Rogers v. Wexford Health Care Sources et al

Filing 10

IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file his First Amended Complaint, stating any facts which may exist to support a medical indifference claim related to his back, neck, and shoulder pain, within 28 days of the entry of this order (on or before March 29, 2017). Should Plaintiff fail to file his First Amended Complai nt within the allotted time or consistent with the instructions set forth in this Order, the entire action shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 3/29/2017). Signed by Judge Nancy J. Rosenstengel on 3/1/2017. (tjk)

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

MARCUS ROGERS,
Plaintiff,
vs.
WEXFORD HEALTH CARE SOURCES,
DR. SHAH,
PHIL MARTIN,
and ROGERICK MATTICKS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

–1294 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Marcus Rogers, an inmate in East Moline Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 relating to defendants’
treatment of pain in Plaintiff’s back, neck, and shoulder at Robinson Correctional Center.
(Doc. 1). 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.

1

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 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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: Plaintiff went to sick
call on March 3, 2016 for “extreme pain” in his back, neck, and shoulder. (Doc. 1, p. 6). He was
given Ibuprofen, and two weeks later, was seen by Shah, a doctor, who told Plaintiff he had a
pulled muscle and also needed to lose weight. Id. Plaintiff claims many inmates are told this, or
that they have arthritis or need to drink more water, when they visit the doctor. Id. Plaintiff asked
for an x-ray, but was told by Martin, the Health Care Unit Administrator, that he did not need an
x-ray as his was a muscle issue. Id. On March 18, 2016, Shah ordered x-rays for Plaintiff, stating
that the problem could be a pinched nerve. Id. Plaintiff was refused pain medication at that time.
Id. On April 18, 2016, Plaintiff “asked Dr. Shah about an MRI,” to which he responded that
Plaintiff need to lose weight and drink more water. Id. On April 19, 2016, when the test results
came back, Martin stated that Plaintiff’s x-rays showed “mild degenerative changes.” Id.

2

Plaintiff claims that Wexford Health Care Sources does not want to send him, or other
inmates, to outside facilities for MRIs. (Doc. 1, p. 7). Plaintiff alleges that this, along with other
cost cutting measures including using cheap medication, are the result of “a custom and policy”
of Wexford cutting costs associated with inmate care because Wexford “is under a budgeted bid
through IDOC.” Id. Plaintiff seems to be attributing the defendants’ failure to send him to an
outside facility for an MRI, despite their awareness of his “continuing problems [and] pain
associated with the problems in in neck and shoulders,” to this policy. Id. Plaintiff requests
monetary damages from each of the defendants. (Doc. 1, p. 8).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to designate a
single count in this pro se action. 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.
Count 1:

Defendants exhibited deliberate indifference to Plaintiff’s serious
medical needs related to the extreme pain in his back, neck, and
shoulder in violation of the Eighth Amendment.

As to this claim, the Supreme Court has recognized that “deliberate indifference to
serious medical needs of prisoners” may constitute cruel and unusual punishment under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S.
825 (1994); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This encompasses a
broader range of conduct than intentional denial of necessary medical treatment, but it stops
short of “negligen[ce] in diagnosing or treating a medical condition.” Estelle, 429 U.S. at 106.
See also Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001).
To prevail on an Eighth Amendment claim, a plaintiff must show that the
responsible prison officials were deliberately indifferent to his serious medical
needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Dunigan ex rel. Nyman
v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). Deliberate indifference
3

involves a two-part test. 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). However, the Supreme Court stressed that
this test is not an insurmountable hurdle for inmates raising Eighth Amendment claims:
[A]n Eighth Amendment claimant need not show that a prison official acted or
failed to act believing that harm actually would befall an inmate; it is enough that
the official acted or failed to act despite his knowledge of a substantial risk of
serious harm . . . . Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence . . . and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that
the risk was obvious.
Farmer, 511 U.S. at 842.
The Seventh Circuit has held that a medical need is “serious” where it has either “been
diagnosed by a physician as mandating treatment” or where the need is “so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111
F.3d 1364, 1373 (7th Cir. 1997). See also Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D. N.H.
1977); Mahan v. Plymouth County House of Corr., 64 F.3d 14, 18 (1st Cir. 1995); Monmouth
Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S.
1006; Sheldon v. Penzley, 49 F.3d 1312, 1316 (8th Cir. 1995); Riddle v. Mondragon, 83 F.3d
1197, 1202 (10th Cir. 1996); Hill v. DeKalb Regional Youth Detention Ctr., 40 F.3d 1176, 1186
(8th Cir. 1994).
The Seventh Circuit considers the following to be indications of a serious medical need:
(1) where failure to treat the condition could “result in further significant injury or the
unnecessary and wanton infliction of pain”; (2) “[e]xistence of an injury that a reasonable doctor
or patient would find important and worthy of comment or treatment”; (3) “presence of a

4

medical condition that significantly affects an individual’s daily activities”; or (4) “the existence
of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The Seventh Circuit’s decisions following this standard for deliberate indifference in the
denial or delay of medical care require evidence of a defendant’s actual knowledge of, or
reckless disregard for, a substantial risk of harm. See Chavez v. Cady, 207 F.3d 901, 906 (7th
Cir. 2000) (officers were on notice of seriousness of condition of prisoner with ruptured
appendix because he “did his part to let the officers know he was suffering”). The Circuit also
recognizes that 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); Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir.
2003) (courts will not take sides in disagreements with medical personnel’s judgments or
techniques). However, a plaintiff inmate need not prove that a defendant intended the harm that
ultimately transpired or believed the harm would occur. Walker v. Benjamin, 293 F.3d 1030,
1037 (7th Cir. 2002) (discussing Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996)).
Plaintiff claims that defendants Shah and Martin were deliberately indifferent in refusing
to refer him to an outside facility for an MRI for his “continuing problems and pain.” (Doc. 1, p.
7). Plaintiff’s pain issues, per the Complaint, began on March 3, 2016. (Doc 1, p. 6). Plaintiff
claims he inquired about an MRI as late as April 18, 2016, approximately six weeks later, but
does not allege that the pain continued any longer than that. Id. According to the Complaint,
Shah told Plaintiff initially he likely had a pulled muscle and needed to lose weight, but after
receiving the results from the x-ray, Martin indicated that Plaintiff’s results “showed mild
degenerative changes.” Id. While Plaintiff’s condition may constitute a serious medical need, this
Court does not have the information necessary to make such a determination, as there is little

5

information in the Complaint regarding the duration of the condition, the severity of the
condition, and how it may affect or may have affected Plaintiff’s daily activities.
Even assuming Plaintiff adequately alleged that his medical needs were serious, the
allegations in the Complaint show that Plaintiff received nearly continuous care from his first
sick call in early March to his request for an MRI in mid-April 2016. Id. This care included
Plaintiff being given Ibuprofen for pain, seeing Dr. Shah shortly thereafter, receiving an x-ray
within 15 days of claiming pain, receiving the results approximately one month later, and
discussing his diagnosis with Health Care Administrator Martin at that time. Id. Plaintiff,
rightfully, does not allege there was undue delay in his treatment. Instead, he seems to find a
constitutional violation based on his opinion as to what treatment he should have received from
the defendants.
Mere disagreement with a physician’s chosen course of medical treatment does not
amount to deliberate indifference under the Eighth Amendment, however. See Ciarpaglini v.
Saini, 352 F.3d 328, 331 (7th Cir. 2003); Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001)
(courts will not takes sides in disagreements about medical personnel’s judgments or
techniques); Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996). 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 difference of opinion between medical professionals
concerning the treatment of an inmate will not support a claim for deliberate indifference.
Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006); see also Garvin, 236 F.3d at 898.
Plaintiff’s clear disagreement with the defendants’ chosen course of treatment and
apparent belief that an MRI would have been more appropriate is therefore not enough to elevate

6

his claims of deliberate indifference to adequately state a claim upon which relief can be granted.
(Doc. 1, pp. 6-7). Plaintiff’s expressed skepticism as to how defendants could “see any mild
degenerative changes in an x-ray” and why he received an x-ray if Shah thought it was a muscle
issue is therefore unavailing. (Doc. 1, p. 6). Plaintiff’s issue was identified via x-ray, and there is
no indication it was inaccurate in any way. An MRI does not seem to have been necessary,
despite Plaintiff’s desire for one.
Plaintiff received care from the time he alleges his pain began to when the source of his
pain was diagnosed, and he does not claim that his care was necessarily ineffective or that his
pain is ongoing. There is no indication that Shah and Martin’s treatment of Plaintiff constituted
“inadvertent error, negligence or even ordinary malpractice,” much less rose to the level of an
Eighth Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th
Cir. 2008). Plaintiff has thus not shown that defendants Shah and Martin were deliberately
indifferent to his medical needs.
With respect to defendant Wexford Health Care Sources, the Seventh Circuit has held
that a corporate entity violates an inmate’s constitutional rights, in this case showing deliberate
indifference to Plaintiff’s serious medical needs, only when it has a policy that creates conditions
that infringe upon an inmate’s constitutional rights. See 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). Plaintiff has failed to sufficiently allege that his constitutional rights were
infringed with respect to the care that he received. Despite his allegation that Wexford may
maintain a policy to use “cost considerations” and give “cheaper medications,” he does not

7

sufficiently connect this alleged policy to any unconstitutional deprivation. (Doc. 1, p. 7).
Defendant Wexford shall therefore also be dismissed at this time.
Finally, with respect to Defendant Matticks, Plaintiff has failed to make any specific
allegation against him. It is well established that “[f]or constitutional violations under § 1983 ... a
government official is only liable for his or her own misconduct.” E.g., Locke v. Haessig,
788 F.3d 662, 669 (7th Cir. June 5, 2015). This means that to recover damages against a prison
official acting in a supervisory role, a § 1983 plaintiff may not rely on a theory of respondeat
superior and must instead allege that the defendant, through his or her own conduct, has violated
the Constitution. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Aside from a general
description of Matticks’s role as “Medical Director for the Southern District,” Plaintiff does not
provide any facts that implicate Matticks in this case, so he will also be dismissed.
Based on the foregoing, Count 1 against Shah, Martin, Wexford Health Sources, and
Matticks will be dismissed. Out of an abundance of caution, this dismissal shall be without
prejudice.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3), which is hereby
DENIED without prejudice. There is no constitutional or statutory right to appointment of
counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). Federal
District Courts have discretion under 28 U.S.C. § 1915(e)(1) to request counsel to assist pro se
litigants. Id. When presented with a request to appoint counsel, the Court must consider: “(1) has
the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded
from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent
to litigate it himself [.]” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).

8

With regard to the first step of the inquiry, there is no indication whether Plaintiff has
attempted to obtain counsel on his own or has been effectively precluded from doing so. Because
Plaintiff has not made this showing, the Court finds that Plaintiff has not made a reasonable
attempt to find counsel. Therefore, denial of Plaintiff’s motion for the appointment of counsel is
appropriate.
Plaintiff has also filed a Motion for Service of Process at Government Expense (Doc. 4),
which is hereby DENIED as moot because Plaintiff has been given leave to proceed in forma
pauperis in this case and, further, Plaintiff’s Complaint is being dismissed, rendering service
unnecessary.
Disposition
IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff
shall file his First Amended Complaint, stating any facts which may exist to support a medical
indifference claim related to his back, neck, and shoulder pain, within 28 days of the entry of this
order (on or before March 29, 2017). 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 action
shall be dismissed with prejudice for failure to comply with a court order and/or for failure to
prosecute his claims. FED. R. APP. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051
(7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).
Such dismissal shall count as one of Plaintiff’s three allotted “strikes” within the meaning of
28 U.S.C. § 1915(g).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended

9

that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e. 16-cv-1294NJR). The pleading 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 the Eighth Amendment deliberate
indifference claims will be severed into new cases, new case numbers will be assigned, and
additional filing fees will be assessed.
Plaintiff is warned that the Court takes the issue of perjury seriously, and that any facts
found to be untrue in the First Amended Complaint may be grounds for sanctions, including
dismissal and possible criminal prosecution for perjury. Rivera v. Drake, 767 F.3d 685, 686 (7th
Cir. 2014) (dismissing a lawsuit as a sanction where an inmate submitted a false affidavit and
subsequently lied on the stand).
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
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A. No service shall be ordered on any Defendant until after the Court completes
its § 1915A review of the First Amended Complaint.

10

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 a First 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).
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
IT IS SO ORDERED.
DATED: March 1, 2017

___________________________
NANCY J. ROSENSTENGEL
United States District Judge

11