Mann v. Shah et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/15/2017. (jaj)

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

ROBERT MANN,
No. M04569,
Plaintiff,
vs.
VIPIN SHAH,
MICHAEL SCOTT,
DAN VACEL,
TRACY PEEK,
CHRISTINE L. BROWN,
WEXFORD HEALTH SOURCES, INC.,
JOHN DOE, and
JANE DOE,
Defendants.

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Case No. 17-cv-336-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Robert Mann, formerly an inmate in Pinckneyville Correctional Center
(“Pinckneyville”), brings this action for deprivations of his constitutional rights pursuant to
42 U.S.C. § 1983. Plaintiff filed this action on April 3, 2017, while still incarcerated. The
following day, Plaintiff was released on parole. Plaintiff contends officials at Pinckneyville
denied him treatment for a torn rotator cuff. In connection with these claims, Plaintiff sues
Wexford Health Sources, Inc., (corporate healthcare provider), Vipin Shah (physician), Michael
Scott (physician), Dan Vacel (orthopedist), Tracy Peek (nurse), Christine L. Brown (healthcare
administrator), John Doe (physician) and Jane Doe (nurse). According to the Complaint, Plaintiff
sues all Defendants in their individual capacities, and he is seeking monetary damages.

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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
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; portions of this action are subject to
summary dismissal.
The Complaint
Plaintiff suffers from a torn rotator cuff in his left shoulder. (Doc. 1, p. 7). This injury
was diagnosed by medical staff at the Lake County Jail in April or June 2015. (Doc. 1, p. 12).

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The injury causes severe and ongoing pain. (Doc. 1, pp. 8, 10). At the time of filing, Plaintiff
continued to suffer from the shoulder injury and associated pain. (Doc. 1, p. 9).
Plaintiff generally alleges that, after being transferred to Pinckneyville in August 2015,
he repeatedly sought treatment for his shoulder injury. (Doc. 1, pp. 7-11). He submitted
numerous sick-call requests. Id. According to the Complaint, “many” of his sick-call requests
were ignored. (Doc. 1, pp. 7, 11, 13). When Plaintiff was able to meet with medical staff, he
contends he received inadequate and/or ineffective treatment. (Doc. 1, pp. 7-11). It appears that
medical staff treated Plaintiff’s injury with physical therapy and ibuprofen – treatments Plaintiff
contends were ineffective. (Doc. 1, pp. 7-11; Doc. 1-1, pp. 2-28). Plaintiff repeatedly complained
about his ongoing pain and repeatedly requested surgery, treatment from an outside specialist,
and an MRI. Id. Plaintiff also complained that if surgery was delayed for too long, his injury
could become permanent. Id. When his requests were denied, Plaintiff filed grievances detailing
his injury and ongoing pain, his need for medical treatment, and the inadequacies of his current
treatment. (Doc. 1, pp. 11-12; Doc. 1-1, pp. 16-28).
Many of the allegations included in the Complaint regarding Plaintiff’s inadequate
medical care are not directed at any specific defendant. (See e.g., (Doc. 1, p. 10) (alleging that
Plaintiff made dozens of requests for an MRI but all were denied by the Pinckneyville
Healthcare Department); (Doc. 1, p. 10) (alleging Plaintiff filled out numerous sick call requests
to make “them” aware of his ongoing medical issues); (Doc. 1, p. 10) (Plaintiff made between 20
and 30 requests to the Pinckneyville Healthcare Department)). Similarly, some of the factual
allegations that are directed at specific defendants are conclusory and not supported by any
specific facts. (See e.g. (Doc. 1, p. 11) (alleging that Pinckneyville Medical staff and Wexford
Health Source Inc., including Dr. Doe, Nurse Doe, and Jane Does, failed to diagnose Plaintiff’s

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medical condition but failing to provide any facts regarding Plaintiff’s interactions with these
individuals)). However, Plaintiff also attaches relevant grievances that provide a detailed history
of Plaintiff’s alleged inadequate medical care.
The Court notes the following factual allegations that are associated with one or more
defendants:
Plaintiff was in segregation for approximately one month in August 2015. During this
time, Plaintiff repeatedly submitted sick call requests and “many” were ignored. Shah,
Vacel, and an unidentified nurse (Defendant Jane Doe) refused to assist Plaintiff and told
Plaintiff he could not be treated until he was released from segregation. (Doc. 1, p. 7).
Plaintiff had a sick-call visit with Peek, a nurse, on February 22, 2017. Peek did not
follow routine examination procedures. Peek offered Plaintiff ibuprofen and informed
him he would not be seeing a physician because Scott, one of Plaintiff’s physicians, no
longer worked at the prison. Peek did not examine Plaintiff’s shoulder or respond to
Plaintiff’s complaints regarding his shoulder (other than to offer Plaintiff ibuprofen).
(Doc. 1, pp. 8-9).
At various times, Shah, Scott, Dan, and Peek told Plaintiff his surgical request had been
submitted to Wexford for further review.
Shah and Scott submitted Plaintiff’s request for surgery to Wexford. The request was
denied. When Plaintiff asked Shah why the request had been denied, Shah indicated he
did not know but that it may be because the surgery is too expensive. After Plaintiff’s
surgery was denied, he continued to complain to Scott about his ongoing pain and his
need for appropriate treatment. Plaintiff’s complaints were ignored. (Doc. 1, pp. 9-10).
After Plaintiff’s surgical request was denied, he complained to Brown about his
continued inadequate care, his shoulder injury and ongoing pain, and his need for
surgery. His complaints were ignored. (Doc. 1, p. 10).
As to Wexford, Plaintiff generally alleges that Wexford (or Wexford’s staff) denied his
request for surgery and/or failed to respond to his numerous requests for adequate
treatment. (Doc. 1, pp. 7-13).
Discussion
Based on the allegations of the Complaint, the attached exhibits, and Plaintiff’s
articulation of his claims, the Court finds it convenient to divide the pro se action into a single
count. Any other claim that is mentioned in the Complaint but not addressed in this Order should
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be considered dismissed without prejudice as inadequately pled under the Twombly pleading
standard.
COUNT 1 - Defendants responded to Plaintiff’s serious medical need (torn rotator cuff
and associated pain) with deliberate indifference, in violation of the Eighth
Amendment.
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. The designation of this count does
not constitute an opinion as to its merit.
It is well established that prison officials and medical personnel violate the Eighth
Amendment when they act with deliberate indifference to an inmate’s serious medical needs.
Rasho v. Elyea, No. 14-1902, 2017 WL 892500 (7th Cir. Mar. 7, 2017) (citing Estelle v. Gamble,
429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016)). To state a claim
in this context, a plaintiff must demonstrate that he suffered from a serious medical condition
(i.e., objective standard) and the prison official responded with deliberate indifference (i.e.,
subjective standard). Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016) (citing Farmer, 511
U.S. at 834; Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)).
Plaintiff describes a previously diagnosed torn rotator cuff that caused ongoing and
severe pain. The Court finds that this condition is sufficiently serious to support an Eighth
Amendment claim at screening.
As set forth more fully below, the allegations in the Complaint are also sufficient to
support a deliberate indifference claim with respect Shah, Vacel, Scott, Peek, Jane Doe, and
Brown. The Complaint does not support a deliberate indifference claim, however, as to Wexford
and the John Doe physician.

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Prison Physicians (Shah, Vacel, and Scott) and Nurses (Jane Doe and Peek)
Although Plaintiff received ibuprofen and physical therapy, he contends these treatments
were inadequate and that he relayed this information to medical staff. Despite ongoing pain and
Plaintiff’s repeated complaints, Plaintiff never received an MRI, surgery, or evaluation from an
outside specialist. According to the Complaint, Shah, Vacel, and an unidentified nurse refused to
provide Plaintiff with any treatment during his stay in segregation. Plaintiff alleges that Peek
failed to provide adequate care during a sick call and failed to refer Plaintiff to a physician for
further treatment. Shah indicated that Plaintiff’s surgery may have been denied due to financial
concerns and nonetheless failed to intervene on Plaintiff’s behalf. Also, after Plaintiff’s surgical
request was denied, he continued to grieve his condition to Scott to no avail.
Deliberate indifference can occur even when some medical care has been provided. The
“receipt of some medical care does not automatically defeat a claim of deliberate indifference.”
Perez, 792 F.3d at 777 (citing Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007)). See also
Arnett, 658 F.3d at 751 (prisoner need not show that his medical needs were literally ignored).
The standard is satisfied if the physician acts in a manner that is “contrary to the
recommendation of specialists” or “delays a prisoner’s treatment for non-medical reasons,
thereby exacerbating his pain and suffering.” Perez, 792 F.3d at 777 (citing Arnett, 658 F.3d at
753; McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)). This is essentially what Plaintiff
alleges in his Complaint. Accordingly, the Court will allow Plaintiff to pursue his deliberate
indifference to medical needs claim against Shah, Vacel, Scott, Peek, and the Jane Doe nurse.
Healthcare Administrator
Plaintiff alleges that he complained to Brown regarding his injury, continued inadequate
treatment, and ongoing severe pain. Plaintiff has also attached grievances to his Complaint,

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although it is not entirely clear that the grievances were reviewed by Brown. The Court will
allow the Complaint to proceed against Brown to allow for further development of the record.
See Perez, 792 F.3d at 781-82.
Wexford
Wexford is a private corporation that serves as Pinckneyville’s healthcare provider. In the
Seventh Circuit, a private corporation generally cannot be held liable under § 1983, unless it
maintained an unconstitutional policy or custom. Perez, 792 F.3d at 780 (citing Woodward v.
Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2014)). Here, although Plaintiff faults
Wexford for his inadequate medical care, the Complaint falls short of alleging that his
inadequate medical care was the result of a policy or custom maintained by Wexford.
Accordingly, this claim shall be dismissed without prejudice as to Wexford. As this is the only
claim asserted against Wexford, Wexford shall be dismissed from this action without prejudice.
John Doe Physician
Plaintiff generically alleges that the John Doe physician failed to diagnose his condition,
but he does not provide any specific factual allegations with respect to the unidentified
physician. Accordingly, the deliberate indifference claim shall be dismissed without prejudice as
to the unidentified physician. As this is the only claim asserted against this Defendant, he shall
be dismissed from the action without prejudice.
Identification of Jane Doe Nurse
Plaintiff shall be allowed to proceed against the specified Jane Doe Nurse. However, this
defendant must be identified with particularity before service of the complaint can be made on
her. Where a prisoner’s complaint states specific allegations describing conduct of individual
prison staff members sufficient to raise a constitutional claim, but the names of those defendants

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are not known, the prisoner should have the opportunity to engage in limited discovery to
ascertain the identity of those defendants. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 832 (7th Cir. 2009). Guidelines for discovery will be set by the United States Magistrate
Judge.
In order to assist Plaintiff in identifying the proper defendant in this action, the Clerk
shall be directed to add the current Warden of Pinckneyville (Karen Jaimet, Acting Warden of
Pinckneyville), for the sole purpose of identifying the unknown defendant through discovery.
Once Plaintiff discovers the unknown defendant’s name, Plaintiff shall file a motion to substitute
each newly identified defendant in place of the generic designations in the case caption and
throughout the Complaint.
Pending Motions
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis has been granted. (Doc. 6).
Accordingly, service of summons and the Complaint will be effected at government expense.
See 28 U.S.C. § 1915(d). In light of this decision, Plaintiff’s Motion for Service of Process at
Government Expense (Doc. 4) is DENIED as moot.
Plaintiff also has filed a Motion for Recruitment of Counsel. (Doc. 3). This motion shall
be REFERRED to United States Magistrate Judge Donald G. Wilkerson.
Disposition
The Clerk is DIRECTED to terminate WEXFORD, and JANE DOE as parties in
CM/ECF.
The Clerk is DIRECTED to add the current Warden of Pinckneyville (Karen Jaimet,
Acting Warden of Pinckneyville), for the sole purpose of identifying the unknown defendant
through discovery.

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IT IS HEREBY ORDERED that COUNT 1 is subject to further review against
Defendants SHAH, SCOTT, VACEL, PEEK, BROWN, and JANE DOE. COUNT 1 is
DISMISSED without prejudice as to WEXFORD and JOHN DOE.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants SHAH, SCOTT,
VACEL, PEEK, BROWN, JANE DOE, and JAIMET: (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.
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.
Service shall not be made on Defendant JANE DOE until such time as Plaintiff has
identified her by name in a properly filed motion for substitution of parties. Plaintiff is
ADVISED that it is his responsibility to provide the Court with the name and service address for
this individual.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is

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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 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 Donald G. Wilkerson for further pre-trial proceedings, including a plan for discovery
aimed at identifying the unknown defendant with particularity and a ruling on Plaintiff’s Motion
for Recruitment of Counsel (Doc. 3). Further, this entire matter shall be REFERRED to United
States Magistrate Wilkerson 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, regardless of whether
his application to proceed in forma pauperis is 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

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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: May 15, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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