Toscano v. Wexford Health Sources et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 3/24/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RIGOBERTO TOSCANO, # R-25562,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES,
DOCTOR OSMUNDSON,
and DOCTOR SHAH,
Defendants.

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Case No. 16-cv-00216-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff Rigoberto Toscano, an inmate who is currently incarcerated at Robinson
Correctional Center (“Robinson”), brings this action pursuant to 42 U.S.C. § 1983. According to
his complaint, Plaintiff has been denied treatment for bilateral inguinal hernias by his medical
providers at Robinson for more than a year.

(Doc. 1 at 5-6). He now brings an Eighth

Amendment deliberate indifference to medical needs claim against Wexford Health Sources
(“Wexford”), Doctor Shah (Robinson physician), and Doctor Osmundson (Robinson physician).
(Id.). Plaintiff seeks monetary damages. (Id. at 7).
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under Section 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). The complaint survives preliminary review
under this standard.
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The Complaint
In early 2015, Plaintiff sustained a groin injury while playing basketball at Robinson.
(Doc. 1 at 6). He submitted a sick call request and was scheduled for an appointment with
Doctor Shah, one of the prison’s physicians. Doctor Shah diagnosed Plaintiff with a muscle
strain and gave him ibuprofen. Plaintiff’s pain did not subside.
Weeks later, he met with a prison nurse, who scheduled him for an appointment with
Doctor Osmundson, another physician at Robinson. Doctor Osmundson diagnosed Plaintiff with
a hernia but indicated that “they would not be able to do anything” for him. (Id.) Plaintiff filed
grievances seeking medical treatment for his hernia, but the grievances were denied. In the
meantime, he continued to suffer from pain in his groin. Doctor Shah insisted that Plaintiff was
suffering from a “simple muscle strain” or arthritis. (Id. at 6). After exhausting his initial 30-day
supply of ibuprofen, Plaintiff was denied additional pain medication and instead given cold pills.
In December 2015, Plaintiff was finally referred to Central Illinois Radiological for
further evaluation. He was diagnosed with bilateral inguinal hernias, which Plaintiff claims can
only be treated with “a medical procedure.” (Id.). However, Wexford will not authorize the
procedure because of “cost considerations.” (Id.). Doctor Shah and Doctor Osmundson took no
steps to secure additional treatment for Plaintiff or to treat his pain.
Plaintiff now sues Wexford, Doctor Shah, and Doctor Osmundson for exhibiting
deliberate indifference to his medical needs, in violation of the Eighth Amendment. (Id.).
The only relief he seeks is monetary damages. (Id. at 7).
Merits Review Under 28 U.S.C. § 1915A
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the

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Court deems it appropriate to organize the claims in Plaintiff’s pro se complaint into a single
count:
Count 1:

Defendants responded to Plaintiff’s serious medical need
(i.e., his bilateral inguinal hernias and associated pain) with
deliberate indifference, in violation of the Eighth Amendment.

The parties and the Court will use this designation in all future pleadings and orders,
unless otherwise directed by a judicial officer of this Court. The designation of this count does
not constitute an opinion as to its merit.
Discussion
Count 1 shall receive further review against all three defendants. The Eighth Amendment
“safeguards the prisoner against a lack of medical care that ‘may result in pain and suffering
which no one suggests would serve any penological purpose.’” See Perez v. Fenoglio, 792 F.3d
at 768, 776 (7th Cir. 2015) (citing Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828
(7th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state an Eighth
Amendment claim in this context, a plaintiff must allege an objectively serious medical condition
and an official’s deliberate indifference to that condition. Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011).
A serious medical condition is one that “has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would perceive the need for a doctor’s
attention.” Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005). Plaintiff’s bilateral inguinal
hernias satisfy the objective component of this claim at screening. See King v. Kramer, 680 F.3d
1013 (7th Cir. 2012) (hernia is considered a serious medical condition); Gonzalez v. Feinerman,
663 F.3d 311 (7th Cir. 2011) (unincarcerated hernia may be considered serious medical
condition).

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Deliberate indifference occurs when a defendant realizes that a substantial risk of harm to
a prisoner exists, but disregards the known risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In the context of an untreated and painful hernia, the Seventh Circuit has specifically noted that a
“[d]elay in treating a condition that is painful even if not life-threatening may well constitute
deliberate indifference.” Gonzalez, 663 F.3d at 315. In addition, the “deliberate refusal to treat
treatable pain can rise to the level of an Eighth Amendment violation.” Brown v. Darnold,
505 Fed. Appx. 584 (7th Cir. 2013) (citing Gil v. Reed, 381 F.3d 649, 661-62 (7th Cir. 2004)).
The allegations in the complaint suggest that Doctor Shah and Doctor Osmundson may have
responded to Plaintiff’s hernias and related pain with deliberate indifference, when they denied
him further testing and treatment and failed to treat his pain after his diagnosis.
The allegations in the complaint also suggest that the deliberate indifference standard is
satisfied with respect to Wexford, a private corporation that contracts with the IDOC to provide
medical services to prisoners in Illinois. A private corporation that contracts to provide essential
government services cannot be 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).

The doctrine of respondeat superior

(supervisory liability) is not recognized under § 1983. Kinslow v. Pullara, 538 F.3d 687, 692
(7th Cir. 2008).
Plaintiff alleges that Wexford refused to authorize the medical procedure necessary to
treat his hernia because of cost concerns. Doctors Shah and Osmundson allegedly acted pursuant
to this policy when denying Plaintiff’s requests for treatment.

Because this policy could

foreseeably delay proper medical care and result in unnecessary pain, the claim against Wexford
shall receive further review. See Perez, 792 F.3d at 781-82 (reversing dismissal of claim against

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Wexford where its policy of having no full-time doctor stationed at prison delayed proper
medical care of prisoner).
In summary, Count 1 against Wexford, Doctor Shah, and Doctor Osmundson shall
receive further review.
Interim Relief
In the complaint, Plaintiff indicates that he is in need of a “medical procedure.”
However, his request for relief includes no request for the procedure.

He also seeks no

injunctive relief, including a preliminary injunction or temporary restraining order pursuant to
Rule 65 of the Federal Rules of Civil Procedure. If Plaintiff deems interim relief to be necessary,
he must file a motion for a temporary restraining order and/or preliminary injunction pursuant to
Rule 65. See FED. R. CIV. P. 65(a)-(b).
Pending Motions
Plaintiff filed a Motion to Appoint Counsel (Doc. 3), which shall be REFERRED to
United States Magistrate Judge Stephen C. Williams for a decision.
Plaintiff also filed a Motion for Service of Process at Government Expense (Doc. 4),
which is hereby GRANTED. An Order for service of this lawsuit on each of the defendants is
included in the below Disposition.
Disposition
IT IS HEREBY ORDERED that as to COUNT 1, the Clerk of Court shall prepare for
Defendants DOCTOR SHAH, DOCTOR OSMUNDSON, 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 Stephen C. Williams for further pre-trial proceedings, including a decision on Plaintiff’s
Motion to Appoint Counsel (Doc. 3). Further, this entire matter shall be REFERRED to
United States Magistrate Judge Williams for disposition, pursuant to Local Rule 72.2(b)(2) and

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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 Section 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact
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 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 24, 2016
s/ MICHAEL J. REAGAN
Chief District Judge,
United States District Court

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