Waltrip v. Shah et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 7/8/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANK WALTRIP, # K-02188,
Plaintiff,
vs.
VIPEN SHAH, DENNIS ELS,
WEXFORD MEDICAL SOURCES,
THOMAS SPILLER,
DIRECTOR I.D.O.C.,
MEDICAL DIRECTOR,
and UNKNOWN PARTY EYE DOCTOR,
Defendants.

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Case No. 16-cv-468-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff,

currently

incarcerated

at

Pinckneyville

Correctional

Center

(“Pinckneyville”), 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.
This case is now before the Court for a preliminary review of the complaint pursuant to 28
U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out
non-meritorious 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
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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 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).
Applying these standards, the Court finds that some of Plaintiff’s claims survive
threshold review under § 1915A.
The Complaint
On July 14, 2014, Plaintiff suffered an injury to his left eye during a basketball
game in the prison gym. Another inmate stuck his finger in Plaintiff’s eye, and the fingernail
punctured the eye, causing it to leak fluid (Doc. 1, p. 6).
Shortly after the injury, Plaintiff sought medical attention from Defendant Dr.
Shah. He put some dye in Plaintiff’s eye to observe the injury. Defendant Shah gave Plaintiff no

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treatment at the time, and told him to just drink more water. Later, Defendant Shah ordered eye
drops to dilate Plaintiff’s eye, but Plaintiff asserts the drops did not treat the injury.
Some time later in July, Plaintiff was examined by the Unknown Defendant Eye
Doctor. However, this specialist “refused him adequate medical care.” Id.
After Plaintiff’s eye exam, Defendant Els (who is referenced in Plaintiff’s exhibits
as an optometrist at the prison) told him that giving him tinted glasses would cost too much, and
instead Plaintiff should just buy a cap at the commissary (Doc. 1, pp. 6, 14, 21). Defendant Els
stated that Defendant Wexford Medical Sources (“Wexford”) instructs prison officials “not to
cause high medical cost/bills” for treating inmates (Doc. 1, p. 6).
Plaintiff asserts that he now has almost no vision in his injured left eye.
Defendants Shah and Els both gave Plaintiff eye drops, but these did not improve his condition.
Instead, the vision in his left eye became much worse. Plaintiff notes that the eye drops were the
cheapest available treatment. He also told Defendants Shah and Els that he suffered from severe
headaches and nausea from the pain, but the doctors never treated those problems. Plaintiff’s
medical records indicate that he was examined by an outside eye specialist on September 16,
2014 (Doc. 1, pp. 16-17), who recommended he wear sunglasses or shades to protect the eye.
Plaintiff thought he should return for a follow-up visit to the specialist, but he was never sent
back (Doc. 1 p. 7).
Plaintiff complained to Defendant Spiller (warden) and to the Unknown
Defendant Medical Director about the inadequate treatment, but was told to “just man-up” (Doc.
1, p. 7).
Plaintiff continues to suffer severe headaches, loss of sight in his left eye, and
severe depression. In this action, he seeks compensatory and punitive damages (Doc. 1, p. 8).

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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
Shah and Els, and the Unknown Party Eye Doctor, for failing to provide adequate
treatment for Plaintiff’s eye injury;
Count 2: Eighth Amendment deliberate indifference claim against Defendant
Wexford Medical Sources, for maintaining a cost-cutting policy that caused the
prison medical providers to render inadequate care to Plaintiff;
Count 3: Eighth Amendment deliberate indifference claim against Defendants
Spiller and the Unknown Party Medical Director for refusing to take any action to
review Plaintiff’s complaints that his prison medical providers were not
adequately treating his vision loss.
Each of these claims shall proceed for further review. However, the Defendant
IDOC Director shall be dismissed from the action without prejudice.
Count 1 – Prison Medical Providers
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)
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(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).

However, 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 describes a serious eye injury that clearly required medical
attention. The complaint thus satisfies the objective component of an Eighth Amendment claim.
As to the subjective component, the Court must evaluate whether Plaintiff’s prison medical
providers acted or failed to act with deliberate indifference to a known risk of serious harm.
According to Plaintiff, Defendants Shah and Els treated him with eye drops,
which did nothing to improve the vision in his left eye.

They gave no treatment for the

headaches and nausea that he experienced after the injury. Further, Defendant Els apparently
refused to provide Plaintiff with tinted glasses to protect his injured eye from light, citing
instructions from Defendant Wexford Medical Sources to keep the cost of prisoners’ treatment
under control.
The mere fact that a prescribed treatment (such as the eye drops) has proven
ineffective does not rise to the level of deliberate indifference. Duckworth v. Ahmad, 532 F.3d
675, 680 (7th Cir. 2008).

However, the apparent delay 1 in providing Plaintiff with the

recommended dark glasses (which may have been denied by Defendant Els due to cost-saving

1

Plaintiff’s exhibits show that by the time he was examined at the Marion Eye Center on September 16,
2014, he was wearing sunglasses (Doc. 1, pp. 18-19).
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concerns), as well as the length of time Plaintiff has endured the loss of vision without any
further assessment or treatment, suggest the possibility that the prison doctors’ responses to
Plaintiff’s condition fell below constitutional standards of care. See Perez v. Fenoglio, 792 F.3d
768, 777-79 (7th Cir. 2015) (prison doctor’s delay in treatment and refusal to follow treatment
recommendations of outside medical specialist may constitute deliberate indifference); Greeno v.
Daley, 414 F.3d 645, 655 (7th Cir. 2005) (lengthy course of ineffective treatment, and refusal to
order testing or specialist referral over a two-year period during which plaintiff suffered from
ulcer suggested deliberate indifference). For these reasons, Count 1 against Defendants Shah,
Els, and the Unknown Eye Doctor shall proceed for further consideration.
Count 2 – Wexford Medical Sources
Defendant Wexford Health Care Services (“Wexford”) is a corporation that
employs Defendants Shah and Els 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. MediCar, 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).
Plaintiff has alleged that at least one of the individual Defendants (Defendant Els)
either acted or failed to act as a result of an official cost-cutting policy espoused by Defendant
Wexford. Therefore, Plaintiff’s claim against Defendant Wexford cannot be dismissed at this
stage, and Count 2 shall also proceed for review.
Count 3 – Prison Administrators
Defendant Warden Spiller cannot be held liable merely because he was the

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supervisor of the other Defendants. The doctrine of respondeat superior (supervisory liability) is
not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
The same is true for the Unknown Medical Director at Pinckneyville.
However, Plaintiff asserts that he spoke in person to both Defendant Spiller and to
the Unknown Defendant Medical Director about the medical providers’ failure to treat his vision
loss. Although Plaintiff does not describe these encounters in detail, out of an abundance of
caution, the Court shall also allow Count 3 to proceed for further review at this early stage. See
Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (prisoner could proceed with deliberate
indifference claim against non-medical prison officials who failed to intervene despite their
knowledge of his serious medical condition and inadequate medical care, as explained in his
“coherent and highly detailed grievances and other correspondences”).
Dismissal of Defendant IDOC Director
Plaintiff does not mention the Director of the Illinois Department of Corrections
at all in the body of his complaint. He merely asserts that the Defendant IDOC Director “made
final decision [sic] on policy in all IDOC prisons” (Doc. 1, p. 3). This is not sufficient to impose
personal liability on the Director, who cannot be held responsible merely for his
administrative/supervisory role. See Sanville, 266 F.3d at 740. There is no indication that the
Defendant Director had any personal involvement in the treatment decisions regarding Plaintiff’s
injury, nor does Plaintiff point to any policy made by the Director that influenced those treatment
decisions.
Moreover, Plaintiff cannot maintain a civil rights suit for money damages against
the Defendant IDOC Director in his official capacity as head of the state government agency.
The Supreme Court has held that “neither a State nor its officials acting in their official

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capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment
bars suits against states in federal court for money damages); Billman v. Ind. Dep’t of Corr., 56
F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune from suit by virtue of
Eleventh Amendment).
Accordingly, the Defendant IDOC Director shall be dismissed from this action
without prejudice.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the
United States Magistrate Judge for further consideration.
The motion in addendum (Doc. 7) is DENIED. This motion seeks to add other
Defendants to this action, and describes these parties as the owners of the prison commissary.
However, Plaintiff has included no allegations in his complaint regarding the commissary or any
of its operators. It appears that this motion was mis-filed in this case.
The motion for service of process at government expense (Doc. 10) is
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
The Defendant DIRECTOR of the IDOC is DISMISSED from this action
without prejudice.
The Clerk of Court shall prepare for Defendants SHAH, ELS, WEXFORD
MEDICAL SOURCES, and SPILLER: (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

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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
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.
Service shall not be made on the Unknown (John Doe) Defendants until such time
as Plaintiff has identified them by name in a properly filed amended complaint. Plaintiff is
ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and service
addresses for these individuals.
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

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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, 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 Williams 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: July 8, 2016

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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