Burt v. Berner et al

Filing 124

ORDER GRANTING 103 MOTION for Leave to File Amended Complaint filed by Ronald Burt. Amended Complaint to be filed by 12/14/15; DENYING WITHOUT PREJUDICE 107 MOTION for Protective Order filed by Sam Nwaobasi, DENYING WITHO UT PREJUDICE 117 MOTION to Compel Production of Medical Records and for Sanctions and Certification of Good Faith Effort to Resolve filed by Ronald Burt, DENYING 122 MOTION for Leave to File Supplemental Brief in Support of Plain tiff's Motion for Leave to File Amended Complaint filed by Ronald Burt. Telephonic Status Conference set for 12/16/2015 at 3:00 PM before Magistrate Judge Donald G. Wilkerson. Wexford Defendants to initiate the phone conference. Signed by Magistrate Judge Donald G. Wilkerson on 12/10/15. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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)
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Plaintiff,
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v.
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RICK HARRINGTON, SAM NWAOBASI,)
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and JANE DOE #1,
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Defendants.
RONALD BURT,

Case No. 3:13-cv-794-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion for Leave to File Amended Complaint filed
by Plaintiff (Doc. 103), the Motion for Protective Order filed by Defendant Nwaobasi (Doc. 107),
the Motion to Compel filed by Plaintiff (Doc. 117), and the Motion for Leave to File Supplement
filed by Plaintiff (Doc. 122). For the reasons set forth below, the Motion for Leave to File
Amended Complaint is GRANTED, the Motion for Protective Order is DENIED WITHOUT
PREJUDICE, the Motion to Compel is DENIED WITHOUT PREJUDICE, and the Motion
for Leave to Supplement is DENIED.1
After considering whether Plaintiff exhausted his administrative remedies, as required by
the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), Plaintiff was permitted to proceed on
Count 1 of the Complaint, alleging that Defendants Dr. Samuel Nwaobasi and Jane Doe # 1 were
deliberately indifferent to his chronic back and neck pain while he was housed at the Menard
Correctional Center beginning in April, 2012 (102).
1

Plaintiff draws the Court’s attention to a case in the Northern District of Illinois concerning
medical care provided by the Illinois Department of Corrections; and, in particular, an expert
report recently filed in that case. While the contents of the report may have some relevance to
Plaintiff’s claims, they are not relevant to whether leave to amend should be granted in this
matter.
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Plaintiff now seeks to amend his complaint in order to assert additional claims and add a
previously dismissed Defendant.2 The proposed pleading outlines Plaintiff’s chronic back and
neck pain beginning prior to 2007. Plaintiff claims that Defendant Frierdich treated him on April
16, 2012 but that the treatment was inadequate. Pain medication given from April 2012 to
October 2012 was insufficient to treat his condition. He further was denied pain medication and
necessary surgery by Defendants Wexford, Nwaobasi, Trost, “and other Defendants” throughout
2012 and 2013. In reviewing an October 23, 2012 grievance, Plaintiff claims that Defendant
Crain refused to take any action despite his obvious condition. Various medical requests
submitted to Defendants Nwaobasi and Crain in 2013 for follow-up visits and copies of his x-rays
were refused. Plaintiff then was given inadequate medical treatment by Defendant Moldenhauer
on July 17, 2013 after having been denied pain medication for the previous 7 months. He then
was denied adequate medical care by Defendant Hamby on November 26, 2013 and by Defendant
Trost on December 24, 2013. Finally, Plaintiff asserts that Wexford Health Sources, Inc.
maintains an unconstitutional policy and practice of denying adequate medical treatment in order
to save money – resulting in denial of adequate health care for an 8 year period. Plaintiff sets
forth one claim of deliberate indifference claim in Count 1 as to each Defendant.3
Defendants argue that the proposed pleading is futile because of the District Court’s
findings as to exhaustion and because allowing additional claims against new Defendants would
unnecessarily delay this proceedings. The Court notes that there is no deadline in this case for
the filing of amended pleadings and that this matter has been delayed because of the extended
time period required to resolved the issue of exhaustion as to the previously named Defendants.
2

Plaintiff seeks to add as Defendants Angela Crain (who had previously been dismissed on April
14, 2015) and Michael Moldenhauer, Lakeisha Hamby, John Trost, Chad Frierdich (who appears
to be Jane Doe #1), and Wexford Health Sources, Inc., who are new Defendants. Each
Defendant is being sued in their individual and official capacities and are alleged to have worked
or operated at Menard.
3

It is unclear why Plaintiff is suing all Defendants, including Wexford, in their official and
individual capacities.
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Federal Rule of Civil Procedure 15 provides that leave to amend should be freely given
when justice so requires. Leave to amend should be given unless there is a reason to deny leave
such as undue delay or prejudice. Life Plans, Inc. v. Security Life of Denver Ins. Co., 800 f.3d
343, 357-358 (7th Cir. 2015). There is no justification for denying leave in this matter. There is
no deadline for amendments.

Plaintiff sought leave immediately after the threshold

jurisdictional issue was determined. And, there has been no argument that the amendments are
futile. While the Court is mindful that allowing an amendment would result in delay to the
existing Defendants, it does not follow that the delay was caused by Plaintiff’s actions or that they
would suffer prejudice. Accordingly, leave to amend is GRANTED and Plaintiff shall file his
amended complaint by December 14, 2015.
This matter is further set for a Telephonic Scheduling/Status Conference on December
16, 2015 at 3:00 p.m. At that Conference, the parties should be prepared to discuss the schedule
in this matter with the intent that a trial be set for the Summer of 2016. The parties should also be
prepared to discuss in detail the timing and nature of discovery. The Court assumes that the
parties already have exchanged initial disclosures and encourages the parties to keep in mind the
new Federal Rule of Civil Procedure 26(b) that discovery requests be proportional to the needs of
the case. In anticipation of the conference, the two discovery motions (Docs. 107 and 117) are
DENIED WITHOUT PREJUDICE. The Court intends to consider any discovery dispute
informally and shall do so at the conference. The parties may submit by e-mail proposed
schedules to the Court, agreed or otherwise, by December 15, 2015.
IT IS SO ORDERED.
DATED: December 10, 2015

DONALD G. WILKERSON
United States Magistrate Judge

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