Stewart v. Lashbrook et al

Filing 121

ORDER REJECTING 113 Report and Recommendation and GRANTING the Motions to Dismiss Count 5 filed by the IDOC Defendants (Doc. 70 ) and the Wexford Defendants (Doc. 77 ). The Wexford Defendants' alternative Motion to Strike is DENIED. Count 5 is DISMISSED without prejudice. The Clerk of Court is DIRECTED to substitute the Defendants in their official capacity as noted in footnotes 1-3. Because Defendants Rob Jeffreys and Steven Meeks are only named as defendants in their official capacities in Count 5, they are also DISMISSED without prejudice. Signed by Chief Judge Nancy J. Rosenstengel on 9/27/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAVAR STEWART,
individually and on behalf of all others
similarly situated,
Plaintiff,
Case No. 3:16-CV-1321-NJR-MAB

v.
JACQUELINE LASHBROOK,
MICHAEL D. SCOTT,
KIMBERLY FERRARI,
WEXFORD HEALTH SOURCES, INC.,
SALVADOR GODINEZ,
and LOUIS SHICKER,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on the Report and Recommendation of Magistrate
Judge Mark A. Beatty (Doc. 113), which recommends the undersigned deny the partial
motions to dismiss filed by Defendants Jaqueline Lashbrook, 1 Salvador Godinez, 2 and
Louis Shicker 3 (“the IDOC Defendants”) (Doc. 70), and Defendants Wexford Health
Sources, Inc., Kimberly Ferrari, and Michael D. Scott (“the Wexford Defendants”)
(Doc. 77). Defendants timely objected to the Report and Recommendation (Docs. 116,
117). Plaintiff Javar Stewart filed a response to these objections (Doc. 118). For the reasons
1 Scott Thompson is the current Warden of Pinckneyville Correctional Center, and therefore is substituted
in place of Jacqueline Lashbrook, in her official capacity, pursuant to Federal Rule of Civil Procedure 25(d).
2 Rob Jeffreys is the current Acting Director of the Illinois Department of Corrections, and therefore is
substituted in place of Salvador Godinez, in his official capacity, pursuant to Rule 25(d).
3 Steven Meeks is the current Medical Director for the Illinois Department of Corrections, and therefore is
substituted in place of Louis Shicker, in his official capacity, pursuant to Rule 25(d).

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set forth below, both the IDOC Defendants and the Wexford Defendants objections
are sustained. The Court respectfully rejects Judge Beatty’s Report and Recommendation
and grants both motions to dismiss Count 5 of the Amended Complaint.
BACKGROUND
Stewart, an inmate of the Illinois Department of Corrections (“IDOC”), filed a pro
se complaint pursuant to 42 U.S.C. § 1983 for claims arising from allegedly delayed
medical treatment for a knee injury (Doc. 1). He was subsequently appointed counsel,
who filed an Amended Complaint, adding several defendants and asserting a putative
class action (Doc. 59). Stewart’s Amended Complaint was divided into five counts:
Count 1:

Claim for alleged violation of the Plaintiff’s rights under the
Eighth Amendment against Defendant Jacqueline Lashbrook;

Count 2:

Claim for alleged violation of the Plaintiff’s rights under the
Eighth Amendment against Defendant Kimberly Ferrari;

Count 3:

Claim for alleged violation of the Plaintiff’s rights under the
Eighth Amendment against Defendant Michael Scott;

Count 4:

Claim for alleged violation of the Plaintiff’s rights under the
Eighth Amendment against Defendant Wexford;

Count 5:

Claim for alleged violation of the putative class members’
rights under the Eighth Amendment against Defendants
Wexford and the State Defendants.

Stewart’s Amended Complaint, specifically Count 5, indicates that he will seek to
move for class status to represent “all inmates who are or will be under the direct care
and medical supervision of the named Defendants and subjected to the policies and
practices in the provision of medical care.” (Doc. 59, p.17, ¶ 123; pp. 24-25, ¶¶150-154).
Defendants now seek dismissal of Count 5 pursuant to Federal Rule of Civil Procedure

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12(b)(6) for failure to state a claim upon which relief may be granted. Alternatively, they
seek to strike Count 5 under Federal Rule of Civil Procedure 12(f). More specifically,
Defendants argue Count 5 should be dismissed because the members of Stewart’s
proposed class are already part of, and thus bound by, an “essentially identical” certified
class in Lippert, et al. v. Baldwin, et al., pending in the Northern District of Illinois (Case
No. 10-cv-4603). The Rule 23(b)(2) class in Lippert has been certified as representing “all
prisoners in the custody of the Illinois Department of Corrections (IDOC) requiring
medical care and treatment while incarcerated.” (Lippert, 10-4603, Doc. 534, p. 20).
Stewart’s Amended Complaint claims that the lack of adequate care from the
IDOC Defendants and Wexford Defendants has exposed all inmates to substantial risk of
harm in violation of the Eighth Amendment (Doc. 59, p.2, ¶4). Specific to Count 5, Stewart
asserts, on behalf of the putative class, that Defendants failed to provide: (1) adequate
staffing on weekends and holidays; (2) health care providers possessing the requisite
education, training, and experience; (3) prompt referrals for off-site medical care; and
(4) timely emergency treatment. (Id., p.25, ¶152). Stewart prayed for a mandatory
injunction requiring the Wexford Defendants and the IDOC Defendants to submit and
implement a plan describing the measures they will take to provide constitutionallyadequate care and services. (Id. at, p.26, ¶3).
The Lippert class action also alleges that the health care provided to incarcerated
individuals in the IDOC violates Eighth Amendment constitutional standards. (Lippert,
10-4603, Doc. 534, p. 1). Specifically, the Lippert class identifies nine IDOC policies and
practices that put the class at a substantial risk of harm, in pertinent part: (1) failing to fill
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medical leadership and other medical staff vacancies; (2) permitting under-qualified
medical professionals to treat prisoners; (3) failing to timely identify medical problems at
reception and intrasystem transfer; and (6) delaying and denying specialty care (Id., p.6).
The Lippert class prayed for injunctive relief barring unconstitutional practices and
requiring the IDOC to submit and implement a plan to address these violations. (Id., p.1).
THE REPORT AND RECOMMENDATION AND OBJECTIONS
On June 12, 2019, Judge Beatty entered a Report and Recommendation that
recommends the undersigned deny Defendants’ Motions to Dismiss (Doc. 113). Judge
Beatty was unpersuaded by Defendants’ argument that the putative class action
proposed in Count 5 is duplicative of the Lippert class, concluding that there were
substantial differences between each class action. In particular, Judge Beatty concluded
that each action was: not filed by the same plaintiff, not filed in the same district court,
did not include the same defendants, and did not involve the same issues. (Id.) In short,
he concluded that the outcome in Lippert would not likely remedy the allegations of
systemically-flawed staffing schedules of the IDOC which this class addresses (Id., p. 5).
The IDOC Defendants filed a timely objection, exhibiting the Consent Decree from
the Lippert case, and arguing that Lippert requires dismissal of Count 5 because the claims
are covered and duplicative relief is sought (Doc. 116). The Wexford Defendants also filed
a timely objection, arguing similarly that the class is duplicative and should not be
certified because Stewart is a member of the Lippert class (Doc. 117). Stewart filed a timely
response arguing that the grounds for attacking the proposed class is premature and that
there are significant differences between the two classes (Doc. 118).

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LEGAL STANDARDS
When timely objections are filed, the Court must undertake de novo review of the
Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR
73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas
v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). This requires the Court to look at all evidence
contained in the record, give fresh consideration to those issues to which specific
objections have made, and make a decision “based on an independent review of the
evidence and arguments without giving any presumptive weight to the magistrate
judge’s conclusion.” Harper, 824 F.Supp. at 788 (citing 12 CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part));
Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court may then “accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal if a party has failed
to state a claim upon which relief can be granted. Dismissal of a complaint should be
granted if “it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Turner/Ozanne v. Hyman/Power, 111 F.3d
1312, 1319 (7th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). District
courts have ample discretion to dismiss duplicative litigation. Trippe Mfg. Co. v. Am. Power
Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995).
A motion to strike portions of a pleading is properly brought under Rule 12(f).
First Impressions Salon, Inc. v. National Milk Producers Fed’n, 214 F. Supp. 3d 723, 735 (S.D.

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Ill. 2016). Under Rule 12(f), a court may “strike from a pleading . . . any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike
may “remove unnecessary clutter from the case,” serving to expedite proceedings. Heller
Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). A motion to
strike is also appropriate where the pleadings are prejudicial to the non-pleading party.
Tektel, Inc. v. Maier, 813 F. Supp. 1331, 1334 (N.D. Ill. 1992). Prejudice results where the
challenged allegation has the effect of confusing the issues. Id. The determination of
whether to strike material under Rule 12(f) lies within the trial court’s discretion. Talbot
v. Robert Matthews Distributing Co., 961 F.2d 654, 664 (7th Cir. 1992).
DISCUSSION
Defendants assert that the putative class proposed by Stewart in Count 5 is
duplicative of an existing certified class of which Stewart is already a member. As the
Supreme Court acknowledged over forty years ago, “there is ‘no precise rule’ for
resolving the problem created by mirror-image lawsuits in two different federal courts.”
Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 982 (7th Cir. 2010)
(quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).
But “[a]s a general rule, a federal suit may be dismissed for reasons of wise judicial
administration . . . whenever it is duplicative of a parallel action pending in another
federal court.” Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993) (internal
citations omitted). In order to show that the actions are “duplicative,” Defendants must
show that the parties, claims, and available relief are “substantially similar.” McReynolds
v. Merrill Lynch & Co., Inc., 694 F.3d 873, 889 (7th Cir. 2012).

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First, the parties here are substantially similar. Although Lippert was not filed by
Stewart, he is a member of the class that Lippert represents, being “a prisoner in the
custody of the Illinois Department of Corrections with serious medical… needs.” It is true
that “[o]utright dismissal is most likely to be appropriate when . . . the same party has
filed all of the suits.” Central States, S.E. & S.W. Areas Pension Fund v. Paramount Liquor
Co., 203 F.3d 442, 445 (7th Cir. 2000). But Central States, cited by Stewart in support of his
position, involved two suits filed by opposing parties, not a second class-action suit filed
by a plaintiff who is already a member of a certified class action.
Additionally, Lippert is a class certified under Rule 23(b)(2). Rule 23(b)(2) provides
that a class action may be maintained if Rule 23(a) is satisfied and if “the party opposing
the class has acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate respecting the
class as a whole.” FED. R. CIV. P. 23(b)(2). Because Lippert involves class-wide injunctive
relief, Stewart is bound by the class and may not opt-out. See Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 360, 362-63 (2011) (“[Rule 23] provides no opportunity for (b)(1) or
(b)(2) class members to opt out, and does not even oblige the District Court to afford them
notice of the action.”). The purpose behind a class action is to avoid duplicative cases and
inconsistent decisions, which is thwarted if multiple suits for injunctive relief are filed.
See FED. R. CIV. P. 23; Reese v. Chicago Police Dep’t, 602 F. Supp. 441, 442 (N.D. Ill. 1984)
(citing Goff v. Menke, 672 F.2d 702, 704 (8th Cir. 1982)).
Second, the fact that Lippert and this case were filed in different districts is not
dispositive. Stewart relies on Hecker v. Petco Animal Supplies, Inc. to argue that dismissal
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is appropriate only when the case is filed in the same district by the same plaintiff. Hecker
v. Petco Animal Supplies, Inc., No. 16-10857, 2017 WL 2461546 (N.D. Ill. June 7, 2017).
However, Hecker case was a class action brought under Rule 23(b)(3) in which members
had the right to opt-out because they were seeking individualized money damages, not
class-wide relief. As noted above, the class in Lippert consists of “all prisoners in the
custody of the Illinois Department of Corrections (IDOC) requiring medical care and
treatment while incarcerated.” Thus, it does not matter that the two cases were filed in
different judicial districts; Stewart is a member of the Lippert class.
Third, while the Wexford Defendants are not named Defendants in Lippert,
Wexford—a contracted vendor of the IDOC--and its employees are still bound by the
Lippert Consent Decree. The Consent Decree in Lippert, entered May 9, 2019, states:
“Defendants represent that any vendor contract will require vendors to comply with all
court orders, policies and procedures of IDOC.” (Doc. 116-1, p.21).
Finally, the claims and relief available are also substantially similar. First, the
specific claims brought forth for the putative class are essentially identical to that of
Lippert. See Riker v. Gibbons, No. 3:08-CV-00115-LRH-RAM, 2009 WL 910971, at *4 (D. Nev.
Mar. 31, 2009) (“Plaintiffs claim that [the prison] fails to afford them the level of medical
care required by the Eighth Amendment; thus, on a general level, the Plaintiffs’ injuries
are identical.”). Second, the plaintiffs in both cases have requested injunctive relief
barring unconstitutional practices and ask the Court to require the defendants to submit
and implement a plan to address the violations. In fact, the Consent Decree in Lippert
already provides a plan to address the violations and is to remain on the Court’s active
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docket until the defendants are determined to be in compliance with its terms (Doc. 1161, p. 25). The Consent Decree also contains a dispute resolution plan if the plaintiffs
believe the defendants are not in substantial compliance with any specific term (Id., p. 27).
In this respect, Lippert is broad enough to provide efficient avenues of resolution for any
claims that Count 5 addresses. Accordingly, Count 5 shall be dismissed.
CONCLUSION
For these reasons, the Court SUSTAINS Defendants’ objections (Docs. 117, 118)
and REJECTS the Report and Recommendation (Doc. 113). Defendants’ Motions to
Dismiss (Docs. 70, 77) are GRANTED; Wexford’s alternative Motion to Strike is
DENIED. Count 5 is DISMISSED without prejudice.
The Clerk of Court is DIRECTED to substitute the Defendants in their official
capacity as noted in footnotes 1-3. Because Defendants Rob Jeffreys and Steven Meeks
are only named as defendants in their official capacities in Count 5, they are also
DISMISSED without prejudice.
The action will now proceed on Counts 1-4 in Stewart’s individual capacity.
IT IS SO ORDERED.
DATED: September 27, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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