Melton v. Duncan et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 2/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN M. MELTON, # M-14050,
Plaintiff,
vs.
WARDEN STEPHEN DUNCAN,
RUSSELL GOINS,
D.D. BROOKHART,
DR. FAIRLESS,
K. GAY,
and WEXFORD HEALTHCARE, INC.,
Defendants.

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Case No. 16-cv-1202-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Justin Melton was a prisoner incarcerated at Lawrence Correctional Center
(“Lawrence”) at the time he brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Shortly after the case was filed, Melton was released from prison. (Doc. 7). Melton claims that
Defendants were deliberately indifferent to his serious mental health condition, and were
negligent in relation to his treatment needs. The Complaint is now before the Court for a
preliminary review pursuant to 28 U.S.C. § 1915A. 1
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

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Section 1915A, as well as other provisions of the Prison Litigation Reform Act (“PLRA”), apply to this
action, despite the fact that Plaintiff is not presently incarcerated. The determination of whether a
plaintiff is a “prisoner” (and thus subject to the application of the PLRA) must be made as of the time the
lawsuit is filed. Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (citing Abdul-Wadood v. Nathan, 91
F.3d 1023 (7th Cir. 1996)).

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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 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). 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 one of Plaintiff’s claims survives threshold
review under § 1915A.

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The Complaint
Melton was transferred to Lawrence on June 29, 2016 from the Pinckneyville
Correctional Center. (Doc. 1, p. 3). He had previously been diagnosed with a serious mental
illness (which he does not further identify) and had been taking psychotropic medication. Upon
his arrival at Lawrence, Melton was not provided with his prescribed psychotropic medications.
On June 30, 2016, Melton was evaluated by mental health provider K. Gay, who
reviewed his suicide potential and a treatment plan. Melton informed Gay that he was not
receiving his medication, and he told her that if he did not get his medication soon, he “would do
something to get them.” (Doc. 1, p. 3).
On July 1, 2016, Melton, who was in segregation, filed an emergency grievance over the
denial of his medication. (Doc. 1-1, p. 7). In the grievance, Melton stated: “I need them [the
medications] I have tried killing myself countless times. I’m not afraid of death. I will try it
again if I don’t get some help soon. Nobody thinks I will do it for real.” Id.
On July 5, 2016, Melton had not received any response to his grievance and was still not
properly medicated. He hung himself, and was initially pronounced dead by the responding
officers. (Doc. 1, pp. 3-4). He was taken to the medical unit and found to have life-threatening
injuries, but was still alive. He was airlifted to Carle Hospital, where he was treated for 10 days.
On July 14, 2016, Melton was returned to Lawrence and placed on crisis watch. He remained on
crisis watch until August 10, 2016, when Dr. Fairless released him.
Melton asserts that if Gay had properly reviewed his master file, she would have known
the seriousness of his plea for help. Likewise, if the prison administrative staff had responded to
his emergency grievance in a timely manner, he would not have harmed himself. Finally, his

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suicide attempt could have been prevented if Wexford Healthcare had properly trained its mental
health staff. (Doc. 1, p. 4).
Melton now seeks declaratory relief and compensatory damages. (Doc. 1, p. 5).
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 claim against Gay, Fairless, and Wexford
Healthcare, Inc., for deliberate indifference to Melton’s serious mental health
need to receive his prescribe psychotropic medications;
Count 2: Eighth Amendment claim against Duncan, Goins, and Brookhart, for
deliberate indifference to Melton’s serious mental health need to receive his
prescribe psychotropic medications;
Count 3: State law negligence claim against Gay, Fairless, and Wexford
Healthcare, Inc., for failure to provide Melton with proper treatment for his
mental health condition;
Count 4: State law negligence claim against Duncan, Goins, and Brookhart, for
failure to respond to Melton’s emergency grievance in order to prevent his suicide
attempt.
Count 1 shall proceed for further consideration against Gay. However, the remaining
Defendants and claims shall be dismissed from the action.
Count 1 – Deliberate Indifference – Mental Health 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

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defendant was deliberately indifferent to a risk of serious harm from that condition. The Seventh
Circuit has found that “the need for a mental illness to be treated could certainly be considered a
serious medical need.” Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001); Wellman v.
Faulkner, 715 F.2d 269 (7th Cir. 1983).
“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).

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, Melton’s serious mental health diagnosis, which required management with
prescription medication, satisfies the objective component of an Eighth Amendment claim. The
remaining question is whether the Defendants acted or failed to act with deliberate indifference
to a known risk of serious harm.
K. Gay conducted Melton’s initial mental health evaluation the day after he arrived at
Lawrence. He informed her that he had not received his psychiatric medications since his
transfer. Melton asserts that Gay specifically evaluated his suicide risk and that he threatened to

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“do something” if he did not get the medications. This information put Gay on notice that
Melton could be at risk of harm without his prescribed medications. As such, at this early stage,
the Complaint states a claim that Gay, by failing to take action to restore Melton’s medications,
was deliberately indifferent to the risks Melton faced from being unable to take his psychiatric
prescriptions. Count 1 shall thus proceed against Gay.
However, the Complaint fails to state a viable claim against Fairless or Wexford
Healthcare, Inc. (“Wexford”).

Melton does not allege that Administrator Fairless had any

knowledge of his mental health condition or the denial of his medications, prior to Melton’s
suicide attempt. Without having this knowledge of Melton’s diagnosis and the risk of harm from
being denied his medications, Fairless could not have been deliberately indifferent to Melton’s
mental health needs. Therefore, Fairless shall be dismissed from Count 1 without prejudice.
As to Wexford, this corporation employs Gay and Fairless and provides mental health
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). Melton
has not alleged that any of the individual Defendants either acted or failed to act as a result of an
official policy espoused by Wexford.

Therefore, Melton cannot maintain a deliberate

indifference claim against Wexford, and Count 1 shall also be dismissed against this corporate
entity.
To summarize, Count 1 shall proceed for further consideration only against Gay.

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Dismissal of Count 2 – Deliberate Indifference – Prison Administrators
While Wardens Duncan, Goins, and Brookhart are not medical providers, the same
Eighth Amendment factors apply to a constitutional claim against them. Each Defendant must
have had knowledge that Melton suffered from an objectively serious mental health condition
which posed a serious risk to his health when he was denied his prescribed psychiatric
medications, and then failed to take action to mitigate the risk to Melton.
The factual allegations in the Complaint fail to establish that these defendants had any
information about Melton’s situation before he attempted suicide. While Melton did submit an
emergency grievance, there is no indication that the grievance was seen by any of these
Defendants. Without that connection, Melton fails to state a deliberate indifference claim upon
which relief may be granted against any of the wardens. Accordingly, Count 2 against Duncan,
Goins, and Brookhart shall be dismissed without prejudice.
Dismissal of Count 3 – Negligence – Mental Health Providers
In introducing his claim of deliberate indifference, Melton also asserts that Defendants
were “negligen[t] in violation of the 8th Amendment.” (Doc. 1, p. 1). Negligence or even
malpractice by a medical or mental health provider, however, does not violate the Constitution.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.
2008); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). It is unclear whether Melton
intended to assert a state law claim for negligence/malpractice distinct from his constitutional
claims. In the event that Melton did wish to pursue such a claim, the potential merits shall be
addressed.
Where a district court has original jurisdiction over a civil action such as a § 1983 claim,
it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C.

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§ 1367(a), so long as the state claims “derive from a common nucleus of operative fact” with the
original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A
loose factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th
Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
While this Court has supplemental jurisdiction over state-law medical negligence/malpractice
claims pursuant to 28 U.S.C. § 1367, this is not the end of the matter.
Under Illinois law, a plaintiff “[i]n any action, whether in tort, contract or otherwise, in
which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other
healing art malpractice,” must file an affidavit along with the complaint, declaring one of the
following: 1) that the affiant has consulted and reviewed the facts of the case with a qualified
health professional who has reviewed the claim and made a written report that the claim is
reasonable and meritorious (and the written report must be attached to the affidavit); 2) that the
affiant was unable to obtain such a consultation before the expiration of the statute of limitations,
and affiant has not previously voluntarily dismissed an action based on the same claim (and in
this case, the required written report shall be filed within 90 days after the filing of the
complaint); or 3) that the plaintiff has made a request for records but the respondent has not
complied within 60 days of receipt of the request (and in this case the written report shall be filed
within 90 days of receipt of the records). See 735 ILL. COMP. STAT. §5/2-622(a) (West 2013). 2
A separate affidavit and report shall be filed as to each defendant. See 735 ILL. COMP. STAT.

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The August 25, 2005, amendments to a prior version of this statute were held to be unconstitutional in
2010. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010) (Holding P.A. 94-677 to be
unconstitutional in its entirety). After Lebron, the previous version of the statute continued in effect. See
Hahn v. Walsh, 686 F. Supp. 2d 829, 832 n.1 (C.D. Ill. 2010). The Illinois legislature re-enacted and
amended 735 ILL. COMP. STAT. §5/2-622 effective January 18, 2013 (P.A. 97-1145), to remove any
question as to the validity of this section. See notes on Validity of 735 ILL. COMP. STAT. §5/2-622 (West
2013).

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§5/2-622(b).
Failure to file the required certificate is grounds for dismissal of the claim. See 735 ILL.
COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). However,
whether such dismissal should be with or without prejudice is up to the sound discretion of the
court. Sherrod, 223 F.3d at 614. “Illinois courts have held that when a plaintiff fails to attach a
certificate and report, then ‘a sound exercise of discretion mandates that [the plaintiff] be at least
afforded an opportunity to amend her complaint to comply with section 2-622 before her action
is dismissed with prejudice.’” Id.; see also Chapman v. Chandra, Case No. 06-cv-651-MJR,
2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).
In the instant case, Melton has failed to file the necessary affidavits or certificates of
merit with reference to the potential claims for negligence/malpractice against Gay, Fairless or
Wexford. Therefore, the claim in Count 3 shall be dismissed. However, the dismissal shall be
without prejudice at this time, and Melton shall be allowed 35 days to file the required
affidavits/certificates. Should Melton fail to timely file the required affidavits/certificates, the
dismissal of Count 3 shall become a dismissal with prejudice. See FED. R. CIV. P. 41(b).
Dismissal of Count 4 – Negligence – Prison Administrators
As noted in Count 3, negligence on the part of any prison official does not amount to a
constitutional violation. Daniels v. Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64
F.3d 285, 290 (7th Cir. 1995). In order to state a claim for negligence under Illinois state law, a
complaint must allege facts to establish that the defendant owed the plaintiff a duty of care,
breached that duty, and that the breach was the proximate cause of the plaintiff’s injury.
Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011) (citing Iseberg v. Gross, 879 N.E.2d 278
(2007)).

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Here, Melton asserts generally that Duncan, Goins and Brookart were “legally
responsible for the health and safety of all inmates” at Lawrence. (Doc. 1, p. 2). He further
notes that if “the Administration” (presumably Warden Duncan, Goins, or Brookhart) had read
and responded to his emergency grievance in a timely manner, they could have prevented him
from harming himself. (Doc. 1, p. 4).
It is not necessary at this point to determine whether or not Melton has sufficiently pled a
duty of care or a proximate causal connection between the wardens’ inaction and his injury. As
discussed in Count 2, Melton has failed to state a constitutional claim for deliberate indifference
against Duncan, Goins, or Brookhart, and the civil rights claim against these three Defendants
shall be dismissed. Where all federal claims against a particular defendant have been dismissed,
the usual practice is to also dismiss the related state supplemental claims, without prejudice to
the state law claims being brought in the appropriate state court. See Groce v. Eli Lilly & Co.,
193 F.3d 496, 501 (7th Cir. 1999). Under this authority, the Court declines to exercise its
supplemental jurisdiction over Melton’s potential negligence claim in Count 4 against Duncan,
Goins and Brookhart. Count 4 shall therefore be dismissed without prejudice. Duncan, Goins,
and Brookhart shall also be dismissed from the action without prejudice.
Pending Motion
The motion for service of process at government expense (Doc. 3) is GRANTED IN
PART AND DENIED IN PART. Service shall be ordered below on the Defendant who
remains in the action. No service shall be made on the dismissed Defendants.

Disposition
COUNTS 2 and 3 are DISMISSED without prejudice for failure to state a claim upon

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which relief may be granted. COUNT 4 is DISMISSED without prejudice because the Court
shall not exercise supplemental jurisdiction over that state law claim where the related federal
claim is dismissed.

Defendants DUNCAN, GOINS, BROOKHART, FAIRLESS and

WEXFORD HEALTHCARE, INC., are DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that if he wishes to seek reinstatement of the
negligence/malpractice claims in COUNT 3 against mental health provider Defendants GAY,
FAIRLESS or WEXFORD HEALTHCARE, INC., Plaintiff shall file the required affidavits
pursuant to 735 ILL. COMP. STAT. §5/2-622, within 35 days of the date of this order (on or before
March 31, 2017). Further, Plaintiff shall timely file the required written report(s) of a qualified
health professional, in compliance with §5/2-622. Should Plaintiff fail to timely file the required
affidavits or reports, the dismissal of COUNT 3 shall become a dismissal with prejudice.
The Clerk of Court shall prepare for Defendant GAY: (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 Defendant’s place of employment as identified by Plaintiff. If 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
Defendant, and the Court will require Defendant to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure.
If the Defendant cannot be found at the 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

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Clerk. Address information shall not be maintained in the court file, nor disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every further 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 any document was served on Defendant 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.
Defendant is 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 Reona J. Daly for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge Daly
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).

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IT IS SO ORDERED.
DATED: February 24, 2017

s/ STACI M. YANDLE
United States District Judge

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