Phillips v. Hodge et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. COUNT 2 is DISMISSED without prejudice. COUNT 3 is DISMISSED with prejudice. DEFENDANTS HODGE, STORM, and WEXFORD are DISMISSED from this action without prejudice. As to COUNT 1, the Clerk of Court shall prepare for DEFENDANTS FENOGLIO and MARTIN: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 2/7/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JESSE C. PHILLIPS, # B-62167,
Plaintiff,
vs.
MARC HODGE, MARK STORM,
PHILIP B. MARTIN,
JAMES FENOGLIO
and WEXFORD HEALTH
SOURCES, INC.
Defendants.

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Case No. 13-cv-00069-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 25 year
sentence for manufacturing/delivering cocaine. His claims arose during his incarceration at
Lawrence. Plaintiff asserts that the defendants, including Marc Hodge (Lawrence’s warden),
Mark Storm (Lawrence’s assistant warden), Philip B. Martin (Lawrence’s health care unit
administrator), James Fenoglio (Lawrence’s medical director and former physician), and
Wexford Health Sources, Inc. (“Wexford”) (Illinois Department of Corrections’ medical
provider), violated his constitutional rights under the Eighth and Fourteenth Amendments by
denying him adequate medical treatment for cholesteatoma 1 (Doc. 1). Plaintiff seeks
compensatory and punitive damages (Doc. 1, pp. 9-10).

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Plaintiff alleges in his complaint that cholesteatoma is a serious medical condition caused by an
ingrowth of skin from the eardrum into the middle ear (Doc. 1, p. 4). If left untreated, the condition can
cause hearing loss, dizziness, facial muscle paralysis, and infection. Id.

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Specifically, Plaintiff alleges that he suffered from an infection associated with his
cholesteatoma in November 2011 (Doc. 1, p. 4). Medical personnel at Lawrence scheduled an
appointment with an outside medical provider for November 18, 2011. The outside provider
examined and treated Plaintiff’s condition by partially draining his right ear and prescribing ear
drops. The provider issued specific orders to Defendants Fenoglio and Martin for Plaintiff’s
follow-up treatment and care, which included “giving” 2 Plaintiff ear drops prior to his follow-up
appointment with the outside provider on December 2, 2011 (Doc. 1, p. 5).
Plaintiff alleges that Defendants failed to give him the prescribed ear drops prior to that
date. At a routine appointment with Dr. Fenoglio on November 23, 2011, Plaintiff complained
of pain and drainage in his right ear, which Dr. Fenoglio treated with Ibuprofen and cotton balls
(Doc. 1, pp. 5-6). Because Plaintiff was not given ear drops, the outside provider was unable to
complete his treatment of Plaintiff on December 2, 2011 (Doc. 1, p. 6). This inaction aggravated
Plaintiff’s condition and caused pain.
Plaintiff now sues Dr. Fenoglio for his alleged deliberate indifference to Plaintiff’s
serious medical need. In addition, Plaintiff has named Defendants Hodge, Storm, and Martin
because they are included in the chain of command that would have received reports of
Plaintiff’s condition (Doc. 1, p. 7). Although Plaintiff included no allegations in his complaint
regarding their specific involvement in a constitutional violation, the exhibits filed with
Plaintiff’s complaint allege that the treatment orders were transmitted to Defendant Martin and
reveal that Defendant Martin investigated Plaintiff’s grievance regarding this matter (Doc. 1-1,

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It is unclear from the language Plaintiff used in the complaint whether Defendants failed to fill
Plaintiff’s prescription for ear drops, administer the ear drops once the prescription was filled, or both. At
this stage in this case, however, the Court is required to liberally construe the allegations in Plaintiff’s
complaint. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th 2009).

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pp. 3-5). Finally, Plaintiff sues Wexford Health Source, Inc. based on its alleged refusal to treat
Plaintiff (Doc. 1, p. 7).
Merits Review Pursuant to 28 U.S.C. § 1915A
According to 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold
review of the complaint. Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff
has articulated a colorable Eighth Amendment claim against Defendants Fenoglio and Martin for
displaying deliberate indifference to Plaintiff’s serious medical need (Count 1).
However, Plaintiff has failed to state an actionable Eighth Amendment claim against
Defendants Hodge, Storm, and Wexford (Count 2). Plaintiff alleged that Defendants Hodge and
Storm received notice of Plaintiff’s condition by virtue of their position in the chain of
command. However, the doctrine of respondeat superior is not applicable to § 1983 actions.
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). Plaintiff, like
many other inmates, seems to think that any prison employee who knows (or should know) about
his problems has a duty to fix those problems. That theory is in direct conflict with the wellestablished rule that “public employees are responsible for their own misdeeds but not for
anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). See also Monell v. Dep’t
of Soc. Serv., 436 U.S. 658 (1978). Although Plaintiff has sued Defendants Hodge and Storm in
their individual capacities, Plaintiff has failed to allege any facts which demonstrate that they are
“personally responsible for the deprivation of a constitutional right.” Id. Pleading an Eighth
Amendment claim against non-medical prison officials requires more. This is because a nonmedical prison official “will generally be justified in believing that the prisoner is in capable
hands” when under the care of prison medical professionals. Arnett v. Webster, 658 F.3d 742,

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755 (7th Cir. 2011) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). Accordingly,
Defendants Hodge and Storm are dismissed from this action without prejudice.
Plaintiff has also failed to state an Eighth Amendment claim against Wexford. The
Seventh Circuit has held that a corporate entity violates an inmate’s constitutional rights, in this
case deliberate indifference to Plaintiff’s serious medical need, only when it has a policy which
creates conditions that infringe upon an inmate’s constitutional rights. See Woodward v. Corr.
Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). See also Jackson v. Ill. Medi-Car,
Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002) (private corporation is treated as though it were a
municipal entity in a § 1983 action). Plaintiff has not alleged that Wexford had a policy or
practice of denying inmates medical treatment under the circumstances set forth in Plaintiff’s
complaint. Accordingly, Defendant Wexford is dismissed without prejudice.
Plaintiff’s Fourteenth Amendment claim (Count 3) shall also be dismissed because it is
duplicative of his Eighth Amendment deliberate indifference claim. Both claims are based on
identical facts, and Plaintiff’s case is not enhanced by the addition of a Fourteenth Amendment
claim. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (dismissing equal protection and
Eighth Amendment claims based on same circumstances as free exercise claim because free
exercise claim “gains nothing by attracting additional constitutional labels”). Accordingly,
Count 3 is dismissed with prejudice.
Disposition
COUNT 2 is DISMISSED without prejudice. COUNT 3 is DISMISSED with
prejudice.
DEFENDANTS HODGE, STORM, and WEXFORD are DISMISSED from this
action without prejudice.

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As to COUNT 1, the Clerk of Court shall prepare for DEFENDANTS FENOGLIO and
MARTIN: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and
(2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a
copy of the complaint, and this Memorandum and Order to Defendants’ place of employment as
identified by Plaintiff. If any Defendant fails to sign and return the Waiver of Service of
Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall
take appropriate steps to effect formal service on that Defendant, and the Court will require that
Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Philip M. Frazier for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Frazier for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: February 7, 2013
s/ J. Phil Gilbert
U.S. District Judge

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