Viverette v. Wexford Health Sources Inc. et al

Filing 8

MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Defendant's Baker and Wexford shall be dismissed from the Complaint without prejudice. Plaintiffs Motion for Recruitment of Counsel (Doc. 3) shall be referred to a United States Magistrate Judge for a decision.Plaintiff's Motion for Service of Process at Government Expense (Doc. 4) is DENIED. IT IS HEREBY ORDERED that the Complaint shall receive further review as to BROOKS and TRAVIS. IT IS FURTHER O RDERED that the Clerk of Court shall prepare for Defendants BROOKS and TRAVIS: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 8/16/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY VIVERETTE,
No. M-35784,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES INC,
C. BROOKS,
N. BAKER, and
TRAVIS,

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Case No. 17−cv–586-JPG

Defendants.
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Jimmy Viverette, an inmate in Lawrence Correctional Center (“Lawrence”),
brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.
Plaintiff claims that officials at Lawrence were deliberately indifferent to his serious medical
condition (a partial tear in his Achilles tendon that required surgery). (Doc. 1, pp. 6-7). In
connection with his claims, Plaintiff sues Wexford Health Sources Inc. (a private corporation
contracted to provide healthcare for inmates at Lawrence), C. Brooks (a nurse), N. Baker (a
nurse), and Travis (a physician’s assistant). Plaintiff seeks compensatory and punitive damages.
(Doc. 1, p. 8).
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–
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(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).
The Complaint
On December 21, 2014, Plaintiff was playing basketball in the yard when he heard a loud
pop in the back of his leg (“like a gunshot”). (Doc. 1, p. 6). The resulting pain was so bad,
Plaintiff could not walk. Id. Plaintiff asked the correctional officer for medical assistance. Id. The
correctional officer contacted the healthcare unit and Brooks, a nurse, responded with a
wheelchair. Id.
Plaintiff informed Brooks that he heard something pop in his leg. Id. Brooks completed
an injury report. Id. On the injury report, Brooks checked the box for “follow up” but did not
mark the box for referral to a physician. Id. Brooks then told Plaintiff that everything looked
fine; he had simply pulled a muscle. Id. Brooks made Plaintiff walk back to his unit without

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assistance. Id. Plaintiff was in so much pain he had to hop on one leg. Plaintiff was never
contacted for a follow-up appointment. Id.1
Plaintiff suffered in pain for approximately one month before submitting another medical
request on January 24, 2015. Id. In connection with this request, Plaintiff was examined by an
unidentified nurse. Id. The unidentified nurse referred Plaintiff to a physician’s assistant.
Plaintiff was seen by Travis, a physician’s assistant, on January 29, 2015. Id. Travis
noted that Plaintiff had pain in his Achilles tendon but did not request an x-ray or provide any
other treatment. Id. Travis did not refer Plaintiff for an evaluation with a physician. Id. However,
Travis did “order a follow-up” examination. Id. Although Travis ordered a follow-up
examination, Plaintiff was not called back for a follow-up examination. Id. Accordingly, Plaintiff
submitted another medical request on March 18, 2015. At that time, Plaintiff was seen by Nurse
Baker. Id. Nurse Baker referred Plaintiff to Travis. Id.
On March 23, 2015, in accord with Nurse Baker’s referral, Plaintiff was seen a second
time by Travis. Id. This was the first time that Plaintiff’s leg was actually examined. (Doc. 1, p.
7). After examining Plaintiff’s leg, Travis referred Plaintiff to see the prison physician, Dr. Coe.
Id.
Plaintiff was examined by a physician (Dr. Coe) for the first time on March 30, 2015. Dr.
Coe observed a “deformity” in Plaintiff’s left calf and ordered an ultrasound. Id. The ultrasound
revealed a partial tear in Plaintiff’s Achilles tendon. Id. In April 2015, Plaintiff received a splint
for his injured leg. Id. Plaintiff was also referred to an orthopedic specialist. Id. Plaintiff had
surgery to repair the injury in May of 2015. Id.

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It is unclear whether Brooks actually examined Plaintiff’s leg or simply completed an injury report. The Complaint
does not state whether Brooks provided Plaintiff with any pain medication or other treatment.

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After surgery, Plaintiff experienced severe pain that was not controlled by the Tylenol he
was prescribed. Id. It is unclear whether Plaintiff is alleging that he is continuing to experience
pain (two years after his surgery). He further alleges that his recovery has been impeded by
officers who would not get him extra pillows to ensure he keeps his leg propped up. Id. Plaintiff
filed an emergency grievance with the warden but it was denied. Id.
Discussion
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 be considered
dismissed without prejudice as inadequately pled under the Twombly pleading standard.2
Count 1 -

Eighth Amendment claim for deliberate indifference to Plaintiff’s
serious medical condition against Defendants.

“Prison officials violate the Eighth Amendment's proscription against cruel and unusual
punishment when they display ‘deliberate indifference to serious medical needs of prisoners.’ ”
Greeno v. Daley, 414 F.3d 645, 652–53 (7th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97,
104 (1976)). To satisfy the objective element, Plaintiff must show that he had a serious medical
need. Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (quoting Roe v. Elyea, 631 F.3d 843,
857 (7th Cir. 2011)). To satisfy the subjective element, Plaintiff must show that Defendants
“were aware of [Plaintiff’s] serious medical need and were deliberately indifferent to it.” McGee,
721 F.3d at 480. This requires showing something more than negligence, but it does not require a
plaintiff to prove he was literally ignored. Roe, 631 F.3d at 857–58. Instead, it is sufficient to
“show that the defendants knew of a substantial risk of harm to the inmate and disregarded the
risk.” Id. at 858 (quoting Greeno, 414 F.3d at 653).
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In particular, the Complaint includes several allegations complaining about events occurring after Plaintiff’s
surgery. The allegations are insufficient to state a claim under Twombly and/or are not directed at any of the named
Defendants.

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For screening purposes, Plaintiff has alleged the existence of a serious condition. Factors
that indicate a serious condition include “the existence of an injury that a reasonable doctor or
patient would find important and worthy of comment or treatment; the presence of a medical
condition that significantly affects an individual's daily activities; or the existence of chronic and
substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Plaintiff alleges that,
while in the yard, he heard a loud pop in the back of his leg. The resultant pain was so bad
Plaintiff could not walk and had to be transported to the healthcare unit in a wheelchair.
Subsequent examination revealed a partial tear in Plaintiff’s Achilles tendon. The described
injury qualifies as a serious – at least at this stage of the litigation. See Id. at 1372 n.7
(considering the liberal notice pleading standards and the leniency with which pro se complaints
must be evaluated, “the ‘seriousness’ determination will often be ill-suited for resolution at the
pleading stage and will have to await summary judgment proceedings, at which point a fully
developed medical record will inform the court as to the nature of the inmate's condition.”).
Plaintiff’s Complaint also sufficiently alleges that Brooks and Travis acted with
deliberate indifference. Brooks concluded that Plaintiff was not injured and forced him to walk
back to his unit unassisted. At the time, Plaintiff was in so much pain he had to hop on one leg.
Brooks filled out an injury report, but it is not clear if Brooks actually examined Plaintiff’s injury
or provided any sort of treatment. Travis failed to examine Plaintiff’s leg during their first visit
and provided no treatment. Travis did not examine Plaintiff’s injury until Plaintiff was referred
to Travis for a second visit. The exam revealed an injury that eventually required surgery. As a
result of the alleged deliberate indifference, Plaintiff experienced delay (almost 3 months) before
receiving medical care for what turned out to be a torn Achilles tendon.
Notably, a defendant's inadvertent error, negligence or even ordinary malpractice is
insufficient to rise to the level of a constitutional violation. See Duckworth v. Ahmad, 532 F.3d
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675, 679 (7th Cir. 2008). Further factual development is necessary to determine whether Brooks
and Travis failed to treat Plaintiff because of error or incompetence (which does not violate the
Constitution) or whether each Defendant’s action (or inaction) amounted to unconstitutional
deliberate indifference to a serious medical need. Accordingly, the Complaint shall receive
further review as to Brooks and Travis.
The Complaint does not state a claim as to Baker or Wexford. The only allegation as to
Baker is that she referred Plaintiff to Travis for further treatment. The Complaint does not
suggest that she responded with deliberate indifference to Plaintiff’s serious medical need.
Wexford is identified as a Defendant in the caption of the Complaint. However, the Complaint
does not direct any allegations against Wexford, let alone suggest that the alleged constitutional
violation was the result of a policy or practice that can be attributed to Wexford. See Perez v.
Fenoglio, 792 F.3d 768, 780 (citing Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917,
927 (7th Cir. 2014)) (private corporation will generally only be held liable under § 1983 for an
unconstitutional policy or custom that results in a constitutional deprivation). Accordingly, Baker
and Wexford shall be dismissed from the Complaint without prejudice.
Pending Motions
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) shall be referred to a United
States Magistrate Judge for a decision.
Plaintiff's Motion for Service of Process at Government Expense (Doc. 4) is DENIED.
The Court will order service as a matter of course upon all defendants who remain in this action
pursuant to this screening order because Plaintiff is a prisoner who has been granted permission
to proceed in this action as a poor person. (Doc. 6).

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Disposition
IT IS HEREBY ORDERED that the Complaint shall receive further review as to
BROOKS and TRAVIS.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants
BROOKS and TRAVIS: (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.
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 a United States
Magistrate Judge for further pre-trial proceedings, including Plaintiff’s Motion to Appoint
Counsel (Doc. 3).

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Further, this entire matter shall be REFERRED to a United States Magistrate 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
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: August 16, 2017
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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