Thomas v. Wexford Health Services et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 3/17/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BISHARA THOMAS, # R-48668,
Plaintiff,
vs.
WEXFORD HEALTH SERVICES,
DR. RITZ, and KIMBERLY BUTLER,
Defendants.

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Case No. 15-cv-00108-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Bishara Thomas, an inmate at Menard Correctional Center (“Menard”), brings
this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants have
denied him adequate medical treatment for a chronic stomach condition. (Doc. 1, p. 5). Plaintiff
seeks monetary and injunctive relief.
The complaint comes now before the Court for a preliminary review pursuant to 28
U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner complaints
to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any
portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which
relief may be granted, or asks for money damages from a defendant who by law is immune from
such relief. 28 U.S.C. § 1915A(b).
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

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face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to
relief must cross “the line between possibility and plausibility.” Id. at 557. At the same time, 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).
The Complaint
Since November 2009, Plaintiff has suffered severe abdominal pain. (Doc. 1, p. 5). He
has been seen on numerous occasions by medical staff at Stateville Correctional Center and
Menard. Id. Over the years, Plaintiff has repeatedly complained about his condition, which he
states is very painful and includes the following symptoms: bloating, thin and bloody stool,
vomiting black and bloody substances, diarrhea, constipation, and soreness. Id. Plaintiff has
been prescribed various medications, all to no avail. Plaintiff maintains that the medications
have provided him with no relief and have, in fact, exacerbated his stomach condition. Id.
Plaintiff asserts that Dr. Trost, the head medical provider at Menard, told Plaintiff that the
treatments options available at Menard were limited and had all been exhausted. Id. Dr. Trost
maintained that they would not be able to effectively treat Plaintiff at Menard until Plaintiff
underwent a CT scan or endoscopy, procedures which could not be performed at Menard. Id. Dr.
Trost submitted a referral for the tests, but the request was denied by Defendant Wexford Health
Services (“Wexford”) and its employee, Defendant Dr. Ritz. Id. In a letter dated December 18,
2014, Charlotte Miget, a nursing supervisor, explained that Plaintiff’s case had been “presented
in collegial” and the request for a CT scan and/or endoscopy had been denied by Wexford. Id. at
46. Plaintiff was directed to use “nurse sick call as needed.” Id.
Finally, Plaintiff states that he has repeatedly been charged a medical co-pay for the same
ongoing medical issue, which he maintains is against prison policy. Id. at 6.

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Discussion
To plead an Eighth Amendment medical needs claim, a complaint must allege two
elements: 1) an objectively serious medical condition; and 2) an official's deliberate indifference
to that condition. See Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.2006); see also Roe v.
Elyea, 631 F.3d 843, 857 (7th Cir. 2011). The Seventh Circuit has held that a medical need is
objectively “serious” where it has either “been diagnosed by a physician as mandating treatment”
or where the need is “so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). To establish that
an official acted with deliberate indifference, a plaintiff “must demonstrate that prison officials
acted with a ‘sufficiently culpable state of mind.’” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). Specifically, officials must “know
of and disregard an excessive risk to inmate health” by being “‘aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists’” and “‘draw[ing] the
inference.’” Greeno, 414 F.3d at 653 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
Moreover, “[a] delay in treatment may constitute deliberate indifference if the delay exacerbated
the injury or unnecessarily prolonged an inmate’s pain.” McGowan v. Hulick, 612 F.3d 636, 640
(7th Cir. 2010); see also Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996).
Accepting Plaintiff’s allegations as true, as the Court must at this stage, the Court finds
that Plaintiff has sufficiently alleged that he is suffering from an objectively serious medical
condition. The question, therefore, is whether the named Defendants acted with deliberate
indifference.
According to the Complaint, Defendant Wexford denied a request made by Dr. Trost, the
head medical doctor at Menard, to send Plaintiff to an outside medical facility for medical tests

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Dr. Trost believed were necessary to adequately diagnose and treat Plaintiff’s stomach condition.
Although a mere disagreement regarding the proper course of treatment usually does not give
rise to a claim of deliberate indifference, that determination turns on questions of fact that cannot
be decided at this stage. The Seventh Circuit has noted
Like other medical decisions, the choice whether to refer a prisoner to a specialist
involves the exercise of medical discretion, and so refusal to refer supports a
claim of deliberate indifference only if that choice is ‘blatantly inappropriate.’ On
occasion, we have noted that failure to authorize such a visit permits an inference
of deliberate indifference.
Pyles v. Fahim, 771 F.3d 403, 411-12 (7th Cir. 2014) (collecting cases) (internal citations
omitted).
Defendant Wexford’s liability is complicated by the fact that it is a corporation that
provides medical care at the prison on a contractual basis.

Private corporations, such as

Wexford, cannot be held liable under § 1983 unless the constitutional violation was caused by an
unconstitutional policy or custom of the corporation itself. See Shields v. Illinois Dep't of Corr.,
746 F.3d 782, 789 (7th Cir. 2014). Plaintiff alleges that Defendant Wexford has denied him
access to medical tests that are necessary to adequately treat his stomach condition. If Plaintiff’s
allegation that Wexford’s decision amounted to a policy or practice that caused an infringement
of his constitutional rights, Plaintiff may be able to establish deliberate indifference on the part of
Wexford. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004).
Accordingly, the claim against Defendant Wexford Health Sources will not be dismissed at this
point in the litigation.
Plaintiff also names Defendant Ritz, a doctor employed by Wexford, but does not explain
what role Defendant Ritz played in denying Plaintiff medical treatment. As far as the Court can
tell, Defendant Ritz is not mentioned in any of the accompanying exhibits. According to the

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nursing supervisor’s response to Plaintiff’s grievance, it was Defendant Wexford Health Services
who denied the referral for additional medical tests. Merely invoking the name of a potential
defendant is not sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d
331, 334 (7th Cir. 1998). Therefore, Defendant Ritz shall be dismissed without prejudice at this
time.
Finally, for purposes of injunctive relief, Plaintiff has named Kim Butler as a Defendant,
but only in her official capacity as Warden of Menard. Typically, in a claim for injunctive relief,
the government official who is responsible for carrying out the requested relief would be named
as a defendant in his or her official capacity. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th
Cir. 2011). In the context of prison litigation, the official is usually the warden of the institution
where the inmate is incarcerated. See Delaney v. DeTella, 256 F.3d 679, 687 (7th Cir. 2001)
(warden could be liable for injunctive relief relative to a prison policy imposing an
unconstitutional condition of confinement). Therefore, Plaintiff may proceed on his claim for
injunctive relief against Defendant Butler, in her official capacity as Warden of Menard.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed on his Eighth Amendment claim
for damages against Defendant WEXFORD HEALTH SERVICES and his claim for injunctive
relief against Defendant BUTLER, in her official capacity as Warden of Menard.
IT IS FURTHER ORDERED that Defendant RITZ is DISMISSED from this matter
without prejudice.
The Clerk of Court shall prepare for Defendants WEXFORD HEALTH SERVICES
and BUTLER: (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,

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a copy of the 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 a United States
Magistrate Judge for further pre-trial proceedings.

Further, this entire matter shall be

REFERRED to a United States Magistrate Judge for disposition, pursuant to Local Rule

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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, even if his application
to proceed in forma pauperis is 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 17, 2015

s/J. Phil Gilbert
United States District Judge

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