Walton v. Scott et al

Filing 6

MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. COUNTS 2 and 5 are DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Defendants BROWN and WEXFORD HEALTH SOURCE, INC., are DISMISS ED from this action without prejudice. IT IS FURTHER ORDERED that if Plaintiff wishes to move the Court to reinstate the medical negligence claims in COUNT 2 and/or COUNT 5 against Defendants SCOTT and WEXFORD, respectively, 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 September 12, 2017). With reference to COUNTS 1, 3, and 4, the Clerk of Court shall prepare for Defendants SCOTT, RECTOR, PIERCE, and CHAPMAN: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). ( Action due by 9/12/2017.) Signed by Judge Staci M. Yandle on 8/8/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT WALTON, # B-09559,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL D. SCOTT,
)
ANGEL RECTOR,
)
LT. PIERCE,
)
T. CHAPMAN,
)
CHRISTINE BROWN,
)
and WEXFORD HEALTH SOURCE, INC., )
)
Defendants.
)

Case No. 17-cv-664-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff, currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”),
filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants
have been deliberately indifferent to his serious medical condition. The Complaint is now before
the Court for a preliminary review pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
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 “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
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1025, 1026-27 (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. Conversely, a complaint is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Although the Court is obligated to accept factual allegations as true, see Smith v. Peters,
631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible
that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract recitations of
the elements of a cause of action or conclusory legal statements.” Id. At the same time,
however, the factual allegations of a pro se complaint are to be liberally construed. See Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive
threshold review under § 1915A.
The Complaint
Plaintiff was diagnosed over 13 years ago with an inguinal hernia in the lower right
region of his abdominal cavity. (Doc. 1, p. 4).

This condition was well-documented in

Plaintiff’s medical records at Danville Correctional Center, where he was housed before his
transfer to Pinckneyville. The medical-provider defendants, who are employed by Wexford

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Health Source, Inc. (“Wexford”), have chosen to take a “bare minimal treatment” approach to
Plaintiff’s condition, even though Plaintiff has frequent episodes where his hernia “pops out” and
causes agonizing pain. (Doc. 1, p. 4).
On April 19, May 11, May 16, and July 6, 2016, Plaintiff visited the Health Care Unit
seeking treatment for his painful hernia and saw Dr. Scott. (Doc. 1, pp. 5-6). Plaintiff appears to
be alleging that on each of these occasions, his intestine had protruded out of his abdominal
cavity and he required medical assistance to push the intestine back into place. (Doc. 1, p. 6).
This process was very painful. On each of the above dates, Dr. Scott refused to authorize or
recommend repair of the hernia. Instead, Scott prescribed a hernia belt for Plaintiff to wear.
Based on these facts, Plaintiff asserts a deliberate indifference claim against Scott, as well as a
state law claim for negligence. (Doc. 1, p. 6).
On May 13, 2016, Plaintiff sought treatment for the hernia pain at Nurse Sick Call from
Rector (nurse practitioner). However, Rector refused to see him. (Doc. 1, p. 7).
On May 29, 2016, Officers Pierce and Chapman confiscated Plaintiff’s medicallyprescribed hernia belt and refused to allow Plaintiff to wear it while he was in segregation. (Doc.
1, p. 7).
Plaintiff asserts a state law negligence claim against Wexford, based on his allegations
that Wexford employees Scott and Rector violated his “constitutional and statutory rights” to
adequate medical treatment. (Doc. 1, p. 8). He argues that Wexford should be liable because
“its employees acted in its name and authority,” and he “would not have suffered the injuries
stated herein by Defendants Scott and Rector except through their employ with Defendant
Wexford.” (Doc. 1, p. 8). He further claims that Wexford failed to “properly train, manage, and
monitor the actions of its employees.” (Doc. 1, p. 9).

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Plaintiff seeks declaratory relief as well as compensatory and punitive damages. (Doc. 1,
p. 10).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following 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
designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Eighth Amendment claim against Dr. Scott, for deliberate indifference
to Plaintiff’s painful hernia condition between April 19 and July 6, 2016;
Count 2: State law negligence claim against Dr. Scott, for prescribing a hernia
belt for Plaintiff’s painful hernia condition and refusing to provide other treatment
between April 19 and July 6, 2016;
Count 3: Eighth Amendment claim against Rector, for deliberate indifference to
Plaintiff’s painful hernia condition when she refused to see him on May 13, 2016;
Count 4: Eighth Amendment deliberate indifference claim against Pierce and
Chapman, for confiscating Plaintiff’s prescribed hernia belt on May 29, 2016,
while Plaintiff was in segregation;
Count 5: State law negligence claim against Wexford Health Source, Inc., for
employing Scott and Rector to provide medical care for Plaintiff’s painful hernia
condition and failing to properly train, manage, and monitor their actions.
Counts 1, 3, and 4 shall proceed for further review in this action. However, Counts 2 and
5 fail to state a claim upon which relief may be granted and shall be dismissed without prejudice.
Count 1 – Deliberate Indifference – Dr. Scott
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

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defendant was deliberately indifferent to a risk of serious harm from that condition.

An

objectively serious condition includes an ailment that significantly affects an individual’s daily
activities or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997). “Deliberate indifference is proven by demonstrating that a prison official
knows of a substantial risk of harm to an inmate and either acts or fails to act in disregard of that
risk. 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); Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015).
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). However, an Eighth
Amendment claim may be stated where a prison doctor persists in a course of treatment known
to be ineffective, fails to order further testing or refuses to refer the inmate to a specialist.
Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (doctor continued ineffective treatment, and
refused to order endoscopy or specialist referral over a two-year period during which plaintiff
suffered from ulcer); Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir. 1990) (inmate may
prevail if he can prove that defendant “deliberately gave him a certain kind of treatment knowing
that it was ineffective” (citing Estelle v. Gamble, 429 U.S. 97, 104 n.10 (1976)). Further, 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).
Here, Plaintiff describes having suffered from his inguinal hernia for over 13 years. He

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notes that for several months in 2016, he had recurring episodes where his intestine would “pop
out” from his abdominal cavity, causing “agonizing” pain and requiring medical assistance to
push the intestine back into place. (Doc. 1, p. 4). The Complaint thus satisfies the objective
component of an Eighth Amendment claim. The remaining question is whether Plaintiff’s prison
medical providers acted or failed to act with deliberate indifference to a known risk of serious
harm.
Plaintiff met with Dr. Scott on 4 occasions in 2016 to seek treatment for his hernia. Scott
provided some treatment, which apparently included pushing Plaintiff’s protruding intestine back
into his abdominal cavity. Scott also prescribed Plaintiff a hernia belt at some point prior to May
29, 2016. However, Plaintiff complains that Scott should have authorized (presumably surgical)
repair of the hernia because of the frequency of Plaintiff’s need for his intestine to be pushed
back into place and the pain associated with those incidents.
At this early stage of the litigation, the Court cannot determine whether Scott’s treatment
of Plaintiff’s condition amounted to unconstitutional deliberate indifference, or whether it was
medically appropriate or constituted malpractice or negligence (which would not violate the
Constitution). Scott did provide Plaintiff with some medical treatment, including the hernia belt.
As previously noted, a prisoner cannot dictate his own care, Forbes v. Edgar, 112 F.3d 262, 267
(7th Cir. 1997), and a difference of opinion regarding what type of treatment is necessary will
not support a claim for deliberate indifference. 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). However, “a plaintiff’s
receipt of some medical care does not automatically defeat a claim of deliberate indifference if a
fact finder could infer the treatment was ‘so blatantly inappropriate as to evidence intentional

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mistreatment likely to seriously aggravate’ a medical condition.” Edwards v. Snyder, 478 F.3d
827, 832 (7th Cir. 2007).
Further factual development will be necessary in order to determine whether Scott’s
response to Plaintiff’s medical condition rose to the level of unconstitutional deliberate
indifference. Accordingly, Count 1 shall proceed for further review.
Dismissal of Count 2 – Negligence – Dr. Scott
Plaintiff’s state law negligence claim against Dr. Scott is based on the same factual
allegations that support the constitutional claim in Count 1. 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)). Plaintiff’s allegations meet this standard.
That said, 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

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the complaint); or 3) that the plaintiff has made a request for records but the respondent has not
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). 1
A separate affidavit and report shall be filed as to each defendant. See 735 ILL. COMP. STAT.
§5/2-622(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). Whether such
dismissal should be with or without prejudice is up to the sound discretion of the court. Sherrod,
223 F.3d at 614. Significantly, “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 affidavit or report with respect
to his allegations of medical negligence against Dr. Scott. Therefore, the claim in Count 2 shall
be dismissed. However, the dismissal will be without prejudice and Plaintiff will be allowed 60
days to file the required affidavit, if he desires to seek reinstatement of this claim.

The

certificate 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 affidavit or certificate of merit, the dismissal of
Count 2 may become a dismissal with prejudice. See Fed. R. Civ. P. 41(b).
1

The August 25, 2005, amendments to a prior version of this statute were held to be unconstitutional in
2010. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010) (Holding P.A. 94-677 to be
unconstitutional in its entirety). After Lebron, the previous version of the statute continued in effect. See
Hahn v. Walsh, 686 F. Supp. 2d 829, 832 n.1 (C.D. Ill. 2010). The Illinois legislature re-enacted and
amended 735 ILL. COMP. STAT. §5/2-622 effective January 18, 2013 (P.A. 97-1145), to remove any
question as to the validity of this section. See notes on Validity of 735 ILL. COMP. STAT. §5/2-622 (West
2013).

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Count 3 – Deliberate Indifference – Rector
Plaintiff’s allegations against Nurse Practitioner Rector are brief. He claims that on one
occasion (May 13, 2016), he sought treatment for his “symptoms of pain and discomfort” related
to his hernia. However, Rector refused to see him.
As noted in the discussion under Count 1, a delay in treatment which unnecessarily
prolongs an inmate’s pain may amount to deliberate indifference. Gomez v. Randle, 680 F.3d
859, 865 (7th Cir. 2012). An outright refusal to assess or provide treatment for a serious, painful
medical condition – such as Plaintiff alleges here – would also support a constitutional claim.
Accordingly, the deliberate indifference claim against Rector survives review under § 1915A.
Count 3 shall proceed for further consideration.
Count 4 – Deliberate Indifference – Pierce and Chapman
Officers Pierce and Chapman are not alleged to be medical providers.

They are

correctional officers who interacted with Plaintiff on May 29, 2016 when Plaintiff was placed in
segregation. At the time, Plaintiff had the hernia belt which had been prescribed for him by Dr.
Scott. Despite the doctor’s prescription for this medical device to hold Plaintiff’s intestine in
place, Pierce and Chapman allegedly confiscated the belt and refused to allow Plaintiff to wear it
while he was in segregation. Presumably, this placed Plaintiff at greater risk of having another
painful episode where his intestine would “pop out” through his abdominal wall.
These allegations support an Eighth Amendment deliberate indifference claim against
Pierce and Chapman if they knew that Plaintiff faced a risk of harm to his health without the
hernia belt, yet still prevented Plaintiff from wearing it. Count 4 shall therefore proceed for
further review.
Dismissal of Count 5 – Negligence – Wexford

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Because Plaintiff has pled his claim against Wexford as a state law negligence claim for
improper medical treatment rendered by Wexford employees Scott and Rector, the claim in
Count 5 cannot go forward unless Plaintiff complies with the affidavit and certificate of merit
requirements described above under Count 2 (the medical negligence claim against Dr. Scott).
Because Plaintiff has not provided either an affidavit regarding consultation with a qualified
health professional, or a certificate of merit from such a professional (See 735 ILL. COMP. STAT.
§5/2-622(a)) with reference to his negligence claim against Wexford, Count 5 shall be dismissed
without prejudice.
As with the claim in Count 2, the dismissal of Count 5 shall be without prejudice at this
time, and Plaintiff will be allowed 60 days to file the required affidavit(s), if he desires to seek
reinstatement of this claim. The certificate(s) 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

affidavit(s)/certificate(s), the dismissal of Count 5 may become a dismissal with prejudice. See
Fed. R. Civ. P. 41(b).
The Court notes that the Complaint does not include a claim against Wexford for
deliberate indifference to Plaintiff’s medical condition. In the event that Plaintiff may seek to
amend his Complaint to include such a claim, he should note that in the context of a civil rights
action, a corporation such as Wexford cannot be held liable merely because it employs (or fails
to train/supervise) a prison doctor or nurse who was allegedly deliberately indifferent to an
inmate’s medical condition. Rather, a corporation can be held liable for deliberate indifference
only if it had a policy or practice that caused the alleged violation of a constitutional right.
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

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though it were a municipal entity in a § 1983 action). The current Complaint contains no such
allegation.
Dismissal of Defendant Brown
Plaintiff includes Christine Brown (Health Care Administrator) in his list of Defendants
(Doc. 1, p. 3), however, he does not name her in the case caption and does not mention her at all
in the body of the Complaint. Plaintiffs are required to associate specific defendants with
specific claims, so that defendants are put on notice of the claims brought against them and so
they can properly answer the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007); FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a defendant in his statement
of the claim, the defendant cannot be said to be adequately put on notice of which claims in the
complaint, if any, are directed against her. Furthermore, merely invoking the name of a potential
defendant is not sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d
331, 334 (7th Cir. 1998). And finally, while Brown may have acted in a supervisory position,
liability cannot be imposed on her based on that status alone, because the doctrine of respondeat
superior (supervisory liability) is not applicable to § 1983 actions. Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001) (citations omitted). Accordingly, Brown will be dismissed from
this action without prejudice.
Disposition
COUNTS 2 and 5 are DISMISSED without prejudice for failure to state a claim upon
which relief may be granted. Defendants BROWN and WEXFORD HEALTH SOURCE,
INC., are DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that if Plaintiff wishes to move the Court to reinstate the
medical negligence claims in COUNT 2 and/or COUNT 5 against Defendants SCOTT and

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WEXFORD, respectively, 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 September 12, 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 and/or COUNT 5 may become a
dismissal with prejudice.
With reference to COUNTS 1, 3, and 4, the Clerk of Court shall prepare for Defendants
SCOTT, RECTOR, PIERCE, and CHAPMAN: (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).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Reona J. Daly for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge Daly
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, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
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 8, 2017

s/ Staci M. Yandle
United States District Judge

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