Gonzalez v. Wexford Health Care et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 10/15/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSE GONZALEZ, # K-50152,
Plaintiff,
vs.
WEXFORD HEALTH CARE,
DR. OSMUDSON,
RANDY GROUNDS,
and DR. ADAMS,
Defendants.

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Case No. 15-cv-01025-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Jose Gonzalez, an inmate who is currently incarcerated at Robinson Correctional
Center (“Robinson”), brings this civil rights action pro se pursuant to 42 U.S.C. § 1983. In the
complaint, Plaintiff claims that members of Robinson’s medical staff failed to properly diagnose
and treat his double bronchial pneumonia in 2015. (Doc. 1, p. 6). As a result, he lost most of his
right lung and suffered from prolonged and unnecessary pain. Id. at 7. Plaintiff now sues
Wexford Health Care, Warden Randy Grounds, Doctor Osmudson, and Doctor Adams for
denying him adequate medical care, in violation of the Eighth Amendment. He seeks monetary
damages. Id. at 9.
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

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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). The complaint survives preliminary review
under this standard.
The Complaint
According to the complaint, Plaintiff reported to Robinson’s Health Care Unit (“HCU”)
in early April 2015 with complaints of coughing and difficulty breathing. (Doc. 1, p. 6).
A nurse, who is not named as a defendant in this action, examined Plaintiff and said, “[T]here is
nothing wrong with you.” Id. When Plaintiff explained that it tasted “rotten” when he coughed,
the nurse asked him if he had seen a dentist. She took his $5.00 co-pay1 and gave Plaintiff cold
pills and Tylenol. Plaintiff returned to the HCU several times, with the same results.
Plaintiff’s condition continued to deteriorate, and he was taken to the HCU on a stretcher
late at night on April 21, 2015. By this time, he could hardly breathe. Doctor Adams examined
Plaintiff the following morning and heard “fluid.” Id. When Plaintiff requested a CT scan or an
x-ray, Doctor Adams denied the request. Robinson had no CT scan, and the x-ray machine was
broken. Instead, the doctor prescribed Plaintiff antibiotics.
Plaintiff’s condition did not improve. He again returned to the HCU on April 25, 2015.
Doctor Shah, who is not named as a defendant in this action, examined Plaintiff. After listening
to Plaintiff breathe, Doctor Shah indicated that Plaintiff needed a CT scan and x-rays.
Plaintiff was sent to Community Hospital for testing. Only then was he diagnosed with double
bronchial pneumonia. The doctor who diagnosed Plaintiff showed him a fluid-filled pocket in
1

Plaintiff takes issue with the fact that he was required to pay a $5.00 co-pay on more than one occasion
for the medical care that he describes in the complaint as inadequate. An inmate’s constitutional rights
are not violated by the collection of a fee for prison medical or dental services. Whether or not a statutory
exemption should apply to the co-payment rule is a question of state law, not cognizable in a § 1983
action. Poole v. Isaacs, 703 F.3d 1024, 1027 (7th Cir. 2012) (“the imposition of a modest fee for medical
services, standing alone, does not violate the Constitution”). Should Plaintiff wish to pursue this matter
further, he must do so in state court.

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Plaintiff’s right lung.

He explained that Plaintiff was in “serious condition.”

Id. at 7.

The pneumonia, he said, should not have gone untreated for more than three weeks.

Id.

Emergency grievances that Plaintiff filed during this time period were ignored at the institutional
and administrative review levels. Id. at 8.
Plaintiff was taken by ambulance to Champaign Regional Hospital. There, another
doctor described Plaintiff’s condition as “dire” after diagnosing him with a collapsed lung that
was necrotic and filled with fluid. Plaintiff underwent emergency surgery, and most of his right
lung was removed.
When Plaintiff returned to Robinson, he remained in the HCU for three weeks.
He informed Doctor Adams that he was in considerable pain. Doctor Adams acknowledged that
Plaintiff “would be in continued pain as it would be a long healing process.” Id. at 7. Even so,
the doctor refused to prescribe Plaintiff anything for pain, other than one Ibuprofen (600 mg)
every twelve hours. When Plaintiff asked for more pain medication, his requests were denied.
Plaintiff claims that this debacle could have been avoided, if Robinson’s medical staff
properly diagnosed him at the outset. He blames Wexford’s policy of emphasizing “cost over
care” for the poor manner in which his pneumonia was addressed. According to the complaint,
Wexford’s policy handbook explicitly discourages the use of expensive diagnostic testing, such
as CT scans, because of “cost considerations.” Id. at 7. Instead, Wexford encourages its medical
providers to “give cheaper medications.” Id. Plaintiff claims that Robinson’s medical staff,
including Doctor Adams, acted pursuant to this policy when denying Plaintiff adequate medical
care. For this reason, his pneumonia was treated with cold pills and Tylenol. Id. at pp. 6-7.

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Plaintiff now sues Defendants Wexford, Warden Grounds, Doctor Osmudson, and
Doctor Adams for exhibiting deliberate indifference to his medical needs, in violation of the
Eighth Amendment. Id. at 8. He seeks monetary damages against them. Id. at 9.
Discussion
The complaint articulates a viable Eighth Amendment deliberate indifference to medical
needs claim (Count 1) against Doctor Adams and Wexford, but not Warden Grounds and
Doctor Osmudson.

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). The medical condition described in the complaint is sufficiently serious to pass muster at
screening.

The Court will discuss whether the complaint adequately alleges deliberate

indifference against each of the four defendants below.
Doctor Adams
The complaint suggests that Doctor Adams may have responded to Plaintiff’s medical
needs with deliberate indifference. This defendant denied Plaintiff’s request for diagnostic
testing on April 21, 2015, and opted to treat Plaintiff’s condition with antibiotics.
Standing alone, this conduct does not necessarily amount to deliberate indifference. After all,
the doctor could have concluded that the diagnosis was pneumonia without additional testing,
obviating any need for formal testing if the chosen course of treatment was the same either way.

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But Plaintiff also alleges that Doctor Adams refused to properly treat Plaintiff’s pain during his
three-week recovery period following surgery. Plaintiff informed Doctor Adams that the
Ibuprofen was ineffective, and Doctor Adams acknowledged that Plaintiff faced a long and
painful healing process. Still, he refused Plaintiff’s request for additional pain relief. Given all
of these allegations, Count 1 against Doctor Adams shall receive further review.
Wexford Health Care
Count 1 shall also proceed against Wexford. 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 v. Illinois Dep’t of Corr., 746 F.3d 789 (7th Cir. 2014). This is because the
doctrine of respondeat superior is not recognized under § 1983. Kinslow v. Pullara, 538 F.3d
687, 692 (7th Cir. 2008). The complaint explicitly targets Wexford’s policy of elevating “cost
over care” as the driving force behind the denial of adequate medical care. (Doc. 1, p. 7).
Plaintiff’s medical providers acted pursuant to this policy when deciding, time and again, to
avoid costly diagnostic testing and treat Plaintiff with cold pills and Tylenol instead.

Id.

Under the circumstances, Count 1 shall also proceed against Wexford.
Doctor Osmudson and Warden Grounds
The complaint fails to articulate a viable claim against the other two defendants,
including Doctor Osmudson and Warden Grounds. The statement of claim mentions neither
one of these individuals. 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). Because the complaint does not mention what each of

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these defendants did to violate Plaintiff’s right to receive medical care, no viable claim is stated
against either one. The reason that plaintiffs, even those proceeding pro se, for whom the Court
is required to liberally construe complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
are required to associate specific defendants with specific claims is so these defendants are put
on notice of the claims brought against them and so they can properly answer the complaint.
Thus, where a plaintiff has not included a defendant in his statement of the claim, the defendant
cannot be said to be adequately put on notice of which claims in the complaint, if any, are
directed against him. Furthermore, merely invoking the name of a potential defendant is not
sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334
(7th Cir. 1998) (“A plaintiff cannot state a claim against a defendant by including the defendant’s
name in the caption.”). Because the complaint fails to state a claim upon which relief may be
granted against either defendant, Count 1 shall be dismissed against Doctor Osmudson and
Warden Grounds. However, the dismissal shall be without prejudice.
Filing Fee
At the time of filing this action, Plaintiff paid a $350.00 filing fee. The filing fee for a
civil action is $400.00, not $350.00.2 Therefore, Plaintiff still owes $50.00. He has two options
for payment of this amount. Plaintiff may either remit payment of the remaining $50.00 to the
Clerk of this Court or file a properly completed Motion and Affidavit to Proceed Without
Prepaying Fees or Costs (“IFP Motion”) along with a trust fund account statement for the six-

2

Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the addition
of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See
Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914,
No. 14. Although a litigant who is granted pauper status is exempt from paying the new $50.00 fee,
Plaintiff did not seek pauper status. He is therefore obligated to pay the full $400.00 filing fee for this
action.

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month period immediately preceding the filing of this action.3 Plaintiff is required to do one or
the other within thirty-five days (on or before November 20, 2015).
Pending Motions
Plaintiff has filed a motion to appoint of counsel (Doc. 2), which shall be REFERRED
to a United States Magistrate Judge for a decision.
Plaintiff has also filed a motion for service of process at government expense (Doc. 3),
which is hereby GRANTED in part, with respect to Wexford Health Care and Doctor Adams,
and DENIED in part, with respect to Doctor Osmudson and Warden Grounds.
Disposition
The CLERK is DIRECTED to provide Plaintiff with a blank Motion and Affidavit to
Proceed Without Prepaying Fees or Costs.
IT IS HEREBY ORDERED that Defendants DOCTOR OSMUDSON and
WARDEN RANDY GROUNDS are DISMISSED without prejudice from this action because
the complaint states no claim against them upon which relief may be granted.
AS TO COUNT 1, the Clerk of Court shall prepare for DEFENDANTS WEXFORD
HEALTH CARE and DOCTOR ADAMS: (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

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The CLERK shall be DIRECTED to provide Plaintiff with a blank IFP Motion. If Plaintiff chooses to
file the IFP Motion, he must have the Trust Fund Officer at his facility complete the certification that is
attached and provide a copy of his trust fund account statement (or institutional equivalent) for the period
3/15/15 to 9/18/2015. He should mail this information to the Clerk of Court at the following address:
United States District Court for the Southern District of Illinois, Office of the Clerk, 750 Missouri
Avenue, East St. Louis, Illinois 62201.

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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 ALSO 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
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 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 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 a United States
Magistrate Judge for further pre-trial proceedings, including a decision on the motion to
appoint counsel (Doc. 2).
Further, this entire matter is 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.

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IT IS ORDERED that if judgment is rendered against Plaintiff, and the judgment
includes the payment of costs under Section 1915, Plaintiff will be required to pay the full
amount of the costs, regardless of whether his application to proceed in forma pauperis, if one is
filed, is 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 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: October 15, 2015
s/J. Phil Gilbert
U.S. District Judge

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