671, 673
(7th Cir. 2012) (holding that Dr. Shicker could not be vicariously liable for his subordinates’ acts
even though he had knowledge of the misconduct but failed to fix it). Accordingly, the court finds
that the second amended complaint is absent of plausible facts sufficient to allege personal
involvement by Dr. Shicker.
III. CONCLUSION
For the foregoing reasons, the court finds that Almond’s second amended complaint does not
include sufficient facts to state a plausible claim against Dr. Shicker. Therefore, Dr. Shicker’s
motion to dismiss is granted, and he is terminated from the case.
Date: 6/22/2017

ENTER:
_________________________
FREDERICK J. KAPALA
District Judge

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