Barrow v. Wexford Health Sources, Inc. et al

Filing 12

ORDER denying 5 MOTION for Temporary Restraining Order filed by Ronald Barrow. IT IS FURTHER ORDERED that Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice for non-compliance with Rule 8(a) of the Federal Rules of Civil Proce dure. Plaintiff is GRANTED leave to file his amended complaint on or before August 25, 2014. Should Plaintiff fail to file an amended complaint within the allotted time, the entire action shall be dismissed, and Plaintiff may incur a strike. To enable Plaintiff to comply with this order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 8/25/2014). Signed by Judge Nancy J. Rosenstengel on 7/21/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD BARROW # N-52087,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
et al.,
Defendants.

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Case No. 14-cv-00800-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Ronald Barrow, who is currently incarcerated at Menard Correctional Center
(“Menard”), filed a complaint (Doc. 1) that is now before the Court for preliminary review.
Also before the Court is Plaintiff’s motion for temporary restraining order (“TRO”) (Doc. 5).
As explained in greater detail below, Plaintiff’s complaint violates the pleading requirements of
the Federal Rules of Civil Procedure. Under the circumstances, the complaint shall be dismissed
without prejudice and with leave to amend. Plaintiff’s motion for TRO, which incorporates the
complaint by reference and contains similar deficiencies, shall be denied without prejudice.
The Complaint
Plaintiff filed a pro se complaint on July 11, 2014 (Doc. 1). The 111-page complaint
includes 278 paragraphs. Along with his complaint, Plaintiff filed a 24-page memorandum of
law and a 326-page exhibit. 1 Together, these documents total 461 pages.

1

Plaintiff filed a total of 527 pages of documents on July 11, 2014. In addition to those documents listed
above, he also filed a cover letter (1 page), a motion and affidavit to proceed without fees or costs
(7 pages), a motion for recruitment of counsel (44 pages), a motion for service of process at government
expense (1 page), and a motion for temporary restraining order that includes a memorandum of law
(13 pages).

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Plaintiff filed this action pursuant to 42 U.S.C. § 1983 (Doc. 1, p. 1). When doing so, he
used the Court’s standard civil rights complaint form and indicated that he was only pursuing
relief under § 1983 and not the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, or some
other law (Doc. 1, p. 1).
The complaint identifies twelve distinct claims against nine defendants for acts or
omissions that occurred between 2005 and the present. Defendants include Wexford Health
Sources, Inc. (“Wexford”), the Director of the Illinois Department of Corrections (“IDOC”), and
seven Menard officials. Plaintiff complains of generally inadequate medical care and excessive
copays at Menard. He cites many instances of inadequate medical care at Menard. Examples
include a delay in eye surgery resulting in vision loss (2012-present), a delay and/or denial of
follow-up surgery to remove scar tissue from Plaintiff’s eye(s) (2012-present), a denial of
treatment for back pain (2012-present), the failure to refill prescription medications (2005present), chronic rectal bleeding (2006-present), the misdiagnosis of a transient ischemic attack
(2007), a two-month delay in receiving a colonoscopy that resulted in a diagnosis of
diverticulosis (2009), an eleven-month delay in obtaining an MRI to diagnose the cause of leg
pain (2009), and so on. In addition, Plaintiff asserts a claim for breach of contract and a claim
under the Illinois Consumer Fraud and Deceptive Trade Practices Act, 815 ILL. COMP. STAT.
§ 505, against Wexford. Finally, Plaintiff asserts a retaliation and due process claim against
several defendants. 2
For each of his twelve claims, Plaintiff seeks virtually the same relief, which he repeats
twelve separate times. The relief sought includes an injunction terminating the contract between
the IDOC and Wexford, prohibiting the renewal of any contract between these two entities, and
2

Plaintiff goes on to note that these claims form the basis of another lawsuit that he intends to file at a
later date.

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auditing the quality of care provided to inmates. Plaintiff also seeks monetary damages from
each defendant, which includes $13.6 million in actual damages and $13.6 million in punitive
damages against Wexford. 3
Legal Standard
Rule 8 of the Federal Rules of Civil Procedure dictates that a complaint must provide
“a short and plain statement of the claim showing that the pleader is entitled to relief” and also
“a demand for the relief sought.” FED. R. CIV. P. 8(a). Additionally, Rule 8(d) requires that each
allegation within the complaint “must be simple, concise, and direct.” FED. R. CIV. P. 8(d)(1).
The allegations in the complaint must “actually suggest that the plaintiff has a right to relief, by
providing

allegations

that

raise

a

right

to

relief

above

a

speculative

level.”

Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (emphasis in original). 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).
Discussion
Even affording Plaintiff’s complaint the liberal construction that a pro se pleading
deserves, the complaint clearly violates the dictates of Rule 8 of the Federal Rules of Civil
Procedure. As set forth above, Rule 8 requires a complaint to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a). Even
when standing alone, the 111-page, 278-paragraph complaint is far from short. However, the
complaint does not stand alone. Along with it, Plaintiff filed a 24-page memorandum of law
(Doc. 1, pp. 112-135) and a 326-page exhibit (Doc. 8), among other things.

3

In his motion for TRO, Plaintiff seeks immediate medical care, a request which appears to have been
inadvertently omitted from the complaint.

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Despite its length, the complaint is often vague. Although Defendants are generally
identified in connection with each of the twelve claims, the complaint often omits reference to
particular Defendants in conjunction with specific acts or omissions that occurred over the
course of many years. The Court and Defendants are left to guess who did what—and when.
This style of pleading prevents the Court from conducting orderly litigation, as it is
required to do. See Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d 771, 775-76 (7th Cir.
1994). It also violates the Rule 8 requirement of “a short and plain statement of the claim” by
robbing Defendants of any fair notice of the actions that are alleged to be illegal or who was
personally involved in each wrongdoing. The Court and Defendants are left “to forever sift
through [the] pages” of the complaint and exhibits to determine which allegations are made
against each Defendant. Jenning v. Emry, 910 F.2d 1434, 1436 (7th Cir. 1990). Defendants
cannot respond to this type of pleading.
Further, based on the Court’s reading of the complaint and by Plaintiff’s own admission,
Plaintiff may have attempted to bring unrelated claims in a single case. Plaintiff specifically
identifies a retaliation and/or due process claim as being appropriate for a separate lawsuit; he
even indicates that he intends to file a separate action to address the claim(s). The Seventh
Circuit has made it clear that “[u]nrelated claims against different defendants belong in different
suits.” See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); FED. R. CIV. P. 20(a)(2). This is,
in part, to prevent prisoners from dodging filing fees or the three strikes provision in the Prison
Litigation Reform Act. Id. at 607. Specifically, Rule 18(a) provides that “[a] party asserting a
claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternate
claims, as many claims as it has against an opposing party.” FED. R. CIV. P. 18(a). Under Rule
20(a)(2), defendants may be joined in one action only if the Plaintiff asserts a “right to relief . . .

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against them jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact
common to all defendants will arise in the action.” FED. R. CIV. P. 20(a)(2). Thus, under these
rules, “multiple claims against a single party are fine, but Claim A against Defendant 1 should
not be joined with unrelated Claim B against Defendant 2.” George, 507 F.3d at 607.
Because Plaintiff’s complaint is too lengthy and unclear for either the Court or
Defendants to manage, it shall be dismissed without prejudice. Lindell v. McCallum, 352 F.3d
1107, 1110 (7th Cir. 2003) (“If a complaint’s length and lack of clarity make it unintelligible,
dismissal under Fed. R. Civ. P. 8(a) is permitted. . . .”); Flayter v. Wisconsin Dep’t of Corr.,
16 F. App’x 507, 509 (7th Cir. 2001) (“A prolix and confusing complaint should be dismissed
because it makes it difficult for the defendant to file a responsive pleading and for the court to
conduct orderly litigation.”), citing Vicom, Inc., 20 F.3d at 775-76.
However, Plaintiff shall be granted leave to file an amended complaint. When doing so,
Plaintiff should identify the pleading as the “First Amended Complaint” and use this case
number to identify the pleading at the time of filing. Plaintiff should present each claim in a
separate count. He should specify by name each Defendant alleged to be liable under the count.
Plaintiff should be careful to include sufficient facts to demonstrate that each Defendant violated
his rights—constitutional or otherwise. Whenever possible, he should also include the date of
the alleged act or omission. Plaintiff should indicate whether he is bringing this action pursuant
to § 1983 or some other law and be mindful of the fact that certain claims cannot be pursued
under § 1983 (e.g., breach of contract claim against Wexford and/or state law claim against
Wexford under the Illinois Consumer Fraud and Deceptive Trade Practices Act). 4 Plaintiff must
4

Under 28 U.S.C. § 1367, this Court may have jurisdiction to address Plaintiff’s state law claims,
although they may still be subject to dismissal. See Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936

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refrain from filing unnecessary exhibits and refer to any exhibits in the body of the complaint,
where it is possible to do so. He must also bring separate, unrelated claims in separate actions
and be aware of the fact that the Court will sever such claims into separate actions. Plaintiff
shall be responsible for payment of another filing fee for any severed case.
It is important to note that the events giving rise to many of Plaintiff’s claims occurred as
far back as 2005. Claims arising from these events may already be barred by the applicable
statute of limitations. With this in mind, the Court finds that dismissal of this lawsuit without
prejudice and with leave to amend within two weeks of its filing does not prejudice Plaintiff by
placing him in a materially different position with regard to an impending statute of limitations
deadline. However, Plaintiff should be mindful of the applicable two-year statute of limitations
for claims brought pursuant to § 1983 when deciding whether to file a new lawsuit.
Motion for Temporary Restraining Order (“TRO”)
Plaintiff has also filed a motion for TRO (Doc. 5), which shall be denied without
prejudice at this time. The motion, supporting affidavit, and memorandum of law repeatedly
refer to the complaint in support of Plaintiff’s request for relief. Plaintiff seeks an order:
(1) requiring immediate eye surgery (i.e., to remove scar tissue from his right eye and a cataract
from his left eye); (2) requiring treatment of his lower back (i.e., through the use of epidural
injections, pain medications, surgery, and/or physical therapy), and (3) prohibiting further
retaliation by Defendants (Doc. 5, pp. 2-3).
In order to obtain preliminary injunctive relief, whether through a temporary restraining
order or a preliminary injunction, Plaintiff must demonstrate that: (1) his underlying case has

(7th Cir. 2008) (where a district court has original jurisdiction over a civil action such as a § 1983 claim,
it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long
as the state claims “derive from a common nucleus of operative fact” with the original federal claims.)

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some likelihood of success on the merits; (2) no adequate remedy at law exists, and (3) Plaintiff
will suffer irreparable harm without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th Cir.
2007). If those three factors are shown, the district court must then balance the harm to each
party and to the public interest from granting or denying the injunction. Id.; Korte v. Sebelius,
735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
The Court cannot adequately assess these factors at this time. The motion for TRO
consistently refers to the complaint and largely relies on it to set forth the underlying factual
allegations against Defendants. However, as set forth above, the complaint shall be dismissed
under Rule 8 of the Federal Rules of Civil Procedure, based on its length and lack of clarity. It
would make little sense to allow the motion for TRO to proceed, in light of Plaintiff’s regular
references to the complaint in the motion for TRO and his general reliance on the complaint to
set forth all underlying factual allegations against Defendants. Accordingly, the motion for TRO
shall be DENIED without prejudice to Plaintiff re-filing an amended motion for TRO along
with the First Amended Complaint, or any time it becomes necessary to do so thereafter.
Motion for Recruitment of Counsel
Plaintiff has filed a motion for recruitment of counsel (Doc. 2), which shall be held in
ABEYANCE pending the receipt of Plaintiff’s amended complaint.
Motion for Service of Process At Government Expense
Plaintiff has filed a motion for service of process at government expense (Doc. 4), which
shall be DENIED. This motion is unnecessary. Service shall be ordered on any Defendant
remaining in this action after the Court completes its preliminary review of the First Amended
Complaint.

Page 7 of 9

Motion for Clarification of Record
On July 18, 2014, Plaintiff also filed a motion for clarification of record (Doc. 9), in
which he asked the Court to confirm that it received all 527 pages of documents that Plaintiff
electronically filed on July 11, 2014. The Court hereby GRANTS this motion. The Court
received all of these documents. As noted in a docket annotation on July 17, 2014 (Doc. 8), the
326-page exhibit to the complaint has been placed in a folder due to its size.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s motion for a temporary restraining order
(Doc. 5) is DENIED without prejudice to Plaintiff re-filing the motion with his First Amended
Complaint or any time thereafter.
IT IS FURTHER ORDERED that Plaintiff’s complaint (Doc. 1) is DISMISSED
without prejudice for non-compliance with Rule 8(a) of the Federal Rules of Civil Procedure.
Plaintiff is GRANTED leave to file his amended complaint on or before August 25, 2014.
Should Plaintiff fail to file an amended complaint within the allotted time, the entire action shall
be dismissed, and Plaintiff may incur a “strike.” See 28 U.S.C. § 1915(g); FED. R. APP. P. 41(b).
See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34
F.3d 466 (7th Cir. 1994).
If Plaintiff decides to file an amended complaint, it is strongly recommended that he use
the forms designed for use in this District for such actions. He should label the pleading “First
Amended Complaint” and use this case number. The amended complaint shall present each
claim in a separate count, and each count shall specify, by name, each defendant alleged to be
liable under the count, as well as the actions alleged to have been taken by that Defendant.
Plaintiff should attempt to include the facts of his case in chronological order, inserting

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Defendants’ names where necessary to identify the actors and the dates of any material acts or
omissions. Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include
only related claims in his new complaint. Claims found to be unrelated will be severed into new
cases, new case numbers will be assigned, and additional filing fees will be assessed. To enable
Plaintiff to comply with this order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights
complaint form.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file an amended complaint. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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. APP. P. 41(b).
IT IS SO ORDERED.
DATED: July 21, 2014
Digitally signed by Nancy J
Rosenstengel
Date: 2014.07.21 14:18:47 -05'00'

_________________________
Hon. Nancy J. Rosenstengel
United States District Judge

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