Nunez v. Spiller et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge Staci M. Yandle on 5/28/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VICTOR NUNEZ, #K72060,
Plaintiff,
vs.
THOMAS SPILLER,
WEXFORD HEALTH SOURCES, 1
DR. VIPIN SHAH,
CHRISTINE BROWN,
DENNIS ELS, 2
K. MELVIN, and
MAJOR MALCOM,
Defendants.

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Case No. 3:15-cv-00514-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Victor Nunez is currently incarcerated at the Pinckneyville Correctional Center
in Pinckneyville, Illinois. (Doc. 1 at 1.) Proceeding pro se, Nunez has filed a civil action
pursuant to 42 U.S.C. § 1983, alleging that various prison staff and the entity contracted to
provide medical care to prisoners in Illinois have been deliberately indifferent to his chronic eye
condition since February 2014. (Id. at 1 & 6.) Nunez seeks nominal damages, money damages,
and injunctive relief in the form of treatment for his medical problem. (Id. at 10.)
This matter is now before the Court for a preliminary review of Nunez’s complaint
pursuant to 28 U.S.C. § 1915A. Under 28 U.S.C. § 1915A, the Court shall review a “complaint

1

Nunez named “Wexford Health Source” as a defendant, but the proper name for the entity is
Wexford Health Sources. The CLERK is DIRECTED to correct the caption accordingly.
2

Nunez’s caption looks as if it spells Els’ name as Elsad, but the remainder of his complaint –
along with the exhibits attached thereto – indicate the correct spelling is Els. The CLERK is
hereby DIRECTED to correct the caption to reflect the correct spelling of Els’ name.
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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 under § 1915A, the court
“shall identify cognizable claims or dismiss the complaint, or any portion of the complaint,” if
the complaint “is 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.”
Background
This case concerns Nunez’s eye care – or the alleged lack thereof – at Pinckneyville
Correctional Center. Nunez first saw Dr. Els, an eye doctor at Pinckneyville, on February 26,
2014. (Id. at 6.) During that visit, Nunez told Els that he suffered from a condition called
keratoconus, a disorder that occurs when the normally round cornea (the front part of the eye)
becomes thin and cone shaped. (See id.) Nunez informed Els that physicians at other prisons
treated his condition with hard contacts, soft contacts, three solutions to clean his contacts, and a
biennial referral to a specialist to avoid complications. (Id.) Els purportedly told Nunez that he
“wasn’t gonna get any of [that] treatment in [Pinckneyville]” and sent Nunez on his way. (Id.)
From February 2014 to May 2015, Nunez’s eye condition allegedly worsened:

he

suffered “extra irritation and infections in [his] corneas” and developed “scar tissue” in his eyes
due to “being forced to wear the hard contacts without protection from the soft contact lenses.”
(Id. at 7.) As his condition worsened, Nunez “beg[ged]” Els and Brown, the health care unit
administrator, for his “soft contact lenses,” but was told by Els to “deal with it.” (Id.) Els also
told Nunez that he would have to “wear the hard contacts alone,” and that he would not “renew
any of [the] treatment” employed by physicians at other institutions. (Id.) As a result, Nunez
says he has suffered increased pain and other problems with his eyes. (Id. at 8.)

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Nunez claims he filed a grievance with officials at the prison, but was denied. (Id. at 5.)
Unsatisfied with the prison’s response, Nunez filed a § 1983 suit in this Court on May 6, 2015.
Discussion
Nunez’s complaint focuses on individual capacity claims against Els, Brown, Shah, and
other non-medical officials for failure to treat his eye condition, so the Court will start with those
claims (Count 1). To put forth a viable individual capacity claim under the Eighth Amendment
for improper medical care, Nunez must first show that that he suffered from an “objectively
serious” condition, and must then allege that each of the named defendants “acted with deliberate
indifference” to that condition. Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000).
For screening purposes, Nunez has cleared the first hurdle – he has alleged the existence
of an objectively serious medical condition. An objectively serious condition 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 condition 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, Nunez says he has been suffering from keratoconus since 2008 and
that it has deteriorated since his arrival at Pinckneyville, causing him visual problems, pain, and
infections. That is enough to plead a serious condition for purposes of preliminary review.
While it is a closer question, Nunez’s complaint also alleges deliberate indifference by
Els related to his eye condition. To be sure, deliberate indifference is a robust state of mind
requirement: a prisoner must allege that an official acted intentionally or in a criminally reckless
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manner to state a claim – “medical malpractice, negligence, or even gross negligence” will not
do. Johnson v. Doughty, 433 F.3d 1001, 1012-13 (7th Cir. 2006). Because medical malpractice
does not equate to a constitutional violation, 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 state a claim. Snipes v. DeTella, 95 F.3d 586, 591-92 (7th Cir. 1996).
That said, deliberate indifference might exist if a medical provider refuses “to provide an inmate
with prescribed medication,” refuses to “follow the advice of a specialist,” or persists with “a
course of treatment that [the medical provider] knows is ineffective.” Arnett v. Webster, 658
F.3d 742, 754 (7th Cir. 2011). Here, Nunez alleges that Els deprived him of treatment prescribed
by other physicians and that he was denied corrective treatment when his condition worsened.
This is sufficient to allege deliberate indifference as to Els, so Count 1 may proceed against him.
Nunez has also named Brown, the health care administrator at the prison, and Shah, the
medical director, in his deliberate indifference claim. His allegations against these two are thin,
but his claim can proceed if he pleads personal involvement by both in his treatment. Munson v.
Gaetz, 673 F.3d 630, 637 (7th Cir. 2012). For Brown, Nunez claims he “beg[ged]” her for help,
but was ignored. (Doc. 1 at 7.) Especially in light of her role as administrator, this is sufficient
to allege Brown’s personal involvement at the pleading stage. See Myrick v. Anglin, 496 F.
App’x 670, 675 (7th Cir. 2012) (holding that it was improper to dismiss healthcare administrator
from case, as prisoner “complained to her directly about the medical staff’s” failure to treat and
her “position justifie[d] the inference that she bore some responsibility”). For Shah, Nunez says
next to nothing, only claiming in the grievance section of his complaint that the director denied
him treatment. (Doc. 1 at 5.) However, given Shah’s position as director, this is just enough to
state a claim against him for threshold review purposes. See Williams v. Faulkner, 837 F.2d 304,
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308 (7th Cir. 1988) (personal involvement of administrator could be inferred in case alleging
failure to provide treatment by another doctor, as administrator had a responsibility to ensure that
prisoners receive “adequate medical care”). So Count 1 may proceed against Brown and Shah.
Leaving no stone unturned, Nunez has also named three non-medical officials in his
deliberate indifference claim, specifically Warden Spiller, Grievance Officer Melvin, and Major
Malcom. As was the case with Shah, Nunez says nothing about these defendants in the narrative
of his complaint, only mentioning them briefly in the section on the prison’s grievance
procedure. (Doc. 1 at 5.) Nunez might be alleging that these officials were indifferent because
they denied his grievance, but the mere denial of a grievance, on its own, is not a constitutional
violation. See George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (“Ruling against a prisoner on
an administrative complaint does not cause or contribute to a [constitutional] violation.”).
To be sure, non-medical officials “cannot simply ignore an inmate’s plight.” Arnett, 658
F.3d at 755. If they fail to refer a prisoner for treatment after receiving a grievance, or once
referred “condone[] or approve[]” prison medical staff’s “refusal to provide” treatment, then they
might be liable, depending on the severity of the prisoner’s condition. Id. at 755-56; see also
Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008) (non-medical officers can be “chargeable”
with “deliberate indifference” where they “have a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner”). But Nunez does
not allege anything like that in his complaint here – he does not say much of anything as to these
specific defendants at all – so Count 1 must be dismissed as to Spiller, Melvin, and Malcom
without prejudice. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (affirming
dismissal of grievance-related official because prisoner did not “allege any specific involvement”
by that party in his treatment). Nunez is free to file an amended complaint to explain how these
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individuals’ were involved in the denial of care if he wishes. Any amended complaint must
stand on its own, and must also abide by Federal Rule of Civil Procedure 15. 3
Reading Nunez’s complaint liberally, he also brings a § 1983 claim against Wexford
Health Sources (Count 2). 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, Nunez has not alleged any policy or custom attributable
to Wexford. He only claims that his pain was inflicted “at the hands” of Wexford, but that is not
enough to state a claim. 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”).
Accordingly, Count 2 against Wexford must be dismissed without prejudice.
One final note concerning the relief sought by Nunez. Nunez seeks injunctive relief in
the form of treatment for his condition, so the warden of Pinckneyville is a proper defendant, as
he “would be responsible for ensuring that any injunctive relief is carried out.” Gonzalez, 663
F.3d at 315. Accordingly, Warden Spiller will remain in this suit in his official capacity only.
3

Rule 15 permits a party to file an amended complaint “once as a matter of course” within 21
days of service or, “if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsible pleading or 21 days after service of a motion under Rule 12(b), (e),
or (f), whichever is earlier.” FED. R. CIV. P. 15(a)(1). All other amendments must be with the
opposing party’s consent or with leave of court. FED. R. CIV. P. 15(a)(2).
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Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1 shall PROCEED
against ELS, BROWN, and SHAH in their individual capacities. COUNT 1 is DISMISSED
without prejudice as to SPILLER, MELVIN, and MALCOM in their individual capacities.
COUNT 1 shall proceed against SPILLER in his official capacity only, for the limited purpose
of ensuring that possible injunctive relief is carried out. Because there are no further claims
against them, MELVIN and MALCOLM are dismissed from this suit without prejudice.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without prejudice.
Because there are no further claims against it, WEXFORD HEALTH SOURCES is
DISMISSED from this suit without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Service of Process at
Government Expense (Doc. 4) is GRANTED. Service shall be ordered as indicated below.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants ELS,
BROWN, SHAH, and SPILLER (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
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.
IT IS FURTHER ORDERED that, 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
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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.
IT IS FURTHER ORDERED that 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.
Defendants are ORDERED to timely file appropriate responsive pleadings to the
complaint and shall not waive filing replies 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 Philip M. Frazier for further pre-trial proceedings.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Recruitment of Counsel (Doc.
3) is REFERRED to United States Magistrate Judge Philip M. Frazier for consideration.
Further, this entire matter is hereby REFERRED to United States Magistrate Judge
Philip M. Frazier 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).
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).
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 28, 2015
s/ STACI M. YANDLE
Judge Staci M. Yandle
United States District Judge

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