Thompson v. Wexford Health Sources Inc et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, granting 4 MOTION for service of process at government expense filed by Brian Thompson. IT IS HEREBY ORDERED that, because COUNT 1, as pleaded, fails to state a claim upon which relief may be granted relative to "JANE DOE" Health Care Administrator, she is DISMISSED without prejudice. IT IS FURTHER ORDERED that COUNT 2 fails to state a claim upon which relief can be grated; therefore, COUNT 2 and TERRI ANDERSON, SARAH JO HNSON, "JOHN DOE" IIB member, and "JOHN DOE" Warden's designee are DISMISSED with prejudice. As to COUNT 1, which remains in the instant case, the Clerk of Court shall prepare for Defendants DR. GARDNER and WEXFORD HEATH SOURCES, INC.: (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 Michael J. Reagan on 3/19/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN THOMPSON, No. L-00060,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
DR. GARDNER,
TERRI ANDERSON,
SARAH JOHNSON,
JOHN DOE, IIB Member,
JOHN DOE, Warden’s Designee, and
JANE DOE, Health Care Administrator,
Defendants.

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CIVIL NO. 13-cv-00158-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Brian Thompson, an inmate in Pinckneyville Correctional Center, brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case is
now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A,
which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may
be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.

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An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which
relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint
is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint, the Court finds it appropriate to exercise its
authority under Section 1915A; portions of this action are subject to summary dismissal.
The Complaint
In his complaint (Doc. 1), Plaintiff generally alleges that over a year, beginning in
July 2010 when he transferred into Pinckneyville, the dentist at Pinckneyville, Defendant Dr.
Gardner, delayed and/or denied him treatment for several painful dental issues, including broken
dentures, missing fillings and an exposed dental root. According to Plaintiff, the delay in
treatment eventually resulted in multiple teeth having to be extracted, rather than repaired.
Plaintiff contends that not only was Dr. Gardner deliberately indifferent to his serious dental
needs, but Gardner’s employer, Defendant Wexford Health Sources, Inc., had a practice and

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policy of deliberate indifference, designed to save money. Plaintiff further asserts that Defendant
“Jane Doe,” the Health Care Administrator at Pinckneyville, who may or may not be employed
by Wexford, “is responsible for the provision of health care to the inmates…” (Doc. 1, p. 3).
During the period of inadequate dental care, Plaintiff pursued multiple
administrative grievances aimed at securing prompt and proper treatment. He claims that the
following Defendants approved the denial of his grievance(s), thereby exhibiting deliberate
indifference to Plaintiff’s serious dental needs: Terri Anderson, the IDOC Director’s designee;
Sarah Johnson, the Administrative Review Board hearing officer; “John Doe” IIB member; and
“John Doe,” the Pinkneyville Warden’s designee.
Plaintiff seeks compensatory damages, “exemplary” damages (which the Court
construes as punitive damages), and affirmative injunctive relief in the form of dental care and
medication.
Based on the allegations of the complaint, the Court finds it convenient to divide
the pro se action into two broad counts. The parties and the Court will use these designations in
all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit.
Count 1: Defendants Dr. Gardner, “Jane Doe” Health Care
Administrator, and Wexford Health Sources, Inc., were deliberately
indifferent to Plaintiff’s serious dental needs, in violation of Plaintiff’s
rights under the Eighth Amendment; and
Count 2: Defendants Terri Anderson, Sarah Johnson, “John Doe”
IIB member and “John Doe” Warden’s designee were deliberately
indifferent to Plaintiff’s serious dental needs, in violation of Plaintiff’s
rights under the Eighth Amendment. 1

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Plaintiff specifically framed this claim as “deliberate indifference,” rather than as a “due
process” violation.
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Discussion
Relative to Count 1 against the medical professionals, their failure to provide
timely and adequate treatment may constitute deliberate indifference. See Farmer v. Brennan,
511 U.S. 825, 837 (1994); Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000); Gutierrez v.
Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Accordingly, Plaintiff’s claim against Defendants
Dr. Gardner and Wexford Health Sources, Inc., shall proceed. However, the claim against “Jane
Doe” Health Care Administrator, fails to state a claim. Defendants in supervisory roles cannot
be held liable in a Section 1983 action for the deliberate indifference of their subordinates, absent
personal involvement in the constitutional deprivation, which has not been pleaded. Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir. 2009); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th
Cir. 2001). Therefore, “Jane Doe” Health Care Administrator shall be dismissed without
prejudice.
Count 2 also alleges an Eighth Amendment claim, but the defendants are clearly
not medical professionals. There is no basis to conclude that the non-medical-provider
Defendants were deliberately indifferent to Plaintiff’s alleged need for treatment. Arnett v.
Webster, 658 F.3d 742, 755 (7th Cir. 2011); Burks, 555 F.3d at 596. Sufficient personal
involvement in the constitutional deprivation has not been pleaded. Burks, 555 F.3d at 596;
Sanville, 266 F.3d at 740. A public employee who knows about a danger need not act to avert it,
DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989), and “the alleged
mishandling of … grievances by persons who otherwise did not cause or participate in the
underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011).
Therefore, Count 2 against Defendants Terri Anderson, Sarah Johnson, “John Doe” IIB member
and “John Doe” Warden’s designee shall be dismissed with prejudice.

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Pending Motions
Plaintiff’s motion for appointment of counsel (Doc. 3) shall be REFERRED to
Magistrate Judge Stephen C. Williams.
Disposition
For the reasons stated, COUNT 1 alleging an Eighth Amendment violation shall
proceed against DR. GARDNER and WEXFORD HEALTH SOURCES, INC.
IT IS HEREBY ORDERED that, because COUNT 1, as pleaded, fails to state a
claim upon which relief may be granted relative to “JANE DOE” Health Care Administrator,
she is DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNT 2 fails to state a claim upon which
relief can be grated; therefore, COUNT 2 and TERRI ANDERSON, SARAH JOHNSON,
“JOHN DOE” IIB member, and “JOHN DOE” Warden’s designee are DISMISSED with
prejudice.
The Clerk of Court is DIRECTED to have the record reflect that there were two
“John Doe” defendants named in the complaint.
Service of Process and Procedural Directives
Plaintiff’s motion for leave to proceed as a pauper (Doc. 2) has been granted by
separate order. Consequently, the related motion for service of process at government expense
(Doc. 4) is GRANTED.
As to COUNT 1, which remains in the instant case, the Clerk of Court shall
prepare for Defendants DR. GARDNER and WEXFORD HEATH SOURCES, INC.: (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

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complaint, and this Memorandum and Order to each Defendant’s place of employment as
identified by Plaintiff. If a 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).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate

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Judge Stephen C. Williams 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 Section 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: March 19, 2013
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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