Phillips v. Wexford Health Sources Inc et al

Filing 29

ORDER DISMISSING CASE with prejudice. Plaintiff is advised that this dismissal shall count as one of his allotted strikes under the provisions of 28 U.S.C. § 1915(g). Plaintiff's obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the filing fee of $350 remains due and payable. Signed by Judge G. Patrick Murphy on 8/24/2012. (ktc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JESSE C. PHILLIPS,

)
)
Plaintiff,
)
)
vs.
)
)
WEXFORD HEALTH SOURCES INC., )
PHILIP B. MARTIN, GLADYSE C. )
TAYLOR, LEE RYKER, JR., PAMELA J. )
MORAN, and JAMES FENOGLIO,
)
)
Defendants.
)

CIVIL NO.11-877-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, Mr. Jesse C. Phillips, currently incarcerated at Lawrence Correctional Center
(“Lawrence”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Under 28 U.S.C. §
1915A, the Court is required to conduct a prompt threshold review of the complaint.
Plaintiff claims that on June 18, 2010 he was seen by Lawrence medical staff for treatment of
a right eardrum infection. Defendant James Fenoglio, a doctor working at Lawrence, prescribed
Plaintiff Bactrim without explaining the side effects of the medication. Neither did the Bactrim
package contain a list of side effects. Plaintiff took the Bactrim as-prescribed and experienced
symptoms including cramps, decreased urination, and lethargy–symptoms he later learned are listed
side effects of Bactrim. After he began experiencing these side effects, Plaintiff complained to
Defendants Philip B. Martin, Lawrence’s Health Care Unit Administrator, and Fenoglio. Plaintiff was
seen by a nurse practitioner in response to these complaints on June 29, 2010. Plaintiff filed an
institutional grievance about the side effects on June 30, 2010.
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On approximately August 27, 2010, Defendant Pamela J. Moran denied Plaintiff’s grievance,
stating that Plaintiff’s allegations were unsubstantiated. Defendant Lee Ryker, Lawrence’s Warden,
approved the denial of the grievance. However, in December of 2010 as part of a different civil action,
Plaintiff received a copy of his prison file and found an August 27, 2010 correspondence between
Defendants Moran and Martin in which Martin confirmed to Moran that the Office of Health Services
did not want prisoners to receive medication side effects in writing “because they will grieve every side
effect and try to bring suit.”
Plaintiff alleges several claims from these facts: (1) a conspiracy to deny him access to the
courts in violation of his First Amendment rights against Defendants Moran, Martin, and Wexford
Health; (2) a due process claim that Defendants Martin and Moran deprived him of property–that
property being his recovery in a state suit that he would have been able to bring, had those Defendants
not conspired to deny him access to the courts; (3) deliberate indifference to his serious medical needs
in violation of his Eighth Amendment rights by Defendants Martin and Fenoglio for their failure/refusal
to provide him with Bactrim’s side effects; (4) deliberate indifference to his serious medical needs in
violation of the Eighth Amendment against Defendants Gladyse C. Taylor, Illinois Department of
Corrections Director, Moran, and Ryker as they were aware through Plaintiff’s grievances of his need
for the side effect warnings; and (5) retaliation for exercising his right to submit an institutional
grievance by refusing to provide him the requested side effects and by falsifying her response to his
grievance against Defendant Moran.
Plaintiff’s third and fourth claims assume that denying his access to the listed side effects of
Bactrim constituted deliberate indifference to a serious medical need. “An objectively serious medical
need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.” King v. Kramer, 680
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F.3d 1013, 1018 (7th Cir. 2012) (internal citations and quotations omitted). Plaintiff’s deliberate
indifference claims do not, however, focus on his experience of Bactrim side effects. By his own
account, he was seen by medical personnel at Lawrence for treatment of those complaints. He instead
claims that by not-providing the possible side effects, Defendants were deliberately indifferent to a
serious medical need. Plaintiff fails to state any serious medical need here–his desire for greater
pharmacological information is not a serious medical need or a medical condition at all. Much as in
Munson v. Gaetz, in which the plaintiff complained that the prison refused to allow him a copy of the
Physician Desk Reference, Plaintiff’s own papers show that the Defendants restricted the side effect
information for a valid penological purpose–“Exhibit F” of the complaint is an e-mail from Defendant
Martin stating that the “Office of Health Services does not want us to give the side effects in writing
to them because they will grieve every side effect and try to bring suits. The offenders usually will
research their medications in the Library” (Doc. 18-3). See Munson v. Gaetz, 673 F.3d 630, 635 (7th
Cir. 2012) (“Munson’s complaint provided the prison’s legitimate interest in restricting his access to
the books and the rational connection between that interest and the restriction takes no imaginative dive
into the depths of the prison officials’ consciousness.”). What Plaintiff has alleged is a conspiracy to
keep information from him–but by his own complaint that “conspiracy” is related to a legitimate
penological interest.
There is no serious medical need, nor is there deliberate indifference. At most, Plaintiff could
attempt to claim that Defendant Fenolglio was negligent in not providing side effects for the prescribed
antibiotic, but “[n]egligence–even gross negligence–is insufficient” to show deliberate indifference.
King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012). Plaintiff fails to state any claim for deliberate
indifference to a serious medical need, and his claims (3) and (4) (above) against Defendants Martin,
Fenoglio, Taylor, Moran, and Ryker are DISMISSED with prejudice. See Munson, 673 F.3d at 637
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(“The Eighth Amendment protects a prisoner’s right to receive adequate treatment, not the right to have
one’s own set of books about drugs.”).
Plaintiff’s claim that Defendants Moran, Martin, and Wexford Health conspired to deny him
access to the courts in violation of his First Amendment rights likewise fails to survive screening. As
an initial matter, Wexford Health must be dismissed. Plaintiff states only that “Wexford intentionally
attempted to conceal facts about his medication side effects...to frustrate the ability of Plaintiff to realize
he had a claim/claims and prove it.” (Doc. 18). Section 1983 “does not establish a system of vicarious
liability.” Burks v. Raemisch, 555 F.3d 592, 593-94 (7th Cir. 2009). Plaintiff does not claim that it was
a policy or practice of Wexford to conceal side effects in order to obstruct his First Amendment right
of access to the courts. See Woodward v. Corr. Medical Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir.
2004). Wexford Health Services is DISMISSED, but Plaintiff does not state a claim here against any
of the Defendants.
“[T]o satisfactorily state a claim for an infringement of the right of access, prisoners must also
allege an actual injury.” In re Maxy, 674 F.3d 658, 660 (7th Cir. 2012), citing Ortiz v. Downey, 561
F.3d 664, 671 (7th Cir. 2009) (“That right [to access courts] is violated when a prisoner is deprived of
such access and suffers actual injury as a result.”). Plaintiff’s claim here appears to be that Defendants
concealed Bactrim’s side effects to protect themselves from a potential suit. So his “actual injury” is
ostensibly the lost opportunity to bring a suit against Defendants for prescribing him a medication with
side effects. While “loss of an opportunity to sue” can constitute an access to courts claim, Christopher
v. Harbury, 536 U.S. 403, 414 (2002), “the underlying cause of action, whether anticipated or lost, is
an element that must be described in the complaint, just as much as allegations must describe the
official acts frustrating the litigation.” Id. at 415. Plaintiff’s complaint fails to lay out a cognizable or
non-frivolous claim that he was denied from pursuing. What his Bactrim-side-effects suit might have
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been is not clear. If the basis for suit was that Plaintiff was seen by a doctor for a serious ear infection
and was treated with an antibiotic, the use of which resulted in mild side effects, then the Court finds
this to be frivolous.

See Harbury, 546 U.S. at 415 (“[T]he named plaintiff must identify a

‘nonfrivolous,’ ‘arguable’ underlying claim.”). Plaintiff’s access-to-courts claim against Defendants
Moran, Martin, and Wexford Health is therefore DISMISSED with prejudice.
Plaintiff’s due process claim that Defendants Martin and Moran deprived him of property (his
potential state suit recovery) likewise fails to state a claim. “To have a property interest protected by
the Fourteenth Amendment…[plaintiff] must have more than a unilateral expectation of the claimed
interest. He must, instead have a legitimate claim of entitlement to it. An entitlement of that magnitude
arises when statutes, regulations or a contract establish a framework of factual conditions delimiting
entitlements which are capable of being explored at a due process hearing.” Santana v. Cook County
Board of Review, 679 F.3d 614, 621 (7th Cir. 2012). The possibility of recovering damages in a lawsuit
which was never filed (and the basis of which Plaintiff fails to adequately articulate here) is not an
entitlement. Plaintiff states no due process infringement, and this claims is also DISMISSED with
prejudice.
Plaintiff’s final claim is that Defendant Moran retaliated against him for filing a grievance. Her
alleged retaliation constituted writing information that she knew to be false on the response to
Plaintiff’s grievance. It is true that “an act in retaliation for the exercise of a constitutionally protected
right is actionable under Section 1983 even if the act, when taken for different reasons, would have
been proper,” Howard v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987), and that “[a] prisoner has a First
Amendment right to make grievances about conditions of confinement.” Watkins v. Kasper, 599 F.3d
791, 798 (7th Cir. 2010). The act of retaliation here, however, is Defendant’s recommendation that
“[b]ased upon a total review of all available information, this Grievance Officer recommends that the
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grievance be denied. The allegations are not substantiated.” (Doc. 18-2). Plaintiff claims that Moran
did know the claims were substantiated, via her e-mails with Defendant Martin which set out the
institution’s rationale for not-providing medication side effect lists. What Plaintiff is complaining of
here is an unfavorable response to his grievance. To argue that Defendant denied the grievance in
retaliation for Plaintiff filing the grievance is too circuitous, even if, in denying the grievance,
Defendant lied. There is no plausible retaliation claim here, and this claim too is DISMISSED with
prejudice. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (plaintiff’s argument that
conspiracy by prison officials to deny administrative review of his grievances by dismissing them was
frivolous where plaintiff had access to the grievance procedure but did not obtain the outcome he
desired).
IT IS HEREBY ORDERED that Plaintiff’s complaint fails to state a claim upon which relief
can be granted and thus is DISMISSED with prejudice. Plaintiff’s pending motions are DENIED.
Plaintiff is ADVISED that this dismissal shall count as one of his allotted “strikes” under the
provisions of 28 U.S.C. § 1915(g).

IT IS SO ORDERED.
DATED: August 24, 2012
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G. PATRICK MURPHY
United States District Judge

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