Scott v. Wexford Health Care Sources, Inc. et al

Filing 6

MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Plaintiffs Motion for Appointment of Counsel is referred to a United States Magistrate Judge for disposition. (Doc. 3). IT IS HEREBY ORDERED that Count 1 survives thresh old review against David and Blake. Wexford Health Sources is DISMISSED without prejudice. IT IS FURTHER ORDERED that if Plaintiff wishes to move the Court to reinstate the medical malpractice/negligence claim(s) in Count 2 against Defendants Blake and David, Plaintiff shall file the required affidavit(s) pursuant to 735 Ill. Comp. Stat. §5/2-622, within 35 days of the date of this order (on or before August 31, 2017). IT IS ORDERED that the Clerk of Court shall prepare for Defendants Blake and David: (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 7/26/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREGORY SCOTT,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES,INC.,
DAVID, and
BLAKE

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Case No. 17−cv–0638−JPG

Defendants.
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Gregory Scott, an inmate in Shawnee Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.

Plaintiff requests

compensatory and punitive damages. 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, 10261

27 (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 arrived at Shawnee Correctional Center on July 18, 2013. (Doc. 1, p. 7). As
part of intake, Plaintiff was sent to the health care unit for screening. Id. Five days later on July
23, 2013, Plaintiff had a doctor visit with Dr. David. Id. David diagnosed Plaintiff with high
cholesterol and prescribed medication. Id. After being on the medication for several days,
Plaintiff began feeling unwell and so signed up for sick call again. Id. That time, Plaintiff saw
Blake, a nurse practitioner, instead. Id. In response to Plaintiff’s complaints, Blake increased
the dosage of Plaintiff’s cholesterol medication. Id. Plaintiff alleges that he continued to feel
discomfort and every time he reported such symptoms to the health care unit, his dosage was
increased. Id.
On December 5, 2015, Plaintiff awoke in pain; he could not see out of his left eye or
move his left arm. Id. He was admitted to the health care unit for observation and given pain
medication. (Doc. 1, p. 8). Plaintiff saw the eye doctor, who referred him to an outside
specialist. Id. On January 6, 2016, Plaintiff was taken to the Marion Eye Center. Plaintiff was
told that the artery behind his left eye was completely blocked, which caused his blindness. Id.
Plaintiff is unlikely to regain the vision in his left eye. Id. Furthermore, damage was found in
his right eye as well. Id.

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When Plaintiff returned to Shawnee, David ran a diagnostic test which revealed that
Plaintiff was allergic to his cholesterol medication. Id. In addition to his vision problems,
Plaintiff has experienced damage to his right arm, including his fingers, arm, and shoulder, and
all the way up into his neck. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 2 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. The following
claim survives threshold review:
Count 1 – David and Blake were deliberately indifferent to Plaintiff’s serious
medical need in violation of the Eight Amendment when they persisted in
prescribing the same cholesterol medication despite Plaintiff’s repeated claims of
discomfort, leading to permanent and lasting damage;
Plaintiff has also attempted to bring another Count, but for the reasons elucidated below,
this claim does not survive threshold review.
Count 2 – David and Blake were negligent when they continued Plaintiff on a
prescription despite his repeated complaints in violation of Illinois state law.
As to Plaintiff’s Count 1, prison officials impose cruel and unusual punishment in
violation of the Eighth Amendment when they are deliberately indifferent to a serious medical
need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th
Cir. 2016). In order to state a claim 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. Petties v.
Carter, 836 F.3d 722, 727 (7th Cir. 2016). An objectively serious condition includes an ailment
that has been “diagnosed by a physician as mandating treatment,” one that significantly affects

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an individual’s daily activities, or which involves chronic and substantial pain. Gutierrez v.
Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). The subjective element requires proof that the
defendant knew of facts from which he could infer that a substantial risk of serious harm exists,
and he must actually draw the inference. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (citing
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
“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).

Deliberate

indifference may also be shown where medical providers persist in a course of treatment known
to be ineffective. Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010); Greeno v. Daley,
414 F.3d 645, 655 (7th Cir. 2005).
Plaintiff has alleged that he suffered from high cholesterol. High cholesterol can be a
serious medical need, McDonald v. Hardy, 821 F.3d 882, 889 (7th Cir 2016), and here Plaintiff
has alleged that he actually suffered from some severe side effects that can be caused by that
disease. Specifically, he has alleged that he experienced blocked arteries, and as a result of the
blocked arteries, he has lost function in two of his fingers, vision in one eye, and that he is at risk
for further harm. Plaintiff has adequately alleged that he suffered from a serious medical need.
Additionally, Plaintiff has alleged that he continued to complain to Blake and David about how
he felt on the medication.

Despite his complaints, Blake and David persisted in treating

Plaintiff’s condition only with the medication. Plaintiff further alleges that testing after his

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injuries revealed that he was allergic to his medication. On these facts, Plaintiff has made a
plausible allegation of deliberate indifference as to Blake and David. Count 1 survives threshold
review.
But Plaintiff’s Count 2 must be dismissed. Plaintiff has attempted to bring a claim for
medical malpractice pursuant to Illinois state law on the same facts discussed above. Where a
district court has original jurisdiction over a civil action such as a § 1983 claim, it also has
supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long
as the state claims “derive from a common nucleus of operative fact” with the original federal
claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A loose factual
connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008)
(citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)). While this
Court has supplemental jurisdiction over these state-law claims pursuant to 28 U.S.C. § 1367,
this is not the end of the matter.
Under Illinois law, a plaintiff “[i]n any action, whether in tort, contract or otherwise, in
which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other
healing art malpractice,” must file an affidavit along with the complaint, declaring one of the
following: 1) that the affiant has consulted and reviewed the facts of the case with a qualified
health professional who has reviewed the claim and made a written report that the claim is
reasonable and meritorious (and the written report must be attached to the affidavit); 2) that the
affiant was unable to obtain such a consultation before the expiration of the statute of limitations,
and affiant has not previously voluntarily dismissed an action based on the same claim (and in
this case, the required written report shall be filed within 90 days after the filing of the
complaint); or 3) that the plaintiff has made a request for records but the respondent has not

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complied within 60 days of receipt of the request (and in this case the written report shall be filed
within 90 days of receipt of the records). See 735 ILL. COMP. STAT. §5/2-622(a) (West 2017). A
separate affidavit and report shall be filed as to each defendant. See 735 ILL. COMP. STAT. §5/2622(b).
Failure to file the required certificate is grounds for dismissal of the claim. See 735 ILL.
COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). However,
whether such dismissal should be with or without prejudice is up to the sound discretion of the
court. Sherrod, 223 F.3d at 614. “Illinois courts have held that when a plaintiff fails to attach a
certificate and report, then ‘a sound exercise of discretion mandates that [the plaintiff] be at least
afforded an opportunity to amend her complaint to comply with section 2-622 before her action
is dismissed with prejudice.’” Id.; see also Chapman v. Chandra, Case No. 06-cv-651-MJR,
2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).
In the instant case, Plaintiff has failed to file the necessary affidavits or reports.
Therefore, the claim in Count 2 shall be dismissed. However, the dismissal shall be without
prejudice at this time, and Plaintiff shall be allowed 35 days to file the required affidavits, if he
desires to seek reinstatement of this claim. The certificates of merit must also be filed, in
accordance with the applicable section of §5/2-622(a). Should Plaintiff fail to timely file the
required affidavits/certificates, the dismissal of Count 2 may become a dismissal with prejudice.
See Fed. R. Civ. P. 41(b).
Finally, Plaintiff has named Wexford Health Sources as a defendant in this action, but
Wexford is not mentioned once in Plaintiff’s statement of claim.

Plaintiffs, even those

proceeding pro se, for whom the Court is required to liberally construe their complaints, see
Haines v. Kerner, 404 U.S. 519, 520–21 (1972), are required to associate specific defendants

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with specific claims so these defendants are put on notice of the claims brought against them and
so they can properly answer the complaint. See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th
Cir.2003) (a “short and plain” statement of the claim suffices under Federal Rule of Civil
Procedure 8 if it notifies the defendant of the principal events upon which the claims are based);
Brokaw v. Mercer County, 235 F.3d 1000, 1024 (7th Cir.2000) (“notice pleading requires the
plaintiff to allege just enough to put the defendant on notice of facts providing a right to
recovery”). Plaintiff has not ascribed to Wexford any of the conduct that he complains about.
Plaintiff does allege that Wexford employed the other Defendants and is responsible for
overseeing their work. (Doc. 1, p. 5). But this is a respondeat superior theory of liability—
Plaintiff is alleging that Wexford is responsible for Blake and David’s action because they
worked for Wexford. There is no respondeat superior liability under § 1983. Shields v. Illinois
Department of Corrections, 746 F.3d 782, 795-96 (7th Cir. 2014); Iskander v. Village of Forest
Park, 690 F.2d 126, 128 (1982). Any potential claims against Wexford on the theory that they
employed the defendants is foreclosed by the relevant case law; Wexford will be dismissed from
this action without prejudice.
Pending Motions
Plaintiff’s Motion for Appointment of Counsel is referred to a United States Magistrate
Judge for disposition. (Doc. 3).
Disposition
IT IS HEREBY ORDERED that Count 1 survives threshold review against David and
Blake. Wexford Health Sources is DISMISSED without prejudice.
IT IS FURTHER ORDERED that if Plaintiff wishes to move the Court to reinstate the
medical malpractice/negligence claim(s) in Count 2 against Defendants Blake and David,

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Plaintiff shall file the required affidavit(s) pursuant to 735 Ill. Comp. Stat. §5/2-622, within 35
days of the date of this order (on or before August 31, 2017). Further, Plaintiff shall timely file
the required written report(s)/certificate(s) of merit from a qualified health professional, in
compliance with §5/2-622. Should Plaintiff fail to timely file the required affidavits or reports,
the dismissal of Count 2 may become a dismissal with prejudice.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Blake and
David: (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.
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).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is REFERRED to a United States Magistrate Judge 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
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.

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DATED: July 26, 2017
s/J. Phil Gilbert
U.S. District Judge

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