Barrow v. Wexford Health Sources, Inc. et al

Filing 23

ORDER denying 21 MOTION for Temporary Restraining Order filed by Ronald Barrow and 22 MOTION to Stay re 17 Amended Complaint filed by Ronald Barrow. IT IS ALSO ORDERED that Plaintiff's first amended complaint (Doc. 17 ) is DISMIS SED without prejudice for non-compliance with Rule 8(a) of the Federal Rules of Civil Procedure. Plaintiff is GRANTED leave to file a second amended complaint on or before Wednesday, October 15, 2014. Should Plaintiff fail to file his second amended complaint within the allotted time, the entire action shall be dismissed, and Plaintiff may incur a strike. (Amended Pleadings due by 10/15/2014). Signed by Judge Nancy J. Rosenstengel on 9/10/2014. (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’s first amended complaint is, once again, before this Court for
consideration (Doc. 17). In an order dated August 28, 2014, the Court severed the vision claim
set forth in the first amended complaint into a separate action for prompt consideration of
Plaintiff’s request for eye surgery (Doc. 19). See Barrow v. Wexford Health Sources, Inc., et al.,
Case No. 14-cv-941 (S.D. Ill., Aug. 28, 2014). The factual allegations giving rise to that claim
are set forth in Paragraphs 114-82 (Doc. 17-1, pp. 16-27) and 292-310 (Doc. 17-2, pp. 15-18) of
the first amended complaint (Doc. 19). In its severance order, the Court indicated that the
remainder of the first amended complaint had a number of deficiencies that would be addressed
in a separate order. This includes Paragraphs 1-113, 183-291, and 311-360 of the amended
complaint (Doc. 17). The Court will address this portion of the first amended complaint below.
Background
On July 11, 2014, Plaintiff filed a 461-page document with the Court, which included a
111-page complaint (Doc. 1, pp. 1-111), a 24-page memorandum of law (Doc. 1, pp. 112-35),

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and a 326-page exhibit (Doc. 8). Plaintiff also filed a motion for temporary restraining order, in
addition to three other motions (Docs. 2-5).
On July 21, 2014, the Court dismissed Plaintiff’s original 461-page submission, after
determining that it violated Rule 8(a) of the Federal Rules of Civil Procedure (Doc. 12).
The 111-page complaint spanned 278 paragraphs (Doc. 1). It was divided into twelve distinct
claims against nine Defendants for acts or omissions that occurred between 2005 and the present.
Under the circumstances, the Court determined that the complaint was simply too unwieldy for
Defendants to answer. In the same order, however, the Court granted Plaintiff leave to file an
amended complaint by August 25, 2014. Plaintiff was given specific instructions for amending
the complaint in a manner that cured the deficiencies noted by the Court in its original dismissal
order (Doc. 12).
Plaintiff challenged this decision by filing a motion for relief from judgment (Doc. 13).
He asked the Court to accept all 461 pages because he deemed them necessary to support his
claims.

Alternatively, he requested additional time to prepare his amended complaint.

The Court denied Plaintiff’s request for relief from judgment on August 18, 2014, but granted his
request for an extension of the deadline to amend his complaint (Doc. 15). Accordingly, Plaintiff
was given until September 24, 2014, to file his first amended complaint.
Plaintiff instead filed the first amended complaint two days later, on August 20, 2014
(Doc. 17). Along with it, he filed a second motion for temporary restraining order (Doc. 21) and
supporting memorandum of law (Doc. 20). The Court severed that portion of the first amended
complaint and second motion for temporary restraining order addressing Plaintiff’s vision claim
into a separate action for prompt resolution. See Barrow v. Wexford Health Sources, Inc., et al.,
Case No. 14-cv-941 (S.D. Ill., Aug. 28, 2014).

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Before the Court for consideration at this time is the remainder of the first amended
complaint (Doc. 17, ¶¶ 1-113, 183-291, 311-360), that portion of Plaintiff’s second motion for
TRO which addresses all claims other than Plaintiff’s vision claim (Doc. 21), and
Plaintiff’s motion to stay ruling on remaining first amended complaint (Doc. 22).
Discussion
1.

First Amended Complaint (Doc. 17)
Like Plaintiff’s original complaint, Plaintiff’s first amended complaint shall be dismissed.

The applicable legal standard is set forth in the Court’s original dismissal order (Doc. 12, p. 3)
and will not be repeated, in full, here. Even construing the first amended complaint liberally in
favor of Plaintiff, a pro se litigant, the Court finds that it fails to pass muster under Rule 8 of the
Federal Rules of Civil Procedure. 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).
Rule 8(d) requires each allegation within the complaint to “be simple, concise, and direct.”
FED. R. CIV. P. 8(d)(1).
In many ways, the first amended complaint strays further from the dictates of Rule 8 than
Plaintiff’s original pleading.

The Court will briefly address some of the more significant

deficiencies that it noted when reviewing the pleading. Because of these numerous defects, the
first amended complaint shall be dismissed.

However, Plaintiff will be given one final

opportunity to submit a second amended complaint that cures the defects noted. Failure to
address the below-listed problems when preparing a second amended complaint will result in
dismissal of this action. Therefore, Plaintiff should carefully consider each of the Court’s
observations when re-pleading his claims.

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First, the first amended complaint is still far too long. It spans 86 pages. It still includes
repetitious allegations. Plaintiff separates these allegations into sections entitled “General Facts”
(Doc. 17-1, pp. 1-36) and “Counts” (Doc. 17-2, pp. 1-34). However, the allegations in the two
sections are often substantively identical. These sections can be consolidated, if necessary, to
avoid repeating the same allegations twice. Plaintiff should limit his second amended complaint
to 20 pages in length. 1
Second, the allegations still refer to events that occurred as far back as 2005. An obvious
barrier to claims arising from these events is the applicable statute of limitations, which is
different for Plaintiff’s various claims. A two-year statute of limitations generally applies to
§ 1983 claims in Illinois. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Ray v. Maher,
662 F.3d 770, 772-73 (7th Cir. 2011); Turley v. Rednour, 729 F.3d 645 (7th Cir. 2013).
Therefore, claims arising from events that occurred more than two years before Plaintiff
commenced this action may be time-barred. In some instances, these allegations simply provide
additional examples of an on-going violation. Under such circumstances, the allegations are
cumulative and unnecessary.

At the early pleadings stage, Plaintiff need not produce an

exhaustive chronology detailing each instance when his rights were violated. 2 As the Court has
emphasized, all that is required is “a short and plain statement of the claim showing that the
pleader is entitled to relief.” See FED. R. CIV. P. 8(a).
Third, the amended complaint still includes a level of detail that is not necessary at the
early pleadings stage. Plaintiff has expanded his allegations from 278 paragraphs in the original
complaint to 360 paragraphs in the amended complaint. Plaintiff should only include factual

1

Plaintiff should not attempt to effectively circumvent this page limitation by using a smaller font.
For example, Plaintiff claims that he was consistently denied access to prescription medications over the
course of many years. It is not necessary to list each instance when he asked for medication and did not
receive it.

2

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allegations that are absolutely necessary to suggest a claim against Defendants. In the second
amended complaint, it will not be necessary to include any paragraphs related to the vision
claim. This includes Paragraphs 114-82 (Doc. 17-1, pp. 16-27) and 292-310 (Doc. 17-2, pp. 1518) of his first amended complaint. Plaintiff should go beyond this, however, and eliminate
other extraneous or cumulative allegations related to his remaining claims. 3
Fourth, Plaintiff should eliminate factual allegations against individuals who are not
named as Defendants. The first amended complaint lists nine Defendants in the case caption.
However, the Statement of Claim regularly refers to other non-parties, including the following
individuals: Feinerman, Fahim, Platt, Shepherd, Kinkade, Hale, Gedman, Lehman, Mattocks,
Malley, Shecker, Broch, Krieg, Nwaobasi, Fuente, Pollen, Leyland, Alruder, Williams, Els,
Unwin, Terrogopula, Corduba, and an unidentified medical technician. It is not clear whether
Plaintiff intends to sue these two dozen other individuals or not. Regular reference to non-parties
muddles the pleading. To the extent possible, Plaintiff should exclude reference to them.
Fifth, the “Counts” are not numbered correctly. Plaintiff used Roman numerals to refer
to each of his separate claims. They increase, then decrease, then increase once again—making
it difficult to track Plaintiff’s claims.

In his second amended complaint, Plaintiff should

separately number each “Count” or “Claim,” so that the Court and Defendants can easily address
them.
Sixth, Plaintiff raises far too many claims, which may necessitate further severance of
this action into separate lawsuits. If these claims are severed, Plaintiff will be required to pay an
additional filing fee for each action. The thrust of Plaintiff’s complaint is against Wexford.
Plaintiff seeks an injunction terminating its contract with the IDOC, among other things.
3

For example, in support of Plaintiff’s request for an order terminating the contract entered into between
the Illinois Department of Corrections (“IDOC”) and Wexford Health Sources, Inc. (“Wexford”),
Plaintiff discusses, at length, instances when Wexford’s contract was terminated in other states.

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Setting the Wexford claims aside, Plaintiff goes on to raise a significant number of additional
federal and state law claims against the remaining eight Defendants. The Court identified the
following additional potential claims: (1) Eighth Amendment deliberate indifference to medical
needs claims for no less than twenty-two different conditions (i.e., diverticulosis, misdiagnosed
stroke, left leg problem, lower back injury, gastrointestinal reflux, hiatal hernia, knee injuries,
shoulder pain, sharp ear pain, trigeminal neuralgia, hypertension, enlarged prostate, heart
condition, severe leg cramps, muscle spasms, low iron, low potassium, excessive ear wax,
temporary hearing loss, skin spots, chronic headaches, and failure to provide prescription
medications) (Doc. 17, pp. 1-31); (2) an Eighth Amendment conditions of confinement claim;
(3) a retaliation claim; (4) an excessive co-pays claim; (5) multiple negligence claims;
(6) a claim for denial of access to the courts; (7) an Illinois consumer fraud claim; (8) Freedom
of Information Act (“FOIA”) claim; and (9) breach of contract claim. To assist Plaintiff in
narrowing these claims, the Court will decline to exercise supplemental jurisdiction over the state
law claims, given the complexity of this lawsuit and Plaintiff’s difficulties in drafting a coherent
pleading. Plaintiff should therefore eliminate all reference to his Illinois consumer fraud claim,
the breach of contract claim, and the negligence claims.
The remaining claims should be properly organized, so that the Court and Defendants can
easily address them. By way of example, the Eighth Amendment deliberate indifference to
medical needs claims arising from at least twenty-two different conditions do not constitute a
single “Count.” Each medical condition potentially gives rise to a separate Eighth Amendment
claim. The second amended complaint should be organized accordingly.

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With these considerations in mind, the first amended complaint shall be DISMISSED.
However, the dismissal shall be without prejudice to filing a properly drafted and timely second
amended complaint, according to the instructions and deadline set forth below.
2.

Second Motion for Temporary Restraining Order (“TRO”) (Doc. 21)
Plaintiff has filed a second motion for TRO (Doc. 21). The Court already articulated the

applicable legal standard for a temporary restraining order and/or a preliminary injunction in its
initial dismissal order, and that standard will not be repeated here (Doc. 12, pp. 6-7)
(citing Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007); Korte v. Sebelius, 735 F.3d 654, 665
(7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)).
Plaintiff’s second motion primarily addresses his request for eye surgery, and this portion
of the motion has already been referred for prompt consideration in the severed action. What is
left for consideration in this action is Plaintiff’s request for treatment of his lower back disc
problem (Doc. 21, p. 1). Plaintiff addresses the issue in a single sentence (Doc. 21, pp. 1-2).
Presumably, he is, once again, relying on the facts in the first amended complaint to support his
request for relief. In any event, his single sentence allegation, which relies on a deficient
pleading, fails to support a request for a TRO at this time.
As explained above, the Court is dismissing the first amended complaint because of its
many deficiencies and its lack of clarity. Plaintiff’s motion, which necessarily relies on the
allegations in the amended complaint, shall also be DENIED. However, the denial shall be
without prejudice to Plaintiff renewing his request for relief at any time he deems it necessary to
do so. He must include any future request for a TRO and/or preliminary injunction under
Federal Rule of Civil Procedure 65 in a separate motion that includes sufficient factual
allegations to support his request for relief without reference to the complaint.

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3.

Motion to Stay Ruling on Remaining First Amended Complaint (Doc. 22)
Plaintiff has filed a motion seeking a stay of the Court’s preliminary review of the first

amended complaint, which shall be DENIED. The Court deems it necessary to address the
deficiencies in the first amended complaint, so that Plaintiff can avoid these pitfalls when
preparing his second amended complaint.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s second motion for a temporary restraining
order (Doc. 21), as it relates to his back treatment claim only, is DENIED without prejudice.
IT IF FURTHER ORDERED that Plaintiff’s motion to stay ruling on remaining first
amended complaint (Doc. 22) is DENIED.
IT IS ALSO ORDERED that Plaintiff’s first amended complaint (Doc. 17) is
DISMISSED without prejudice for non-compliance with Rule 8(a) of the Federal Rules of
Civil Procedure. Plaintiff is GRANTED leave to file a second amended complaint on or before
Wednesday, October 15, 2014. Should Plaintiff fail to file his second 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. CIV. 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).
Should Plaintiff decide to file a second 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 “Second Amended Complaint” and use this case number.

The second amended

complaint is limited to twenty pages in length and shall not include any allegations related to the
vision claim, which has been severed from this action. It should also exclude all Illinois state
law claims. Each claim shall be presented in a separate count, and each count shall specify,

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by name, each Defendant alleged to be liable under the count, as well as the actions alleged to
have been taken by that Defendant. To the extent possible, Plaintiff shall exclude references to
non-parties. Plaintiff should attempt to include the facts of his case in chronological order,
inserting Defendants’ names where necessary to identify the actors and the dates of any material
acts or omissions. Plaintiff should refrain from including an exhaustive chronology or 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 another 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

a

second

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. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 10, 2014

Digitally signed by
Nancy J Rosenstengel
____________________________________
NANCY J. ROSENSTENGEL
United States District Judge

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