Floyd v. Wexford Health Sources, Inc. et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/11/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS LAWRENCE FLOYD,
# R-61584,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
and DR. BHARAT SHAH,
Defendants.

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Case No. 15-cv-429-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Thomas Floyd, an individual currently incarcerated at Southwestern Illinois
Correctional Center (“Southwestern”), brings this pro se civil rights action pursuant to 42 U.S.C.
§ 1983. He claims that Defendants were deliberately indifferent to his serious and painful
medical condition.
According to the complaint, while Plaintiff was incarcerated at Stateville Correctional
Center (“Stateville”) in March 2014, he suffered a cut on his right ankle while working at his
prison job (Doc. 1, p. 4). The doctor on duty at the Stateville Health Care Unit (who was an
employee of Defendant Wexford Health Sources) promptly treated Plaintiff. An x-ray and
culture were performed, and Plaintiff was prescribed daily dressing changes for the wound. But
the ulcer on Plaintiff’s ankle refused to heal.

Several doctors at Stateville tried various

treatments over the ensuing months, which Plaintiff does not detail.
On October 1, 2014, Plaintiff saw the Medical Director for Defendant Wexford Health
Sources (“Wexford”) at Stateville.

He prescribed a stronger antibiotic and different pain

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medication, which helped Plaintiff. He also told Plaintiff that he needed surgery on the ankle to
remove one or two screws that had been previously implanted in his leg, because these were
causing the infection.

About a week later, Plaintiff learned that Midland Ortho (where

apparently the surgery would have been performed) would no longer accept patients from
Stateville. On October 15, 2014, Plaintiff was transferred to Southwestern.
At Southwestern, Plaintiff was not given his prescribed pain medication. Defendant Dr.
Shah (or Shaw) 1 also took away the antibiotics that Plaintiff had been prescribed at Stateville
(Doc. 1, p. 5). Defendant Shah ordered Plaintiff to be treated daily by the nurses, who were to
clean and bandage his ankle wound. Plaintiff reported that under this treatment, his pain was
getting a lot worse, but his complaints were ignored. Four different times, Defendant Shah took
Plaintiff off the daily treatment line. Each time, Plaintiff went to see Defendant Shah and
explained that he was supposed to have surgery before his transfer, the surgery had not been
performed, and his pain was becoming unbearable. Defendant Shah continued to deny the
surgery, however, and he gave Plaintiff no treatment other than the wound care and dressing
changes.
Plaintiff filed grievances in January 2015. He was finally seen by a different doctor in St.
Louis on March 2, 2015. This doctor performed an x-ray and told Plaintiff that he would need
surgery to remove the eight-inch plate and all screws from his leg, because his bacterial infection
had spread under the plate and into the surrounding area of his leg.
Plaintiff states that he will now be having this surgery. In this action, he seeks to recover
damages for the pain and suffering he endured during the time (over one year) that he was forced
to wait for proper treatment of his injury and infection.
1

Plaintiff identifies this Defendant as “Dr. Bharat Shah” in the case caption (Doc. 1, p. 1), but on all other
pages of the complaint, he refers to him as “Dr. Shaw” (Doc. 1, pp. 2, 5). It is apparent that both
references are to the same individual. For simplicity, the Court shall refer to this Defendant as “Shah.”

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Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has articulated a
colorable federal cause of action against Defendant Shah for deliberate indifference to his
medical needs (Count 1). Plaintiff’s allegations do not support a deliberate indifference claim
against Defendant Wexford Medical Sources (Count 2), however, and that claim shall be
dismissed without prejudice.
Count 1 – Deliberate Indifference to Serious Medical Needs – Defendant Shah
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that he (1) suffered from an objectively serious medical condition; and (2) that the
defendant was deliberately indifferent to a risk of serious harm from that condition.

An

objectively serious condition includes an ailment that significantly affects an individual’s daily
activities or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997).
“Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and either acts or fails to act in disregard of that risk.
Delaying treatment may constitute deliberate indifference if such delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)
(internal citations and quotations omitted). See also McGowan v. Hulick, 612 F.3d 636, 640 (7th
Cir. 2010) (discussing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Gayton v. McCoy, 593
F.3d 610, 619 (7th Cir. 2010); Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir. 2007) (“a

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plaintiff’s receipt of some medical care does not automatically defeat a claim of deliberate
indifference if a fact finder could infer the treatment was ‘so blatantly inappropriate as to
evidence intentional mistreatment likely to seriously aggravate’ a medical condition”)). The
Seventh Circuit also has found that an Eighth Amendment claim may be stated where a prison
doctor persists in a course of treatment known to be ineffective, fails to order further testing, or
refuses to refer the inmate to a specialist. Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005)
(doctor continued ineffective treatment and refused to order endoscopy or specialist referral over
a two-year period during which plaintiff suffered from ulcer).
The complaint sufficiently alleges that Plaintiff’s ankle injury and persistent infection
was a serious, painful medical condition. Further, the facts suggest that Defendant Shah’s
refusal to authorize surgery, and his ineffective and intermittent course of treatment, prolonged
Plaintiff’s suffering and may well have caused Plaintiff’s infection to worsen. Accordingly, the
deliberate indifference claim in Count 1 against Defendant Shah shall proceed for further
review.
The Court notes, however, that the period of time when Plaintiff was under the care of
Defendant Shah began only with his transfer to Southwestern in October 2014. Any violation of
Plaintiff’s constitutional rights that may have occurred at Stateville between March and October
15, 2014, cannot be attributed to Defendant Shah.
Dismissal of Count 2 – Defendant Wexford
Defendant Wexford Health Care Services is a corporation which employs Defendant
Shah and provides medical care at the prison. Defendant Wexford also employed the doctors
who cared for Plaintiff during his confinement at Stateville. But Defendant Wexford cannot be
held liable solely on that basis. A corporation can be held liable for deliberate indifference only

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if it had a policy or practice that caused the alleged violation of a constitutional right. Woodward
v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). See also Jackson v. Ill. MediCar, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002) (private corporation is treated as though it were
a municipal entity in a § 1983 action).
In the complaint, Plaintiff does not allege that Defendant Shah, or any other individual
medical provider, acted or failed to act as a result of an official policy espoused by Defendant
Wexford.

Accordingly, Count 2 against Defendant Wexford shall be dismissed without

prejudice at this time.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
Disposition
COUNT 2 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted. Defendant WEXFORD MEDICAL SOURCES, INC., is DISMISSED
from this action without prejudice.
The Clerk of Court shall prepare for Defendant SHAH: (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 appropriate 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, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson for disposition, pursuant to Local Rule 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, notwithstanding that
his application to proceed in forma pauperis has been 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

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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: May 11, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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