Bell v. Wexford Health Services et al

Filing 12

IT IS HEREBY ORDERED that Plaintiff's Complaint (Doc. 1) is DISMISSED without prejudice for non-compliance with Rule 8(a) of the Federal Rules of Civil Procedure and for failure to state any claim upon which relief may be granted. Plaintiff is GRANTED leave to file his First Amended Complaint within thirty- five days. (Amended Pleadings due by 8/1/2016). Signed by Judge J. Phil Gilbert on 6/27/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH BELL, # R-70185,
Plaintiff,
vs.
WEXFORD HEALTH SERVICES,
DR. AFUWAPE, MS. KLEIN,
and MARY JOHNSON,
Defendants.

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Case No. 16-cv-00240-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Joseph Bell, who is currently incarcerated at Vandalia Correctional Center
(“Vandalia”), filed a pro se Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) which is now
before the Court for preliminary review. Because the Complaint clearly violates the pleading
requirements set forth in the Federal Rules of Civil Procedure, it shall be dismissed without
prejudice and with leave to amend.
Legal Standard
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to provide “a short
and plain statement of the claim showing that the pleader is entitled to relief” and also “a demand
for the relief sought.” FED. R. CIV. P. 8(a). Rule 8(d) requires that each allegation within the
complaint “must be simple, concise, and direct.” FED. R. CIV. P. 8(d)(1). The allegations must
“actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right
to relief above a speculative level.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)
(emphasis in original). Although the factual allegations in a pro se complaint are to be liberally
construed, some allegations may be so sketchy or implausible that they fail to provide sufficient
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notice of a plaintiff’s claim. See Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011); Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009); Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009).
Discussion
Plaintiff Bell commenced this action by filing a Complaint pursuant to 42 U.S.C. § 1983
using this District’s standard civil rights complaint form (Doc. 1). In it, he names Wexford
Health Sources (“Wexford”), Doctor Afuwape (medical director), Ms. Klein (health care
administrator) and Mary Johnson (nurse supervisor) as defendants. The form directs Plaintiff to
prepare a “statement of claim” that states “as briefly as possible, when, where, how, and by
whom you feel your constitutional rights were violated” (Id. at 5). The form instructs Plaintiff to
“attach any relevant, supporting documentation” to the complaint (Id.).
Plaintiff disregarded these instructions when preparing his Complaint. His statement of
claim consists of two paragraphs. In conclusory fashion, he alleges that Doctor Afuwape, Health
Administrator Klein and Nurse Supervisor Johnson denied him adequate medical care.
The statement of claim does not mention Wexford.
Plaintiff provides no factual allegations in support of his medical claim against each
defendant. He does not describe a single medical condition, a request for medical treatment or
any defendant’s response to a request for medical care. The Complaint fails to explain “when,
where, how, and by whom” Plaintiff’s constitutional rights were violated (Id.). Further, Plaintiff
did not submit any other documentation (e.g., grievances, medical records, etc.) that provides the
Court with insight into the conduct giving rise to his claims. Without this basic information, the
Court cannot properly assess the merits of Plaintiff’s claims against each defendant under 28
U.S.C. § 1915A.

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Additionally, Plaintiff mentions no constitutional grounds for relief.

“Section 1983

creates a federal remedy against anyone who, under color of state law, deprives ‘any citizen of
the United States . . . of any rights, privileges, or immunities secured by the Constitution and
laws.’” Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dept. Health,
699 F.3d 962, 972 (7th Cir. 2012) (quoting 42 U.S.C. § 1983). The complaint must demonstrate
that Plaintiff’s constitutional rights have been violated.
Prisoners generally bring claims for the denial of medical care under the
Eighth Amendment, which prohibits cruel and unusual punishment. The Supreme Court has
recognized that “deliberate indifference to serious medical needs of prisoners” may constitute
cruel and unusual punishment. 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 claim, the 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). Negligence does not
satisfy the Eighth Amendment standard. More is required. Farmer, 511 U.S. at 835. The prison
official must act with the equivalent state of mind of criminal recklessness. Farmer, 511 U.S. at
836-37.
Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus, “to be liable under [Section] 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). The doctrine of respondeat superior, or supervisory liability,
does not apply in this context. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008).

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Here, in order to establish individual liability, the Complaint must at least suggest that
Wexford, Doctor Afuwape, Health Administrator Klein and Nurse Supervisor Johnson were
personally involved in the violation of Plaintiff’s constitutional rights. To satisfy this standard as
it relates to the individual defendants, Plaintiff must describe the medical condition(s) that
required treatment, his requests for treatment and each defendant’s response to his requests. In
order to satisfy the standard against Wexford, Plaintiff must describe the “unconstitutional policy
or custom” attributable to Wexford that resulted in the denial of his medical care. Perez v.
Fenoglio, 792 F.3d 768, 780 (7th Cir. 2015) (citing Woodward v. Corr. Med. Servs. of Ill., Inc.,
368 F.3d 917, 927 (7th Cir. 2004)).
With this in mind, Plaintiff’s Complaint (Doc. 1) shall be dismissed without prejudice
and he shall be given an opportunity to file an amended complaint. Instructions for filing a “First
Amended Complaint” are set forth in the disposition below.
Pending Motion
Plaintiff filed a Motion to Appoint Counsel (Doc. 3), in which he asks this Court to
recruit counsel to represent him in this matter. There is no constitutional or statutory right to
counsel in federal civil cases.

Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010);

Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court has
discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent litigant. Ray v.
Wexford Health Sources, Inc., 706 F.3d 864, 866–67 (7th Cir. 2013). The Court determined that
Plaintiff is indigent when it granted his request to proceed in forma pauperis (Doc. 8).
When a litigant submits a request for assistance of counsel, the Court must first consider
whether the indigent plaintiff has made reasonable attempts to secure counsel on his own.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647, 654

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(7th Cir. 2007)). If so, the Court must examine “whether the difficulty of the case—factually
and legally—exceeds the particular plaintiff’s capacity as a layperson to coherently present it.”
Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question . . . is whether the
plaintiff appears competent to litigate his own claims, given their degree of difficulty, and this
includes the tasks that normally attend litigation: evidence gathering, preparing and responding
to motions and other court filings, and trial.” Pruitt, 503 F.3d at 655. The Court also considers
such factors as the plaintiff’s “literacy, communication skills, education level, and litigation
experience.” Id.
In his motion, Plaintiff indicates that he has “contacted several law firms” and received
“no response” to date (Doc. 3, p. 1). However, he attached no written communications to or
from a law firm, and he mentioned no date(s) in connection with these requests. Therefore, the
Court is unable to assess when Plaintiff attempted to contact these law firms and whether a delay
in the response suggests that these firms have declined to represent him in this matter.
The allegations describing Plaintiff’s attempts to secure counsel on his own are vague. As such,
the Court cannot conclude that Plaintiff has made reasonable efforts to secure counsel.
Further, the Court is unable to assess the complexity of this matter without basic factual
allegations that describe the nature of Plaintiff’s medical needs and the denial of care. At the
same time, the Court sees no indication that Plaintiff is unable to articulate the nature or scope of
his claims against each defendant in writing. He discloses no health issues that prevent him from
proceeding pro se at this time.
Upon consideration of the relevant factors, the Court concludes that recruitment of
counsel is not appropriate at this time. The motion (Doc. 3) is DENIED without prejudice.
The Court remains open to appointing counsel as the case progresses.

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Disposition
IT IS HEREBY ORDERED that Plaintiff’s Complaint (Doc. 1) is DISMISSED
without prejudice for non-compliance with Rule 8(a) of the Federal Rules of Civil Procedure and
for failure to state any claim upon which relief may be granted.
Plaintiff is GRANTED leave to file his “First Amended Complaint” within thirty-five
days (on or before August 1, 2016). 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 for failure to state a claim upon which relief may be granted.
See FED. R. CIV. P. 41(b).

See also 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. Further, the dismissal
shall count as one of Plaintiff’s allotted “strikes” under the provisions of 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for such use in this District. He should label the form, “First Amended
Complaint,” and he should use the case number for this action. The amended complaint 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 one another 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.

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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
amended pleading. The “First Amended Complaint” is also 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. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: June 27, 2016
s/J. Phil Gilbert
U.S. District Judge

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