Linder v. Wexford Health Sources Incorporated et al

Filing 9

IT IS HEREBY ORDERED that Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that Defendant VIENNA CORRECTIONAL CENTER is DISMISSED with prejudice, and WEXFORD HEALTH SOURCES, INC. is DISMISSED without prejudice. Plaintiff is GRANTED leave to file his First Amended Complaint on or before November 13, 2015. Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice. Signed by Judge Nancy J. Rosenstengel on 10/9/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RALPH T. LINDER, Jr. # M34941,

)
)
Plaintiff,
)
)
vs.
)
)
WEXFORD HEALTH SOURCES, INC.
)
and VIENNA CORRECTIONAL CENTER, )
)
Defendants.
)

Case No. 15-cv-00992-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Ralph Linder, Jr., an inmate who is currently incarcerated at Pinckneyville
Correctional Center, brings this civil rights action pro se pursuant to 42 U.S.C. § 1983. In the
complaint, Plaintiff claims that members of the medical staff at Vienna Correctional Center
failed to properly diagnose and treat a spider bite in 2014. (Doc. 1, p. 5). Plaintiff now sues
Vienna Correctional Center and Wexford Health Sources, Inc. for denying him adequate medical
care under the Eighth Amendment. Plaintiff seeks monetary damages. Id. at 6.
Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.

Under § 1915A, the Court is required to promptly screen prisoner

complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to
dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
upon which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).

Page 1 of 7

An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
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). Upon preliminary review, the Court finds that the complaint
fails to pass muster under § 1915A and shall be dismissed.
The Complaint
During his incarceration at Vienna on August 29, 2014, Plaintiff visited the healthcare
unit (“HCU”) for treatment of a spider bite on his chest. (Doc. 1, p. 5). The treating physician
and nurses diagnosed him with a boil or an infected hair follicle. They allegedly refused to
diagnose Plaintiff with a spider bite simply because he did not bring the spider to the
appointment.

Page 2 of 7

Plaintiff returned to the HCU on November 4, 2014. Nurse Mailig examined the wound
and agreed with Plaintiff’s self-diagnosis. She also diagnosed him with a spider bite. Because of
the delay in proper diagnosis, Plaintiff did not receive timely treatment for the bite. To date, he
is still undergoing unspecified treatment.
Plaintiff now sues Vienna and Wexford for failing to properly diagnose and treat his
spider bite. He claims that the denial of adequate medical care violated his rights under the
Eighth Amendment. He seeks monetary damages. Id. at 6.
Discussion
The complaint fails to articulate a colorable Eighth Amendment claim (Count 1) against
either defendant.

Section 1983 creates a cause of action based on personal liability and

predicated upon fault; thus “to be liable under § 1983, an individual defendant must have caused
or participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809,
810 (7th Cir. 2005) (citations omitted). As a result, the doctrine of respondeat superior does not
apply to actions filed under § 1983. Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008).
Relevant to Plaintiff’s claim, the Supreme Court has recognized that “deliberate
indifference to serious medical needs of prisoners” may constitute cruel and unusual punishment
under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan,
511 U.S. 825, 837 (1994); see Erickson v. Pardus, 551 U.S. 89, 94 (2006) (per curiam). To state
a medical needs claim, a plaintiff must show that (1) the medical condition was objectively
serious, and (2) the state officials acted with deliberate indifference to his medical needs, which
is a subjective standard. Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000).
Plaintiff names only two defendants in connection with his Eighth Amendment claim,
i.e., Vienna and Wexford. He sues both for money damages. The Eleventh Amendment bars

Page 3 of 7

suits against states in federal court for money damages, however, and Vienna is a division of a
state agency, i.e., the Illinois Department of Corrections. Wynn v. Southward, 251 F.3d 588, 592
(7th Cir. 2001). As such, it is not a “person” within the meaning of the Civil Rights Act and is
not subject to a § 1983 suit. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Vienna
shall therefore be dismissed from this action with prejudice.
Plaintiff also cannot pursue a claim against Wexford simply because it “contracted to
handle healthcare for all D.O.C. facilities,” as the complaint alleges. (Doc. 1, p. 1). This theory
of liability hinges on the doctrine of respondeat superior, which is not recognized under § 1983.
Kinslow, 538 F.3d at 692; Shields v. Illinois Dep’t of Corr., 746 F.3d 782 (7th Cir. 2014).
A private corporation that contracts to provide essential government services cannot be held
liable under § 1983 unless the constitutional violation “was caused by an unconstitutional policy
or custom of the corporation itself.” Shields, 746 F.3d at 789. The complaint alludes to no
policy or custom of Wexford that resulted in Plaintiff’s denial of adequate medical care.
Wexford shall therefore be dismissed without prejudice.
Because the complaint fails to state a claim upon which relief may be granted against
either defendant, it shall be dismissed. The dismissal shall be without prejudice, however, and
Plaintiff is granted leave to file an amended complaint. If he chooses to do so, Plaintiff must file
an amended complaint that identifies the individual prison employee(s) at Vienna who were
directly, personally involved in denying him adequate medical care in violation of the
Eighth Amendment. A defendant may only be liable for deliberate indifference if he or she knew
about a substantial risk of harm to Plaintiff, yet consciously disregarded that risk. Farmer,
511 U.S. at 842; Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Negligence, or even gross
negligence, does not violate the Constitution. Davidson v. Cannon, 474 U.S. 344 (1986).

Page 4 of 7

The fact that Plaintiff may not know the exact names of the defendants does not prevent
him from pursuing claims against them. For pleading purposes, he can identify each individual
using a generic name, e.g., “Doctor John Doe,” “Nurse John Doe,” etc. See Maclin v. Paulson,
627 F.2d 83, 87 (7th Cir. 1980). He should refer to each defendant consistently in the case
caption and throughout the pleading and simply explain what each defendant did to violate his
Eighth Amendment rights.

Once he identifies each defendant by name during discovery,

Plaintiff may file a motion to substitute the proper party in place of the generic designation in the
amended complaint.
Here, the names of the healthcare providers are listed in the medical records that Plaintiff
filed with the complaint. Given this, Plaintiff may already have access to the names of each
defendant. Regardless, he must identify each (generically or specifically) and set forth exactly
what he or she did to violate Plaintiff’s rights under the Eighth Amendment. Until he does, the
Court cannot allow Plaintiff’s claim(s) to proceed.
Pending Motions
Plaintiff has filed a motion for recruitment of counsel (Doc. 3), which is hereby DENIED
without prejudice. According to the motion, Plaintiff has undertaken no efforts to find an
attorney to represent him and simply seeks representation because he is “not legally inclined” to
proceed pro se. (Doc. 3, p. 2). Should the Plaintiff try and fail to obtain representation on his
own, he may renew his request by filing a new motion that explains why he is unable to proceed
without representation in this matter.
Plaintiff has filed a motion for service of process at government expense (Doc. 4), which
is hereby held in ABEYANCE pending the Court’s receipt of an amended complaint.

Page 5 of 7

Disposition
IT IS HEREBY ORDERED that Plaintiff’s complaint (Doc. 1) is DISMISSED
without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Defendant VIENNA CORRECTIONAL CENTER
is DISMISSED with prejudice, and WEXFORD HEALTH SOURCES, INC. is
DISMISSED without prejudice.
Plaintiff is GRANTED leave to file his “First Amended Complaint” on or before
November 13, 2015. Should Plaintiff fail to file his First Amended Complaint within the
allotted time or consistent with the instructions set forth in this Order, the entire case shall be
dismissed with prejudice. FED. R. APP. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d
1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915A.
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action. The pleading
shall present each claim in a separate count, and each count shall specify, by name, each
defendant alleged to be liable under the count, as well as the actions alleged to have been taken
by that defendant. Plaintiff should attempt to include the facts of his case in chronological order,
inserting each defendant’s name where necessary to identify the actors. Plaintiff should refrain
from filing unnecessary exhibits.

Plaintiff should include only related claims in his new

complaint. Claims found to be unrelated to the medical needs claim (Count 1) will be severed
into new cases, new case numbers will be assigned, and additional filing fees will be assessed.
To enable Plaintiff to comply with this order, the CLERK is DIRECTED to mail Plaintiff a
blank civil rights complaint form.

Page 6 of 7

An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file an amended complaint. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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. APP. P. 41(b).
IT IS SO ORDERED.
DATED: October 9, 2015
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

Page 7 of 7