Parks v. Coe et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 12/16/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DAMON B. PARKS,
Plaintiff,
vs.
JOHN COE,
BLANCHARD,
WEXFORD HEALTH SOURCES, INC.,
and
TOBY RICE

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Case No. 16−cv–1229−SMY

Defendants.

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Damon B. Parks, an inmate in Lawrence Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.
compensatory, punitive and nominal damages.

Plaintiff seeks

This case is now before the Court for a

preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
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
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to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
The Complaint
Plaintiff is an insulin dependent diabetic. (Doc. 1, p. 5). On May 18, 2016, Plaintiff was
transferred from Menard Correctional Center to Lawrence Correctional Center. (Id.). He had a
medical permit to wear special canvas shoes due to his diabetes. (Id.). On May 19, 2016,
Plaintiff reported to the clothing room at Lawrence where Defendant Rice and his staff instructed
Plaintiff to trade the canvas shoes for vinyl boots. (Id.). Plaintiff explained that he had a permit
for the canvas shoes and could not wear the boots due to his diabetes because his feet would
become blistered and infected. (Id.). Rice ordered Plaintiff to make the exchange and told him
he would be sent to segregation if he did not. (Id.).
Several hours later, 2 large sores appeared on Plaintiff’s left foot. (Doc. 1, p. 6). Dr.
John Coe examined Plaintiff and diagnosed him with diabetic ulcers on his left foot. (Id.). Coe
prescribed daily dressing changes and silverdene cream. (Id.). He also renewed the prescription
for diabetic shoes and gave Plaintiff a permit to allow him to wear shower shoes until the new
shoes arrived. (Id.). Plaintiff asked if he could stay in the Health Care Unit (“HCU”) until the
ulcers healed, but Coe told him there were no openings in the HCU due to overcrowding. (Id.).
Plaintiff was thus forced to walk around the prison on his injured feet. (Id.).

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When Plaintiff saw Coe two weeks later, his feet had taken a turn for the worse. (Id.).
They were painful, swollen, red and hot to the touch. (Id.). Although Coe noted that the
infection was not healing, he told Plaintiff that he could not prescribe antibiotics because they
cost too much and that Wexford would not approve of antibiotics to treat Plaintiff. (Id.). He also
again denied Plaintiff’s request for placement in the HCU. (Id.).
Approximately 3 hours later, Plaintiff noticed his sock was full of blood. (Doc. 1, p. 7).
His foot had literally exploded. (Id.). Flesh was stuck to his sock, there was green and black
tissue on his toes and holes in his flesh, up to the size of a quarter. (Id.). Plaintiff was returned
to the HCU where he saw Coe and Blanchard, the Physician Assistant. (Id.). Coe instructed
Blanchard not to make a note of this incident in Plaintiff’s medical file. (Id.). Coe admitted
Plaintiff to the infirmary but declined to refer him to a wound care specialist or any outside
treatment provider. (Id.).
On July 6, 2016, Plaintiff was sent to a hospital in Champaign, Illinois and was informed
that his foot was gangrenous and would have to be amputated. (Doc. 1, p. 8). The doctor also
told Plaintiff that Coe had waited too long to send him to the hospital. (Id.). When Plaintiff
returned to the prison, he was denied pain medication and physical therapy. (Id.).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 4 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. At this time,
all of Plaintiff’s claims survive threshold review:
Count 1 – Rice was deliberately indifferent to Plaintiff’s diabetes in violation of the
Eighth Amendment when he refused to allow Plaintiff to keep his prescribed diabetic
shoes;

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Count 2 – Coe was deliberately indifferent to Plaintiff’s diabetes in violation of the
Eighth Amendment when he refused to admit him to the health care unit on May 19,
2016, refused to provide antibiotics or admit Plaintiff to the health care unit on June 2,
2016, and refused to refer Plaintiff in a timely manner to an outside medical provider;
Count 3 – Blanchard was deliberately indifferent to Plaintiff’s diabetes when she refused
to document Plaintiff’s foot condition on approximately June 2, 2016;
Count 4 – Wexford Health Sources has an unconstitutional policy of instructing medical
care providers not to prescribe antibiotics when medically indicated due to cost concerns.

In order to state a clam 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.

An

objectively serious condition includes an ailment that has been “diagnosed by a physician as
mandating treatment,” one that significantly affects an individual’s daily activities, or which
involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
“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). The Eight 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).
Here Plaintiff has alleged that he suffered from diabetes and that his feet were susceptible
to diabetes-related complications. He alleges that Rice ignored his medical needs and insisted
that he wear shoes that were unsuitable to his condition. He also alleges that Coe failed to

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adequately address his condition and that Blanchard stood by and approved his conduct when she
acquiesced in the request to falsify Plaintiff’s medical records. This is sufficient to state a claim
for deliberate indifference against these individuals. Although Plaintiff’s allegations regarding
Blanchard’s participation in his care are minimal, liability can attach in a deliberate indifference
claim against those that observe unconstitutional conduct and facilitate it, approve it, condone it,
or turn a blind eye. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Because Plaintiff
has alleged that Blanchard helped Coe cover up his lack of treatment, the claims against her will
survive at this time.
Finally, Plaintiff alleges that at least some of Coe’s treatment decisions were made
pursuant to an unconstitutional policy promulgated by Wexford. For purposes of § 1983, the
courts treat “a private corporation acting under color of state law as though it were a municipal
entity,” Jackson v. Ill. Medi–Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002), so Wexford will be
treated as a municipal entity for this suit. “[T]o maintain a § 1983 claim against a municipality,
[a plaintiff] must establish the requisite culpability (a ‘policy or custom’ attributable to municipal
policymakers) and the requisite causation (the policy or custom was the ‘moving force’ behind
the constitutional deprivation).” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)
(quoting Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978)). Plaintiff has alleged that
Coe acted pursuant to a Wexford policy of not prescribing expensive antibiotics.

At this

juncture, this allegation is sufficient to proceed against Wexford. Therefore, Count 4 also
survives threshold review.
Pending Motions
Plaintiff’s Motion for Recruitment of Counsel will be referred to a magistrate judge for
disposition. (Doc. 3). Because Plaintiff has been granted leave to proceed in forma pauperis

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and, as a result, the Court will have the defendants served, Plaintiff’s Motion for Service of
Process at Government Expense is DENIED as MOOT. (Doc. 4).
Disposition
IT IS ORDERED that Plaintiff’s Counts 1-4 survive threshold review
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Coe, Blanchard,
Wexford, and Rice: (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 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.
IT IS FURTHER ORDERED that, 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.
IT IS FURTHER ORDERED that 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

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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 Reona J. Daly for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Daly for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
IT IS FURTHER ORDERED that 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, notwithstanding 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

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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: December 16, 2016

s/ STACI M. YANDLE
U.S. District Judge

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