Boothe v. Wexford Health Sources Inc. et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 3/13/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERIC L. BOOTHE, #N95190,
Plaintiff,
vs.
DR. AFLON DAVID and
WEXFORD HEALTH SOURCES, INC.,
Defendants.

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Case No. 3:15-cv-00192-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Eric Boothe is currently incarcerated at the Sheridan Correctional Center in
Sheridan, Illinois, but was previously incarcerated at Shawnee Correctional Center in East
Vienna, Illinois, up to at least 2012. (Doc. 1 at 1 & 5.) Proceeding pro se, Boothe alleges that he
was provided with inadequate care for his hemorrhoid condition by Dr. David during his time at
Shawnee, and he brings a civil rights claim pursuant to 42 U.S.C. § 1983 against Dr. David,
along with state law claims of negligence and intentional infliction of emotional distress. (Id. at
1 & 5.) He also names David’s employer, Wexford Health Sources, Inc., as a Defendant. (Id. at
1.)
This matter is now before the Court for a preliminary review of Boothe’s complaint
pursuant to 28 U.S.C. § 1915A. Under 28 U.S.C. § 1915A, the Court shall review a “complaint
in a civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a government entity.” During this preliminary review, the court “shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint,” if the complaint “is

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frivolous, malicious, or fails to state a claim on which relief may be granted” or if it “seeks
monetary relief from a defendant who is immune from such relief.”
Procedural History
According to Boothe’s complaint, since May 2008, he has suffered from hemorrhoid
problems that have required ongoing medical attention. (Id. at 5.) According to the exhibits
attached to Boothe’s complaint, up until January 2011, Boothe was taking Metamucil for his
hemorrhoids. (Doc. 1-2 at 4.) In June 2011, he was seen by Dr. David, a physician working for
Wexford who provided care to prisoners at Shawnee. (Id.) When he began seeing Dr. David,
Boothe complained about his hemorrhoids and about the prison’s soy diet, which Boothe claimed
aggravated his hemorrhoids and caused him “very strenuous bowel movements.” (Doc. 1 at 5.)
At some point in 2011, Dr. David took Boothe off of Metamucil and placed him on milk of
magnesia, and he allegedly did not take any steps related to Boothe’s diet complaints. (Id.)
In February 2012, Boothe saw a nurse for complaints of dizziness and was ultimately
treated by Dr. David again. (Id.) Boothe informed Dr. David of his ongoing hemorrhoid issues;
he was told to “drink more water and increase [his] salt intake.” (Id.) Boothe asserts that Dr.
David refused to acknowledge Boothe’s significant hemorrhoid problems, and he did not reissue
Metamucil or otherwise treat Boothe’s “serious bleeding” at that time. (Id.)
On March 2, 2012, Boothe visited the Health Care Unit at Shawnee again, and Dr. David
was contacted concerning rapid changes in Boothe’s vital signs. (Id.) Boothe was placed on 23
hour observation at that time, which was extended on March 4, 2012. (Id.) On March 6, 2012, it
was discovered that Boothe had severe anemia, which he claims was caused by a lack of
adequate treatment by Dr. David and Wexford. (Id.) Shortly thereafter, he was transferred to
Heartland Regional Medical Center in Marion, Illinois, where he received blood transfusions and

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surgery for his hemorrhoids. (Id.) He was returned to Shawnee’s Health Care Unit on March 14,
2012. (Id.) At that time, Boothe claims that Dr. David “finally treat[ed]” him for his hemorrhoid
condition, but only with stool softeners “for a very short time.” (Id.) While his complaint is
unclear, he appears to claim that Dr. David still refuses to give him Metamucil or alter his soy
diet. (Id.) Boothe also claims that he is still “suffering from bleeding all this time.” (Id.)
On February 23, 2015, Boothe filed a § 1983 complaint in this Court. (Id. at 1.)
Discussion
Read liberally, Boothe’s complaint alleges that Dr. David failed to adequately treat his
hemorrhoid condition, that he suffered harm based on the delay in treatment, and that he
continues to suffer damages from this failure to treat. (Id. at 5.) Boothe raises claims against Dr.
David under 42 U.S.C. § 1983 for deliberate indifference to his medical condition, as well as
state law claims for “negligence” and intentional infliction of emotional distress. (Id. at 1.)
Boothe also names Wexford Health Sources as a Defendant, and in doing so appears to bring a
§ 1983 claim against it as well, without providing any specifics as to Wexford’s conduct. (Id.)
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8 and 10, the Court finds it
appropriate to break the claims in Boothe’s pro se complaint into numbered counts, as shown
below. The parties and the Court will use these designations in all future pleadings and orders,
unless otherwise directed by the Court. The designation of these counts does not constitute an
opinion as to their merit.
COUNT 1:

Dr. David and Wexford Health Sources were deliberately
indifferent to Boothe’s serious medical needs, in violation of the
Eighth Amendment.

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COUNT 2:

Dr. David’s treatment of Boothe’s hemorrhoid condition
constituted intentional infliction of emotional distress under
Illinois law.

COUNT 3:

Dr. David’s treatment of Boothe’s hemorrhoid condition
constituted medical negligence under Illinois law.

Concerning Boothe’s § 1983 claim against Dr. David, to prevail on this Eighth
Amendment claim, Boothe must show “that the responsible prison officials were deliberately
indifferent to his serious medical needs.” Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000).
Evaluating whether a party has alleged deliberate indifference involves a two-part inquiry: the
plaintiff must first show that his condition “was objectively serious,” and must then demonstrate
that “state officials acted with deliberate indifference to his medical needs.” Id.
For screening purposes, Boothe’s complaint alleges the existence of an objectively
serious medical need.

An objectively serious need is “one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th
Cir. 2001). Factors that indicate a serious need include “the existence of an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.
1997). Here, Boothe’s hemorrhoid condition, which led to hospitalization and surgery, qualifies
as a serious need for screening purposes. Jones v. Natesha, 151 F. Supp. 2d 938, 944 (N.D. Ill.
2001) (aggravated hemorrhoid condition was sufficiently serious for § 1983 claim).
While it is a closer question, Boothe’s complaint also alleges the existence of deliberate
indifference. To be sure, deliberate indifference is a robust state of mind requirement: a prisoner
must allege that a prison official acted intentionally or in a criminally reckless manner –
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negligence (or even gross negligence) is not sufficient. Farmer v. Brennan, 511 U.S. 825, 837
(1994). In this vein, allegations from a prisoner claiming that he is generally dissatisfied with his
treatment or that he disagrees with the physician concerning proper treatment do not rise to the
level of deliberate indifference.

Snipes v. DeTella, 95 F.3d 586, 591-92 (7th Cir. 1996).

However, “the Constitution does guarantee that a prisoner will not knowingly be given
inadequate treatment, and deliberate indifference can arise by failure to change clearly
ineffective treatment.” Jones, 151 F. Supp. 2d at 945; see also Arnett v. Webster, 658 F.3d 742,
753 (7th Cir. 2011) (“Allegations of refusal to provide an inmate with prescribed medication or
to follow the advice of a specialist can also state an Eighth Amendment claim.”); Kelley v.
McGinnis, 899 F.2d 612, 616 (7th Cir. 1990) (prisoner could recover if he could “prove that the
clinic personnel deliberately gave him a certain kind of treatment knowing that it was
ineffective”). Reading Boothe’s complaint liberally, he has alleged deliberate indifference, and
accordingly this claim will be allowed to proceed past preliminary review.
Reading Boothe’s complaint liberally, he also appears to bring a § 1983 claim against
Wexford Health Sources. For purposes of § 1983, the courts treat “a private corporation acting
under color of state law as though it were a municipal entity,” Jackson v. Ill. Medi-Car, Inc., 300
F.3d 760, 766 n.6 (7th Cir. 2004), so Wexford will be treated as a municipal entity for this suit.
“[T]o maintain a § 1983 claim against a municipality, [a plaintiff] must establish the requisite
culpability (a ‘policy or custom’ attributable to municipal policymakers) and the requisite
causation (the policy or custom was the ‘moving force’ behind the constitutional deprivation).”
Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002) (quoting Monell v. Dep’t of Social
Servs., 436 U.S. 658, 691 (1978)). Here, Boothe has only claimed that Wexford provides general
“medical protocols and services” at Shawnee. (Doc. 1 at 1.) He has not alleged any concrete

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policy or custom attributable to Wexford, and he has not claimed that any act by Wexford led to
his alleged deprivation of rights. See Olive v. Wexford Corp., 494 F. App’x 671, 673 (7th Cir.
2012) (allegation that Wexford had a policy of “denying prison inmates adequate medical care”
insufficient, as it did not “identify any concrete policy, let alone an unconstitutional one”). As
such, any claim against Wexford must be dismissed without prejudice.
Boothe also has raised Illinois state law claims for intentional infliction of emotional
distress and medical negligence against Dr. David.

Where a district court has original

jurisdiction over a civil action, as is the case here, 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. Wisconsin v. Ho-Chunk
Nation, 512 F.3d 921, 936 (7th Cir. 2008). Both of Boothe’s Illinois state law claims concern the
same facts as his § 1983 claim, so supplemental jurisdiction over these claims is appropriate.
To bring a claim for intentional infliction of emotional distress in Illinois, a plaintiff must
allege that there was “extreme and outrageous” conduct, that the defendant intended to “inflict
severe emotional distress” or knew that there was “at least a high probability that his conduct
will cause severe emotional distress,” and that the defendant’s conduct did “in fact cause severe
emotional distress.” McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988) (emphasis in original).
Concerning the last element, Illinois courts require that the emotional distress suffered “be such
that no reasonable person could be expected to endure it.” Primm v. Cnty. of DuPage, No. 92 C
3726, 1993 WL 5931, at *9 (N.D. Ill. Jan. 6, 1993).

Even after liberally construing his

complaint, Boothe has not identified any emotional distress caused by Dr. David’s conduct, let
alone the severe distress required under Illinois law. See Gaskins v. City of Rock Island, Ill., No.
4:05-cv-04081, 2006 WL 1793578, at *6 (C.D. Ill. June 28, 2006) (noting that, even for pro se

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litigants, the “Seventh Circuit has ruled that . . . a plaintiff must show that the defendant’s actions
were objectively outrageous and the harm caused was very severe to survive a motion to
dismiss”). As such, Boothe’s claim for infliction of emotional distress must be dismissed
without prejudice. Gondeck v. Clear Title & Escrow Exch., LLC, No. 11 C 6341, 2012 WL
5200091, at *6 (N.D. Ill. Oct. 22, 2012) (dismissing complaint because Plaintiffs did not allege
that they “suffered severe emotional distress as a result of the alleged scheme”); Titus v. Ill.
Dep’t of Transp., 828 F. Supp. 2d 957, 973-74 (N.D. Ill. 2011) (dismissing pro se complaint
because Plaintiff did not allege that conduct “caused him severe emotional distress”).
Boothe has also raised a state medical negligence claim. Under Illinois law, a plaintiff
who seeks damages for “injuries or death by reason of medical, hospital, or other healing art
malpractice” must file an affidavit along with the complaint, declaring one of the following:
(1) that the affiant has consulted and reviewed the facts of the case with a qualified health
professional who has reviewed the claim and made a written report that a claim is reasonable and
meritorious (and the written report must be attached to the affidavit); (2) that the affiant was
unable to obtain such a consultation before the expiration of the statute of limitations (and in this
case, the required written report shall be filed within 90 days after the filing of the complaint); or
(3) that the plaintiff has made a request for records but the respondent has not complied within
60 days of receipt of the request (and in this case the report shall be filed within 90 days of
receipt of the records). See 735 ILCS 5/2-622(a). This documentation “is required to file a
medical negligence claim under Illinois law, even in federal court.” Rusinowski v. Vill. of
Hillside, 835 F. Supp. 2d 641, 652 (N.D. Ill. 2011). In this case, Boothe has failed to file the
documents required by 735 ILCS 5/2-622(a), and thus this claim is dismissed without prejudice.
Boothe shall be allowed to file these documents within 60 days.

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Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1 shall PROCEED
against DR. AFLON DAVID.
IT IS FURTHER ORDERED that WEXFORD HEALTH SOURCES is
DISMISSED without prejudice from COUNT 1. Because there are no further claims against it,
Defendant WEXFORD HEALTH SOURCES is DISMISSED from this action.
IT IS FURTHER ORDERED that COUNT 2 against DR. AFLON DAVID is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNT 3 against DR. AFLON DAVID is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that Plaintiff shall file the affidavit required by 735 ILCS
5/2-622(a) within 60 days (on or before May 13, 2015).
IT IS FURTHER ORDERED that Plaintiff’s Motion for Service of Process at
Government Expense (Doc. 4) is GRANTED. Service shall be ordered below for the Defendant
who remains in this action. No service shall be made on the dismissed Defendant.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendant
DAVID: (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 complaint, and this Memorandum and Order to Defendant’s place of employment as
identified by Plaintiff. If 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 steps
to effect formal service on Defendant, and the Court will require Defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.

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If the Defendant cannot be found at the 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, nor disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered) a copy of every further 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 any document was served on Defendant 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.
Defendant is 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 Donald G. Wilkerson for further pre-trial proceedings.
IT IS FURTHER ORDERED that Plaintiff’s pending Motion for Appointment of
Counsel (Doc. 3) is REFERRED to Magistrate Judge Donald G. Wilkerson for consideration.
Further, this entire matter is hereby REFERRED to a United States Magistrate Judge for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
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, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).

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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).
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 13, 2015
______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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