Espinoza v. Godinez et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 7/13/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARLOS E. ESPINOZA, # B-44844,
Plaintiff,
vs.
SALVADOR A. GODINEZ,
DANIEL CONN, LOUIS SHICKER,
NEDRA CHANDLER, DR. MESROBIAN,
DR. ALBERSE, RITA THOMPSON,
LT. JUSTICE, ALLAN MARTIN,
DR. DAVID, SHERRI LYNN,
THOMAS SPILLER,
CHRISTINE BROWN, VIPIN K. SHAH,
LT. HUNTER, UNKNOWN PARTIES,
and COLGAN,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 15-cv-639-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff,

currently

incarcerated

at

Pinckneyville

Correctional

Center

(“Pinckneyville”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. He
raises claims of deliberate indifference to a serious medical condition against Defendants in three
state prisons where he has been confined (Dixon Correctional Center, Shawnee Correctional
Center, and now Pinckneyville). Plaintiff is serving a 30-year sentence for murder as well as
sentences on three other convictions. This case is now before the Court for a preliminary review
of the complaint pursuant to 28 U.S.C. § 1915A.
At the time Plaintiff’s initial claims arose, he was incarcerated at Dixon. On June
1, 2009, he got into an altercation with another inmate and injured his knee. It was later
determined that he had suffered a complete rupture of his ACL. On the way to segregation
Page 1 of 23

following the incident, Plaintiff asked for medical attention for his injury, but Defendant Lt.
Justice denied that request (Doc. 1, p. 9). Other correctional officers continued to ignore his
requests to see a doctor. 1 Plaintiff was given only one Ibuprofen tablet, which did not relieve his
pain.
On June 8, 2009, Defendant Colgan (a physician’s assistant) ordered an x-ray of
Plaintiff’s knee. She prescribed him some pain medication, but it was not consistently given to
him. His next health care visit was on June 29, 2009, at which time Defendant Thompson (a
nurse) told him the x-ray was negative (Doc. 1, p. 11; Doc. 1-2, pp. 12-15). Plaintiff pointed out
the continued pain and swelling in his knee, and stated his belief that he had suffered tissue
damage. Defendant Thompson told Plaintiff he would not be given an MRI because of the high
cost. She continued his pain medication but said he could not have anything stronger.
On July 10, 2009, Plaintiff complained to Defendant Thompson that his pain
medication had been discontinued. He asked for crutches; she informed him that only the doctor
could prescribe them, and he had a doctor’s appointment for July 15. He did not see the doctor
on that date, however,
On July 16, 2009, Plaintiff again saw Defendant Colgan, who told him that his
knee was swollen due to fluid retention. She attempted to extract the fluid via a needle inserted
under Plaintiff’s kneecap. After the fourth attempt, Plaintiff asked her to stop because he could
not take the pain (Doc. 1, p. 12). Defendant Colgan then concluded there had been no fluid in
the knee. Plaintiff continued to seek treatment from unspecified medical staff, and was told by a
nurse that he was scheduled to see the doctor on August 11.
On July 24, 2009, Plaintiff spoke personally to Defendant Chandler (warden of
Dixon), and explained that his requests for medical care had been continually ignored since his
1

The complaint contains no indication that Plaintiff intended to bring suit against these unnamed officers.
Page 2 of 23

June 1 injury. He showed Defendant Chandler his swollen knee. She “immediately” had
Plaintiff seen by Defendant Dr. Mesrobian, who ordered another x-ray and prescribed crutches,
based on his assessment that Plaintiff may have suffered bone trauma and tissue damage (Doc. 1,
p. 14).
The new x-ray showed no broken bones. Defendant Mesrobian placed Plaintiff in
the infirmary for further observation on approximately July 28.

Another prison doctor,

Defendant Alberse, opined that Plaintiff may have suffered cartilage and nerve damage; he told
Plaintiff on August 3 that he would order an MRI. Defendant Mesrobian took Plaintiff off the
pain medication and put him on nerve medication. On August 10, 2009, Defendant Mesrobian
discharged Plaintiff from the infirmary. He denied Plaintiff’s request to be placed back on pain
medication, and denied his request to be fed in his cell so he could avoid the painful walk to the
chow hall (he was still on crutches). Plaintiff was discharged and placed on a unit farthest from
the chow hall. An officer allowed him to be moved to segregation to shorten his walk.
On September 29, 2009 (nearly four months after the injury), Plaintiff was finally
sent to the University of Illinois for his MRI. This test showed he had a “complete rupture with
scar tissue formation of the ACL” as well as contusions and mild ligament sprains (Doc. 1, p. 17;
Doc. 1-2, pp. 16-17). The orthopedic specialist ordered “extensive physical therapy” (“PT”) for
7-8 weeks, to be followed up with a consultation regarding possible surgery. Plaintiff did not
make it to all his therapy sessions, however, because unidentified correctional officers 2 refused
to take him from segregation (where he was again housed) to PT sessions (Doc. 1, p. 17). He
never had the follow-up surgical consultation.
On January 8, 2010, Plaintiff was transferred to Shawnee Correctional Center

2

These correctional officers are not named as Defendants, nor does the complaint indicate that Plaintiff
intended to bring claims against them.
Page 3 of 23

(“Shawnee”). He notes that unnamed prison officials at Dixon failed to put a “medical hold” on
him so that the transfer would not interfere with his prescribed treatment. 3
Soon after Plaintiff’s arrival at Shawnee, he saw Defendant Dr. David, and
requested the recommended physical therapy. However, Defendant David refused to order PT
and would not return Plaintiff to the University of Illinois for any follow-up treatment or
consultation. Between January 11, 2010, and October 31, 2012, Plaintiff continued to renew his
requests for treatment, because he re-injured the knee, had problems walking, and still had
occasional pain. However, Defendant David refused to send Plaintiff to an outside specialist or
to provide any PT. Plaintiff filed grievances against Defendant David, the Shawnee nurses, and
Defendant Lynn (the Shawnee Health Care Unit Administrator) for denying him proper medical
care (Doc. 1, p. 19). Referring to an attached grievance summary, Plaintiff further claims that
Defendant Lt. Hunter interfered with his supervised physical therapy treatment at Shawnee (Doc.
1, p. 38; Doc. 1-2, p. 43).

This document indicates that Plaintiff had been scheduled by

Defendant David to come to the Health Care Unit to be supervised by the nursing staff while he
did his physical therapy exercises.
Plaintiff was transferred to Pinckneyville on an unspecified date.

He has

consulted Defendant Dr. Shah, asking to be sent to an outside specialist. However, Defendant
Shah told Plaintiff there was nothing else he could do (Doc. 1, p. 20). Likewise, Plaintiff
informed the Pinckneyville physical therapist (Unknown Party Defendant John Doe #2; see Doc.
1, p. 4)) of all the complications he continues to have from the knee injury; he also told Plaintiff
there was nothing he could do. Plaintiff wrote to Health Care Unit Administrator Defendant
Brown to complain about Defendant Shah’s failure to give him proper medical care; Defendant
3

Plaintiff does not say whether any of the named Defendants were responsible for this failure, nor does he
indicate an intent to bring a claim against any other person in connection with the failure to place him
under “medical hold.”
Page 4 of 23

Brown never responded. A similar complaint to Defendant Spiller (Pinckneyville Warden) also
failed to elicit any response.
According to Plaintiff, the “prolonged lack of treatment” for his knee injury has
resulted in his inability to walk without pain and discomfort. He fears that any time he is
walking, his leg may “give out on him” at any moment (Doc. 1, p. 23). The diagnosed rupture of
his ACL has not been repaired, and he will require costly corrective surgery as well as
medication and physical therapy.
Plaintiff asserts claims of deliberate indifference to his serious medical needs
against the above Defendants. His sole request for relief is for an award of compensatory
damages (Doc. 1, pp. 24, 26, 41). Besides the Defendants named above, he includes as parties
the warden of Shawnee (Defendant Martin) and the Dixon Health Care Unit Administrator
(Unknown Party Defendant John Doe #1).
Additionally, he brings claims against Defendants Godinez (IDOC Director),
Conn (Executive of Wexford Health Sources, which provides health care to Illinois prisoners),
Julie Hamos 4 (Director of the Illinois Department of Healthcare and Family Services), and
Shicker (IDOC Medical Director). Defendants Godinez and Hamos entered into a contract with
Wexford Health Sources (“Wexford “) and Defendant Conn, under which adequate medical
treatment was to be provided to Plaintiff and other inmates, in accordance with medically
accepted standards of care. Plaintiff did not receive proper care. Defendant Godinez should
have terminated the contract with Wexford. Defendant Conn and his agents, employees, and/or
subcontractors failed to give Plaintiff adequate medical care in compliance with the contract.

4

Plaintiff omitted Defendant Julie Hamos from his case caption and initial list of Defendants (Doc. 1, pp.
1-5), but includes her in his summary of claims against the Defendants (Doc. 1, p. 27, 30-32). Because it
appears that Plaintiff intended to include Julie Hamos as a party, the Clerk shall be directed to add her as
a Defendant.
Page 5 of 23

Defendants Hamos and Shicker likewise failed to perform the requirements of the contract (Doc.
1, pp. 28-33).
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.
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). Frivolousness is an objective standard that
refers to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton,
209 F.3d 1025, 1026-27 (7th Cir. 2000). 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 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. Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, 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).
Based on the allegations of the complaint, the Court finds it convenient to divide

Page 6 of 23

the pro se action into the following counts. The parties and the Court will use these designations
in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court.
The designation of these counts does not constitute an opinion as to their merit.
Count 1: Eighth Amendment deliberate indifference claim against Dixon
Defendant Justice, for refusing to allow Plaintiff to obtain medical attention
following his June 1, 2009, knee injury;
Count 2: Eighth Amendment deliberate indifference claim against Dixon
medical provider Defendants Colgan, Thompson, Mesrobian, Alberse, and
Unknown Health Care Unit Administrator (John Doe #1), for delaying and/or
denying treatment for Plaintiff’s knee injury, and failing to provide physical
therapy recommended by the outside specialist;
Count 3: Eighth Amendment deliberate indifference claim against Dixon
Defendant Warden Chandler, for failing to ensure that Plaintiff received proper
medical treatment;
Count 4: Eighth Amendment deliberate indifference claim against Shawnee
medical provider Defendants David and Lynn, for failing to provide treatment for
Plaintiff’s knee injury;
Count 5: Eighth Amendment deliberate indifference claim against Shawnee
Defendant Warden Martin, for failing to ensure that Plaintiff received proper
medical treatment;
Count 6: Eighth Amendment deliberate indifference claim against Shawnee
Defendant Lt. Hunter, for interfering with Plaintiff’s medical treatment;
Count 7: Eighth Amendment deliberate indifference claim against Pinckneyville
medical provider Defendants Shah, Brown, and the Unknown Party Physical
Therapist (John Doe #2) for failing to provide treatment for Plaintiff’s knee
injury;
Count 8: Eighth Amendment deliberate indifference claim against Pinckneyville
Defendant Warden Spiller, for failing to ensure that Plaintiff received proper
medical treatment;
Count 9: Eighth Amendment deliberate indifference claims against Defendants
Godinez, Conn, Schicker, and Hamos, for failing to ensure that Plaintiff received
proper medical treatment.
Accepting Plaintiff’s factual allegations as true, the Court finds that some of

Page 7 of 23

Plaintiff’s claims in Counts 1, 2, 4, and 7 shall proceed for further review. However, Counts 3,
5, 6, 8, and 9 fail to state a claim upon which relief may be granted, and shall be dismissed.
Deliberate Indifference to a Serious Medical Condition
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.
“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 Farmer v. Brennan, 511 U.S. 825, 842
(1994). The Eighth Amendment does not give prisoners entitlement to “demand specific care”
or “the best care possible,” but only requires “reasonable measures to meet a substantial risk of
serious harm.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Further, a defendant’s
inadvertent error, negligence or even ordinary malpractice is insufficient to rise to the level of an
Eighth Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th
Cir. 2008). The mere fact that a prescribed treatment has proven ineffective does not rise to the
level of deliberate indifference. Duckworth, 532 F.3d at 680.
Here, Plaintiff describes a painful knee injury that indicated a need for prompt
medical attention. Further, he was diagnosed with a ruptured ACL, and continued to experience
symptoms long after the initial injury. Based on these facts, the complaint shows that he had a
serious medical condition, and satisfies the objective component of an Eighth Amendment claim.
The remaining question is whether the various Defendants acted or failed to act with deliberate

Page 8 of 23

indifference to a known risk of serious harm from Plaintiff’s condition.
Count 1 – Dixon Defendant Justice
After Plaintiff hurt his knee on June 1, 2009, he told the officer escorting him to
segregation that he needed medical attention for the injury. That officer radioed his supervisor,
Defendant Justice, to relay the request. Defendant Justice refused to allow Plaintiff to see a
nurse or other medical provider for treatment. Plaintiff’s description indicates that Defendant
Justice was informed of Plaintiff’s condition, yet took no action to mitigate the risk to his health.
At this stage, Plaintiff has stated a deliberate indifference claim against Defendant Justice that
merits further review.
Count 2 – Dixon Medical Provider Defendants
According to the complaint, several of the Dixon Defendants provided treatment
for Plaintiff’s pain, and ordered diagnostic testing for his knee injury. Defendant Colgan ordered
an x-ray on Plaintiff’s first visit to her on June 8, and she prescribed pain medication for him.
These actions do not suggest that she was deliberately indifferent to his condition; to the
contrary, they represent appropriate steps to alleviate his pain and diagnose the nature of the
injury. Plaintiff complains that he did not consistently receive the prescribed pain medication,
but he does not attribute the interruption of his pain pills to Defendant Colgan (or to any other
named Defendant).

Defendant Colgan’s failed attempt to drain fluid from Plaintiff’s knee

likewise does not evince deliberate indifference.

Her unsuccessful treatment may have

amounted to negligence or malpractice, but it was undertaken in order to alleviate Plaintiff’s
symptoms. As noted above, ineffective treatment, error, and malpractice will not support a
constitutional claim for deliberate indifference to a serious medical need. See Duckworth, 532
F.3d at 679-80. Therefore, Plaintiff has not stated a claim upon which relief may be granted

Page 9 of 23

against Defendant Colgan, based on this conduct.
Defendant Nurse Thompson relayed Plaintiff’s x-ray results and extended his pain
medication order. She denied his request for stronger pain pills, but it is not clear whether she
had the authority to give him anything more powerful. She referred his request for crutches to
the doctor. She told Plaintiff that due to the expense, the prison would not order an MRI for him,
but this later turned out to be untrue. None of these actions suggest deliberate indifference on the
part of Defendant Thompson.
However, the lapse of time between Plaintiff’s visits to Defendant Thompson on
June 29 and July 10, 2009, and his first doctor’s appointment indicates that Defendant Thompson
did not promptly refer Plaintiff to see the doctor. 5 Her possible contribution to the delay in
treating Plaintiff’s June 1, 2009, injury could amount to deliberate indifference, thus this portion
of Plaintiff’s claim against Defendant Thompson shall receive further review.
As soon as Plaintiff saw Defendant Dr. Mesrobian, the doctor ordered a new x-ray
and gave Plaintiff crutches. He put Plaintiff in the infirmary for observation for several days.
He changed Plaintiff’s medication after the other doctor suggested Plaintiff may have suffered
nerve damage. These measures do not suggest deliberate indifference to Plaintiff’s medical
condition. Similarly, while Defendant Mesrobian denied Plaintiff’s request to be fed in his cell,
Plaintiff did not get his cell assignment (to the unit farthest from the chow hall) until later.
Defendant Mesrobian thus did not know at the time that his decision might mean that Plaintiff
had to walk a great distance to get his meals; this undermines a claim of deliberate indifference
against him for this action.
Reading the allegations liberally, it is possible that Defendant Mesrobian’s denial
5

An unidentified nurse told Plaintiff on July 23, 2009, that he was scheduled to see the doctor on August
11. Due to the intervention of Defendant Chandler, Plaintiff was able to see the doctor soon after July 24
(See Count 3 below).
Page 10 of 23

of Plaintiff’s request for pain medication upon his discharge from the infirmary could support a
deliberate indifference claim. Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). This portion
of Plaintiff’s claim may therefore go forward against Defendant Mesrobian.
Defendant Alberse, of course, informed Plaintiff on August 3 that he would order
an MRI on his knee. This test ultimately diagnosed Plaintiff’s ruptured ACL. The test was not
performed until September 29, 2009. The complaint is silent as to the reason for this further
delay, or whether any of the named Defendants might have contributed to the delay in any
fashion. None of the allegations involving Defendant Alberse suggest that he was deliberately
indifferent to Plaintiff’s serious medical condition.
Plaintiff appears to have received at least some of the physical therapy ordered by
the orthopedic specialist pursuant to the September 29 MRI, because he states that he did not
make it to “all” the sessions. However, he does not allege that any of the named Defendants
were responsible for his inability to obtain the PT. Instead, he states that unnamed correctional
officers refused to take him from segregation to the PT sessions. The Court makes no comment
on whether the actions of those officers might have amounted to deliberate indifference, because
Plaintiff did not include them as Defendants and did not indicate any intention to bring a claim
against them.
As to the recommended surgical consultation that was to follow the course of PT,
Plaintiff indicates that he was transferred to Shawnee in January 2010, before that consult could
take place. The complaint does not link any of the named Dixon Defendants to the decision to
transfer Plaintiff, the failure to put him under a medical hold, nor does it otherwise suggest that
they were deliberately indifferent to Plaintiff’s need for this follow-up consultation. Thus,
Plaintiff has failed to state a deliberate indifference claim against Defendants Colgan, Thompson,

Page 11 of 23

Mesrobian, or Alberse in connection with these matters.
Finally, Plaintiff includes the Unknown Health Care Unit Administrator at Dixon
(John Doe #1) among the Defendants (Doc. 1, pp. 2, 36). However, he never mentions this
individual in the factual allegations that make up his statement of claim (Doc. 1, pp. 9-24). He
states only that this Defendant:
Has the authority to enforce all institutional directives pertaining to medical care
and is responsible that Plaintiff received [sic] proper and effective treatment for
his injury. By failing to perform her professional capacity Defendant violated
Plaintiff’s Eighth Amendment right.
(Doc. 1, p. 36). This conclusory statement, devoid of any factual content as to what the Health
Care Administrator did or failed to do with respect to Plaintiff’s medical treatment, is insufficient
to support a claim for deliberate indifference against her. See Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009). Again, a deliberate indifference claim will only lie if a prison official knew
about the prisoner’s serious medical need, yet failed to act to mitigate a substantial risk to the
prisoner’s health. All that is required to satisfy the Eighth Amendment is a reasonable level of
medical care to avert a substantial risk of harm; a prisoner’s dissatisfaction with the quality of his
treatment will not support a deliberate indifference claim. See Ciarpaglini v. Saini, 352 F.3d
328, 331 (7th Cir. 2003); Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Further, it appears that Plaintiff seeks to hold Defendant John Doe #1 liable
merely because she held supervisory authority over the other medical-provider Defendants
named above. This he cannot do, because the doctrine of respondeat superior is not applicable
to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). A Defendant may
only be liable in a civil rights case if he or she was personally responsible for a constitutional
violation. Accordingly, the Unknown Health Care Unit Administrator at Dixon (John Doe #1)
shall be dismissed from this action without prejudice.
Page 12 of 23

To summarize, Plaintiff may proceed with his claims in Count 2 against Dixon
Defendant Thompson for delaying Plaintiff’s referral to see a prison doctor, and against Dixon
Defendant Mesrobian for denying pain-relieving medication to Plaintiff upon his discharge from
the infirmary. The claims against Defendants Colgan, Alberse, and the Unknown Health Care
Unit Administrator (John Doe #1) shall be dismissed without prejudice.
The Court notes that Defendants Thompson and Mesrobian, as well as Defendant
Justice in Count 1, are not located within the judicial district for the Southern District of Illinois.
Plaintiff is advised that as this case progresses, the Court may find it appropriate to sever the
claims against these Defendants and transfer that portion of the action to the district where they
reside. At this time, however, the surviving claims appear to be sufficiently factually linked such
that they may remain together in this action.
Dismissal of Count 3 – Dixon Defendant Chandler
In similar fashion to the conclusory statements regarding the Unknown Dixon
Health Care Administrator, Plaintiff asserts that Defendant Chandler, as the chief administrative
officer at Dixon, was “ultimately responsible” for all decisions made by the medical staff, and
was “responsible for providing treatment, care, and surgery for Plaintiff’s injury[,]” but she
denied him medical treatment (Doc. 1, p. 34). As noted above, a warden cannot be held liable in
a civil rights suit merely because she held supervisory authority over other officials who may
have violated a prisoner’s constitutional rights. Further, Plaintiff’s earlier factual statements
negate any inference that Defendant Chandler was deliberately indifferent to his serious medical
needs. To the contrary, when he told her that his requests for medical care had been ignored, she
intervened to ensure that he saw the doctor “immediately” (Doc. 1, p. 13). As such, Plaintiff
fails to state a deliberate indifference claim against her in Count 3. Defendant Chandler shall be

Page 13 of 23

dismissed from the action without prejudice.
Count 4 – Shawnee Medical Provider Defendants David and Lynn
Following Plaintiff’s transfer to Shawnee, he informed Defendant Dr. David
about his injury, and the specialist’s recommendation for physical therapy and a surgical
consultation. According to Plaintiff, Defendant David told him that he would not be sent back to
the University of Illinois, and would not receive physical therapy. However, Defendant David
did arrange for Plaintiff to go to the health care unit to do rehabilitative exercises under the
supervision of the nurses there (it was this activity that Defendant Hunter allegedly interfered
with). That prescription was clearly not Plaintiff’s preferred treatment. Defendant David did not
in fact refer Plaintiff for any follow-up consultation regarding possible surgery.
Doctors may exercise their medical judgment when deciding whether to refer a
prisoner for specialist care, and a decision not to refer will constitute deliberate indifference only
when the decision is “blatantly inappropriate.” See Pyles v. Fahim, 771 F.3d 403, 411-12 (7th
Cir. 2014) (internal citations and quotation marks omitted); Jackson v. Kotter, 541 F.3d 688,
697-98 (7th Cir. 2008). At the same time, “Allegations that a prison official refused to follow
the advice of a medical specialist for a non-medical reason may at times constitute deliberate
indifference.” Perez v. Fenoglio, __ F.3d __, No. 12-3084, 2015 WL 4092294, at *5 (7th Cir.
July 7, 2015); see also Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999) (summary judgment
inappropriate where prison doctor refused to follow specialists’ instructions regarding inmate’s
treatment).
Plaintiff also complains that between January 2010 and October 2012, while he
remained at Shawnee, he re-injured the knee and was still experiencing pain and difficulty
walking. He made multiple requests for treatment over this nearly three-year period, directed to

Page 14 of 23

Defendant David. He also complained to Defendant Lynn (Health Care Administrator) about the
deficiencies in his treatment and specifically Defendant David’s refusal to follow the orders of
the University of Illinois orthopedic specialist.
At this stage of the litigation, it cannot be determined whether Defendant David
responded appropriately to Plaintiff’s medical needs, or whether his conduct amounted to
unconstitutional deliberate indifference.

The complaint suggests that Plaintiff also made

Defendant Lynn aware of his medical needs and the lack of treatment, thus, the claim against her
is not subject to dismissal at this time. As such, Plaintiff may proceed with his deliberate
indifference claims in Count 4 against Defendants David and Lynn.
Dismissal of Count 5 – Shawnee Defendant Martin
Plaintiff’s claim against Defendant Warden Martin largely tracks his claim in
Count 3 above against Defendant Chandler. As noted in Count 3, there is no supervisory liability
in a civil rights suit, thus Plaintiff fails to state a cognizable claim against Defendant Martin on
the grounds that he was “ultimately responsible” for the safety of inmates in his institution (Doc.
1, p. 36). The only factual allegation Plaintiff includes is that Defendant Martin denied his
“grievance requesting to receive proper and effective medical treatment,” presumably against
Defendant David (Doc. 1 p. 37).
The denial of a grievance by a warden, who had no personal involvement in
determining what medical care would be rendered to the prisoner, is not sufficient grounds to
impose liability on the warden.

The alleged mishandling of grievances “by persons who

otherwise did not cause or participate in the underlying conduct states no claim.” Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See also Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001) (a defendant must be “personally responsible for the deprivation of a

Page 15 of 23

constitutional right” in order to be held liable). A supervising official may incur liability for
“deliberate, reckless indifference” only where he or she has purposefully ignored the misconduct
of his/her subordinates. Sanville, 266 F.3d at 740 (discussing Chavez v. Ill. State Police, 251
F.3d 612, 651 (7th Cir. 2001) (“The supervisors must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what they might see.”)).
Plaintiff’s factual allegations contain no indication that Defendant Martin knew
the Shawnee medical providers were exhibiting deliberate indifference to his serious medical
condition. The denial of a single grievance does not suggest deliberate, reckless indifference to
Plaintiff’s situation. For these reasons, Count 5 against Defendant Martin shall be dismissed
without prejudice.
Dismissal of Count 6 – Shawnee Defendant Hunter
Plaintiff asserts that Defendant Hunter “deliberately interfere[d] in Plaintiff’s
medical treatment” (Doc. 1, p. 38). For factual support, he refers to an attached grievance. This
document (actually the grievance officer’s summary of the matter) does not describe Defendant
Hunter’s specific conduct, but indicates that there was a misunderstanding or dispute regarding
Defendant David’s orders for Plaintiff to be brought to the Health Care Unit (“HCU”) to perform
exercises under a nurse’s supervision (Doc. 1, p. 43).

As a resolution to the grievance,

Defendant Hunter was advised that Plaintiff was scheduled to visit the HCU, but he was not to
do his exercises in the lobby or hallway area of the HCU. Instead, he was to wait until a nurse
became available to take him to a treatment room. The complaint does not include any further
factual allegations regarding this matter.
These facts do not support a deliberate indifference claim against Defendant
Hunter. Count 6 shall accordingly be dismissed without prejudice at this time.

Page 16 of 23

Count 7 – Pinckneyville Medical Provider Defendants
The complaint does not clearly state when Plaintiff was transferred to
Pinckneyville, where Defendants Dr. Shah, Health Care Administrator Brown, and the Unknown
Defendant Physical Therapist (John Doe #2) were the medical providers. Based on Plaintiff’s
attached documents, Plaintiff was apparently still housed at Shawnee as late as March 2013
(Doc. 1-2, p. 19).

He arrived at Pinckneyville sometime before September 2014, when

Defendant Brown noted that Plaintiff had been discharged by the physical therapist (presumably
John Doe #2), who had concluded that Plaintiff would no longer benefit from his treatment (Doc.
1-2, p. 20).
Plaintiff complains that he requested Defendant Shah to send him to an outside
specialist, but was refused. He informed the Defendant Physical Therapist (John Doe #2) of his
complications, but this Defendant told Plaintiff there was nothing he could do. (The exhibit
referenced above indicates that Plaintiff did, however, receive some treatment from the
Defendant Physical Therapist (John Doe #2), which ceased when his “knee strength, range of
motion, etc., was normal” (Doc. 1-2, p. 20)). Plaintiff complained to Defendant Brown that
Defendant Shah had failed to give him proper medical care, and she “ignored [his] complaints”
(Doc. 1, p. 21).
While Plaintiff cannot dictate his own treatment, the complaint as a whole shows
that he suffered a serious knee injury that ruptured his ACL. According to the specialist’s
diagnosis and recommendations, the injury should have been treated with physical therapy, and
may require surgery in order to restore Plaintiff to health. Plaintiff received some PT, but
evidently not to the degree that was recommended. He has never received any follow-up
consultation regarding the possible need for corrective surgery. He is serving a lengthy sentence,

Page 17 of 23

thus will not be able to avail himself of private medical care for many years. Given this factual
background, at this stage it would be inappropriate to dismiss the deliberate indifference claims
against Plaintiff’s current medical providers. Thus, Count 7 against Defendants Shah, Brown,
and the Unknown Party Physical Therapist (John Doe #2) shall proceed for further review.
Plaintiff shall note that before his claim can proceed against the John Doe #2 Defendant, he must
identify this person by name.
The Court observes that Plaintiff has not requested any injunctive relief in
connection with his claim. Further factual development will be necessary to determine whether
any of the Pinckneyville Defendants have exhibited deliberate indifference to Plaintiff’s medical
condition, as well as to determine whether any injunctive relief would be appropriate, should
Plaintiff request it.
Dismissal of Count 8 – Pinckneyville Defendant Spiller
Plaintiff alleges merely that he wrote to Defendant Spiller, asking him to
intervene so that Plaintiff would “receive the necessary treatment” for his condition (Doc. 1, p.
21). Defendant Spiller never responded to the letter.
For the reasons discussed in connection with Count 5, these facts are not
sufficient to support a deliberate indifference claim against Defendant Spiller. Thus, Count 8
shall be dismissed without prejudice. However, Defendant Spiller shall remain in the action as a
Defendant, in his official capacity only, as he appears to be the appropriate party to respond to
any discovery requests that Plaintiff may make in order to identify John Doe #2 (the
Pinckneyville Physical Therapist) by name. See Donald v. Cook County Sheriff's Dept., 95 F.3d
548, 555-56 (7th Cir. 1996) (collecting cases).

Page 18 of 23

Dismissal of Count 9 – Parties to Wexford Contract
Throughout Plaintiff’s description of his injury and subsequent efforts to obtain
medical care at Dixon, Shawnee, and Pinckneyville, he does not mention having any
correspondence or other contact with Defendants Godinez (IDOC Director), Conn (Wexford
Health Sources Executive – “Wexford”), Schicker (IDOC Medical Director), or Hamos (Director
of the Illinois Dept. of Healthcare and Family Services), regarding his medical condition or need
for treatment.

He makes only general claims that these Defendants had a duty to provide

effective treatment in accordance with medically accepted standards of care and the contract
between the IDOC, Department of Healthcare and Family Services, and Wexford, and that he did
not receive proper care (Doc. 1, pp. 25-26). He focuses particular attention on the contract, part
of which he includes as an exhibit (Doc. 1-2, pp. 21-38). He argues that these Defendants should
be liable for damages because they were contractually obligated to make sure Plaintiff was given
proper medical care, but he did not receive it (Doc. 1, pp. 28-33).
First, even if these Defendants ran afoul of their alleged contractual obligations,
such a breach does not translate into a constitutional violation.

Nor, as has earlier been

discussed, can any of these Defendants be held liable for the alleged deliberate indifference of
the prison employees who were under their supervision. Defendants Godinez, Conn, Schicker,
and/or Hamos may only be liable if they were personally aware of a serious, objective risk to
Plaintiff’s health, but failed to take necessary action to mitigate that risk, or if they knowingly,
purposefully ignored misconduct by their subordinates. The facts in the complaint suggest no
such thing, therefore, Plaintiff fails to state a deliberate indifference claim against any of these
Defendants.
Alternatively, a corporation such as Wexford (which employs the medical-

Page 19 of 23

provider Defendants at the various prisons where Plaintiff was held) may be held liable for
deliberate indifference 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. Medi-Car, 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). However, none of
the facts recited by Plaintiff support a policy or practice claim.
For these reasons, Count 9 and Defendants Godinez, Conn, Schicker, and Hamos
shall be dismissed without prejudice.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 2) is referred to the United
States Magistrate Judge for further consideration.
The motion for service of process at government expense (Doc. 4) is GRANTED
IN PART AND DENIED IN PART. Service shall be ordered below on those Defendants who
remain in the action. No service shall be made on the dismissed Defendants.
Disposition
The Clerk is DIRECTED to add JULIE HAMOS (Director of the Illinois
Department of Healthcare and Family Services) as a Defendant.
COUNTS 3, 5, 6, 8, and 9 are DISMISSED without prejudice for failure to state
a claim upon which relief may be granted.

Defendants GODINEZ, CONN, SHICKER,

CHANDLER, ALBERSE, MARTIN, HUNTER, COLGAN, HAMOS, and UNKNOWN
PARTY DIXON HEALTH CARE ADMINISTRATOR (JOHN DOE #1) are DISMISSED
from this action without prejudice.
With reference to the remaining claims in COUNTS 1, 2, 4, and 7, the Clerk of

Page 20 of 23

Court shall prepare for Defendants MESROBIAN, THOMPSON, JUSTICE, DAVID, LYNN,
SPILLER, BROWN, and 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
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.
Service shall not be made on the Unknown Defendant Pinckneyville Physical
Therapist (John Doe #2) until such time as Plaintiff has identified him by name in a properly
filed amended complaint. Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide the
Court with the name and service address for this individual.
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.

Page 21 of 23

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 United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 2).
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams 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 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

Page 22 of 23

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: July 13, 2015

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

Page 23 of 23