Meyer v. Wexford Health Sources et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/10/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PATRICK MEYER, # M-47701,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES,
DR. J. COE, and DR. ADAMS,
Defendants.

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Case No. 16-cv-173-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff, currently incarcerated at Robinson Correctional Center (“Robinson”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that
Defendants were deliberately indifferent to his serious medical condition. The complaint is now
before the Court for a preliminary review pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must 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).
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
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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
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
In November 2014, Plaintiff blacked out and collapsed while he was in the shower.
Before this incident, Plaintiff had never experienced blackouts. He injured his right elbow and
shoulder when he fell. Defendant Dr. Coe examined Plaintiff and told him the elbow/shoulder
injury was a strain. At a follow-up visit, Defendant Coe told Plaintiff he had arthritis. Plaintiff
asked for an MRI or CT scan to determine the cause of the blackout, but this was refused. No xrays were taken (Doc. 1, p. 6).
On April 1, 2015, Plaintiff blacked out again while he was in the bathroom area. This
time, he fell on his face. The impact knocked out several of his teeth and fractured his jaw in
several places. Plaintiff was rushed to the hospital, where he had plates inserted to treat the
fractures.

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A neurosurgeon ordered a follow-up visit for Plaintiff to be seen in two or three weeks at
Carle Hospital, however, Defendant Wexford Health Sources (“Wexford”) never sent Plaintiff
back to the outside doctor or hospital for this follow-up. Plaintiff claims that Defendant Wexford
has a policy regarding “cost considerations” which directs that inmates not be sent to outside
facilities for CT scans or MRI tests because of the expense (Doc. 1, p. 6). Due to this policy,
inmates are told they have simple ailments such as a strain or arthritis, when in fact the problem
may be more severe. Plaintiff asserts that if he had been properly treated for the first blackout
and given diagnostic tests at that time, he would not have suffered the injuries from the blackout
in April. He seeks monetary damages (Doc. 1, p. 7).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the complaint, the Court finds it convenient to divide 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. Any other claim that
is mentioned in the complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Eighth Amendment deliberate indifference claim against Defendants
Coe and Adams, for failing to perform any tests to diagnose the cause of
Plaintiff’s blackout in November 2014;
Count 2: Eighth Amendment deliberate indifference claim against Defendant
Wexford Health Sources, for failing to send Plaintiff to the outside
hospital/neurologist for the recommended follow-up after his April 2015 blackout
and injury;
Count 3: Eighth Amendment deliberate indifference claim against Defendant
Wexford Health Sources, for maintaining a cost-based policy to deny access to
MRI and CT scan tests, which resulted in the denial of Plaintiff’s requests for
these diagnostic tests.

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Count 1–November 2014 Incident
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); Perez v. Fenoglio,
792 F.3d 768, 777-78 (7th Cir. 2015). 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).
Here, Plaintiff’s sudden blackout indicated that he may have had a serious condition
requiring medical attention. The complaint thus satisfies the objective component of an Eighth
Amendment claim. The remaining question is whether Plaintiff’s prison medical providers acted
or failed to act with deliberate indifference to a known risk of serious harm from the loss of
consciousness.
According to the complaint, Defendant Coe examined and diagnosed Plaintiff’s shoulder
and elbow injuries after he fell. From Plaintiff’s narrative, it appears that Defendant Coe was the
person who denied Plaintiff’s request for an MRI or CT scan to investigate the cause of his

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blackout. As noted above, Plaintiff cannot dictate his own medical treatment or cherry-pick what
type of diagnostic testing he should receive. Forbes v. Edgar, 112 F.3d at 267. But the complaint
indicates that nothing at all was done to attempt to diagnose the condition that caused Plaintiff to
black out and fall. Such a complete lack of attention to diagnosing or treating a potentially
serious condition may indicate deliberate indifference to a known risk of harm. For this reason,
Count 1 shall proceed against Defendant Coe for further consideration.
As to Defendant Adams, however, Plaintiff fails to mention this party at all in the
statement of claim. The Court cannot speculate as to what role he played, if any, in determining
what medical care or testing might be given to Plaintiff. Plaintiffs are required to associate
specific defendants with specific claims, so that defendants are put on notice of the claims
brought against them and so they can properly answer the complaint. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). 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). Accordingly, Defendant
Adams will be dismissed from this action without prejudice.
Count 2–April 2015 Incident
Plaintiff does not say whether Defendant Coe or Defendant Adams was involved in
making the decision that Plaintiff would not be sent to Carle Hospital for the neurosurgical
follow-up appointment that was ordered after Plaintiff received the initial treatment for his jaw
fracture. He claims only that Defendant Wexford failed to send him for this visit.

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Where a prison doctor is aware of express post-operative instructions regarding an
inmate’s medical care, but deliberately disregards them, a fact-finder may conclude that the
doctor had sufficient knowledge of the risk of harm to sustain a deliberate indifference claim. See
Gil v. Reed, 381 F.3d 649, 662-64 (7th Cir. 2004) (prison doctor prescribed Tylenol despite
surgeon’s express warning to avoid that medication); Jones v. Simek, 193 F.3d 485, 490 (7th Cir.
1999) (prison doctor refused to follow specialists’ instructions regarding inmate’s treatment). See
also Perez v. Fenoglio, 792 F.3d 768, 777-79 (7th Cir. 2015) (collecting cases) (prison doctor’s
refusal to follow treatment recommendations of outside medical specialist may constitute
deliberate indifference).
Defendant Wexford is a corporation that employs Defendants Coe and Adams and
provides medical care at the prison, but it cannot be held liable solely on that basis. A
corporation can be held liable for deliberate indifference only 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).
If a prison official had refused to allow Plaintiff to go to his follow-up appointment based
on a rule or policy promulgated by Defendant Wexford, that would be sufficient to confer
potential liability on Defendant Wexford for deliberate indifference. Here, although Plaintiff did
not specify which prison official was involved, he points the finger directly at Defendant
Wexford for denying this recommended follow-up care. Therefore, at this stage, the Court will
permit further review of Plaintiff’s claim against Defendant Wexford in Count 2.

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Count 3–Defendant Wexford’s MRI/CT Scan Policy
If Defendant Wexford’s alleged cost-containment policy was to blame for the denial of
Plaintiff’s requests to be given diagnostic testing related to his blackouts, then Count 3 could
proceed against Defendant Wexford. Unfortunately, however, Plaintiff’s statement of facts does
not shed any light on the reason why diagnostic testing was not performed. His claim that
Defendant Wexford’s policy caused the tests to be denied is speculative at this point, without any
factual support. It is possible that the treating doctor determined that the tests Plaintiff requested
were not medically indicated, or he denied testing for some other reason unrelated to a Wexford
policy. This matter may be more fully explored in connection with Count 1. At this time,
however, Count 3 shall be dismissed without prejudice.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
The motion for service of process at government expense (Doc. 4) shall be 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 Defendant.
Disposition
COUNT 3 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted. Defendant ADAMS is DISMISSED from this action without prejudice.
The Clerk of Court shall prepare for Defendants COE and WEXFORD HEALTH
SOURCES: (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

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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.
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. 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 Donald G. Wilkerson for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge

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Wilkerson 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).
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: May 10, 2016

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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