Brand v. Wexford Health Care Serv et al

Filing 6

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, in order to proceed with this action, Plaintiff SHALL submit his Fi rst Amended Complaint within 35 days of the entry of this order. In order to assist Plaintiff in preparing his amended complaint, the CLERK is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 4/7/2016). Signed by Judge Nancy J. Rosenstengel on 3/3/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OLSEN BRAND,
Plaintiff,
vs.
WEXFORD HEALTH
CARE SERVICES,
DR. AFUWAPE,
DR. CALDWELL, and
M. KLEIN,
Defendants.

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Case No. 3:16-cv-00161-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Olsen Brand is currently incarcerated at Vandalia Correctional Center
(“Vandalia”). (Doc. 1.) Proceeding pro se, Brand has filed a complaint pursuant to 42 U.S.C.
§ 1983 against Wexford Health Care Services (“Wexford”) and several health care professionals
who work at Vandalia. (Id. at 1-2.) He seeks monetary and injunctive relief. (Id. at 7.)
Under 28 U.S.C. § 1915A, the Court is required to promptly screen prisoner complaints
“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.” Upon careful review of the
complaint, the Court finds it appropriate to exercise its authority under § 1915A and dismiss the
complaint for failure to state a claim.

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The complaint, as it currently stands, lacks sufficient factual details to state a claim for
relief, even under the liberal notice pleading standard established by Rule 8 of the Federal Rules
of Civil Procedure. To state a claim for relief, a complaint must contain “enough details about
the subject-matter of the case to present a story that holds together,” Swanson v. Citibank, N.A.,
614 F.3d 400, 404 (7th Cir. 2010), along with allegations “plausibly suggesting (not merely
consistent with) an entitlement to relief,” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632
(7th Cir. 2013) (internal quotation marks and citation omitted). The present complaint is lacking
in details such that it is impossible for the Court to understand specifically what has occurred and
who is responsible for what.
The statement of claim is on a single loose-leaf page. It consists entirely of conclusory
language, stating that Dr. Afuwape, Dr. Caldwell, and Ms. Klein administered inadequate
medical care and imperiled Brand’s health due to their hatred of him. (Doc. 1 at 6.) Brand states
that they did so even though they were aware of his many health problems. Brand does not,
however, describe the medical care each defendant actually administered or indeed any specific
factual details. Inadequate medical care may constitute a violation of the Eighth Amendment’s
prohibition of cruel and unusual punishment. See U.S. CONST. amend. VIII. But to state such a
claim, plaintiffs must allege specific facts that indicate officials acted with deliberate
indifference to an objectively serious medical condition. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001). The complaint describes no
specific instances of unconstitutional behavior (or of any behavior for that matter).1

1

Brand states that his claim is based on multiple grievances stemming from “various times/dates which are ongoing.” (Doc. 1 at 6.) Indeed, Brand has attached fourteen pages of grievances to his complaint. He should be aware,
however, that the factual predicates for a claim must be put forth in the statement of claim so that a defendant can
admit or deny them.

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Also, while Brand names Wexford as a defendant, he makes no mention of the company
in his statement of claim. Brand should be aware that Wexford is a corporate entity and is treated
as a municipality for purposes of § 1983 liability. See Jackson v. Illinois Medi-Car, Inc., 300
F.3d 760, 766 n.6 (7th Cir. 2002). “[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).
Brand makes no reference to any custom or policy of Wexford that caused a constitutional
deprivation.
So, Brand’s complaint is low on facts, and is therefore subject to dismissal. Rather than
dismiss the entire action, however, the Court will allow Brand an opportunity to correct the
deficiencies through an amended complaint. In drafting his amended complaint, should he
choose to do so, Brand should avoid using conclusory language and vague allegations of fact.
Rather, he should follow the instructions on the Court’s complaint form, which directs a plaintiff
to state “when, where, how, and by whom” his rights were violated. While Brand may attach
exhibits to his complaint, he may not refer to exhibits alone to satisfy his obligations; instead, he
must include sufficient factual detail in his actual complaint so that defendants can respond.

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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, in order to proceed with this action, Plaintiff
SHALL submit his First Amended Complaint within 35 days of the entry of this order (on or
before April 7, 2016). The amended complaint shall identify the individual Defendant or
Defendants responsible for the alleged unconstitutional actions and how those individuals were
personally and directly involved in the alleged unconstitutional actions.
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 other
pleading in this case or elsewhere. Should the First Amended Complaint not conform to these
requirements, it shall be stricken. Plaintiff must also re-file any exhibits he wishes the Court to
consider along with the First Amended Complaint.
Failure to file an amended complaint shall result in the dismissal of this action with
prejudice. Such dismissal shall count as one of Plaintiff’s three allotted “strikes” within the
meaning of 28 U.S.C. § 1915(g). No service shall be ordered on any Defendant until after the
Court completes its § 1915A review of the First Amended Complaint.
In order to assist Plaintiff in preparing his amended complaint, the CLERK is
DIRECTED to mail Plaintiff a blank civil rights complaint form.
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

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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: March 3, 2016
__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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