Overturf v. Wexford Health Sources et al

Filing 17

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 9/21/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FLOYD OVERTURF,
#B87081,
Plaintiff,

Case No. 17−cv–0762−DRH

vs.
WEXFORD HEALTH SOURCES,
JANE DOE 1-2, and
JOHN DOE 1-3,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Floyd Overturf, an inmate in Shawnee Correctional Center, brings
this action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional
rights that allegedly occurred while he was incarcerated at Big Muddy River
Correctional Center (“Big Muddy”).

In his Complaint, Plaintiff claims the

defendants have been deliberately indifferent to his serious medical issues in
violation of the Eighth Amendment. (Doc. 1). 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
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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, 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. 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 allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: Plaintiff
has a prescription for Betamethasone ointment, which is a psoriasis medication.
(Doc. 1, p. 5). The prescription for 135 GMs per month was prescribed by a Dr.
Dennis and spanned October 6, 2016 to February 6, 2017. Id. On October 11,
2016, Plaintiff received 90 GMs. Id. On November 10, 2016, he received 45 GMs.
Id. Plaintiff notified the nurse during the evening medication line that he only

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received a small portion of his prescription. Id. She told him to turn his refill
sticker in four to five days before it ran out, and the pharmacy would refill it. Id.
On about November 15, 2016, Plaintiff turned his refill sticker in to the 11:00 pm
nurse who collects refill stickers.

Id.

Plaintiff should have received more

Betamethasone ointment on November 20, 2016. Id.

From November 20, 2016

through November 29, 2016, Jane Doe #1, a Wexford Pharmacy Tech, repeatedly
delayed and denied to provide Plaintiff with prescribed medications, eventually
causing him pain and injury due to his psoriasis. (Doc. 1, pp. 8-9). On November
22, 2016, Plaintiff sent a request to Health Care notifying them that his
medication was late. (Doc. 1, p. 5). He did not receive a response. Id.
On November 25, 2016, Plaintiff sent another request slip to Health Care
“notifying them that his prescription was late and that his skin was getting bad.”
Id. He received no response. Id. “On Nov. 22, 2016 and November 25, 2016,
Jane Doe #2 Wexford Health Care Coordinator . . . deliberately ignored
[Plaintiff’s] institutional request slips sent to her department alerting Wexford
Health Care staff of the delay of [his] prescribed medication, and then also
informing them of [his] discomfort from extreme itching and pain, and the risk to
[his] health from open sores.” (Doc. 1, p. 8).
On November 28, 2016 at 9:00am, Plaintiff spoke to his housing unit wing
counselor, Ms. Allen. (Doc. 1, p. 5). He informed her of his medication issue. Id.
He also told her that his “skin itched really bad.” Id. “The plaqueing of [his] skin
spots was really thick and start[ed] to crack and bleed.” Id. After showing her

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some of his inflamed skin spots, she made a note of his problem and said she
would do what she could to help him address it. Id. On November 29, 2016,
Plaintiff “was told to report to the A.M. nurse sick call line in [his] housing unit.”
(Doc. 1, pp. 5-6).

The nurse, John Doe #1, told him that Health Care had

received a call concerning his prescription refill. (Doc. 1, pp. 6, 8). The nurse
also told Plaintiff that his file indicated that his refill was due, that he had left a
note with the pharmacy informing them, and that the note he left in the pharmacy
would get him his medication. Id. Plaintiff did not receive treatment at that time,
even though his skin was “plaqueing,” inflamed, cracking, and had open sores,
and he informed John Doe #1 that it was “painful and itched badly.” Id.
On December 5, 2016, Plaintiff had not yet received his medication or any
other treatment, and his skin condition was “really bad.” (Doc. 1, p. 6). Plaintiff
“had over 40 skin spots that ranged in sizes from ½ in. to 8 in., they were painful
to the touch, cracking, and bleeding in many spots, leading to a real health and
sanitation concern about the possible risk of infection, and at 15 days without
treatment the itching was maddening.” Id. Plaintiff filed an emergency grievance
listing his concerns and inquiring about his medication. Id. Jane Doe #2, the
Wexford Health Care Coordinator, continued to delay and deny Plaintiff’s
prescribed medication and ignore Plaintiff’s request for medical treatment when
Plaintiff filed his emergency grievance.

(Doc. 1, p. 9).

After 48 hours, on

December 7, 2016, Plaintiff filed a non-emergency grievance with the same
information. (Doc. 1, p. 6). Plaintiff received a response to that on December 12,

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2016 indicating that it was a duplicate grievance and telling him to wait for a
response to his first grievance. Id. On December 15, 2016, Plaintiff saw P.A.
Gerst (John Doe #2) during a scheduled clinic. Id. Plaintiff told him about his
prescription issues, and Gerst responded by showing him that his prescription
was current. Id. Gerst brought this issue to the attention of the nurse, Jane Doe
#3, but she “failed to carry out medical orders.” (Doc. 1, pp. 6, 9). Gerst then
renewed Plaintiff’s medication for five months.

(Doc. 1, p. 6).

Gerst did not

provide Plaintiff with treatment despite the fact that Plaintiff’s “skin had obviously
open sores all over it” posing a risk of infection, and Plaintiff was “in obvious
discomfort and pain.” (Doc. 1, pp. 6, 9).
On December 16, 2016, Plaintiff sent a copy of his grievance issues to John
Howard in the mail. (Doc. 1, p. 6). He also sent an inmate request slip to the
director of the institution requesting to speak with an inspector from outside the
institution.

Id.

Plaintiff received no response.

Id.

On December 19, 2016,

Plaintiff declared a medical emergency because a “really bad” psoriasis skin sore,
covering a four-inch by six-inch area of his lower left shin, was causing him a lot
of pain. Id.

It was swollen, inflamed, and hot to the touch. Id. Plaintiff thought

it was infected. Id. After arguing with the nurse, John Doe #1, about whether an
infection constituted a medical emergency, and being threatened with a ticket,
Plaintiff was allowed to see Dr. Larson.

(Doc. 1, pp. 6, 9).

After examining

Plaintiff’s leg and other psoriasis affected areas, Larson told Plaintiff he had a
bacterial skin infection in his left leg. (Doc. 1, pp. 6-7). He prescribed Plaintiff an

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antibiotic for the infection, as well as five days’ worth of Benadryl, hydrocortisone
cream, and miconsole nitrate. (Doc. 1, p. 7). Larson also directed the nurses to
call the pharmacy supplier to remedy Plaintiff’s Betamethasone issue. Id.
On December 22, 2016, Plaintiff received his full prescription.

Id.

On

January 11, 2017, after not receiving a response to his December 5, 2016
emergency grievance, Plaintiff filed another grievance.

Id.

This grievance was

returned for being a duplicate of the December 5, 2016 grievance.
January 30, 2017, Plaintiff received his original grievance back.

Id.

Id.

On

It was

marked as not an emergency and signed by Chief Administrative Officer J.C.
Garnett. Id. The counselor marked it received on January 1, 2017 and signed on
January 30, 2017. Id. The response to the grievance read:
The offenders medical jacket was reviewed and the pharmacy was
consulted. The offender did not turn the sticker in to receive the
refill. The offender notified staff on 11-29-2016 per documentation.
The pharmacy was contacted and the technician stated she sent it
back as ‘too soon’ as she looked at the order as 45 Gms/mo. The
issue was corrected and the offender is now receiving 135 Gms/mo.
He last received the medication on 12-21-2016.
Id. On February 25, 2017, Plaintiff sent his original grievance to the grievance
officer. Id. Plaintiff was transferred to Shawnee Correctional Center on March 7,
2017 without receiving a response from the grievance officer. Id. On March 12,
2017, Plaintiff submitted his grievance to the Administrative Review Board
(“ARB”). Id. Plaintiff received a response from the ARB dated April 10, 2017,
stating they checked with Big Muddy’s grievance office but that the office claims to
have never received his grievance. Id.

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Plaintiff claims that “each defendant’s actions caused [him] to suffer
extended periods of pain and irritation due to their negligence and deliberate
indifference to [his] issues or [his] requests for relief.” (Doc. 1, p. 8). Plaintiff
requests monetary damages. (Doc. 1, p. 10).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 5 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 regarding their merit.
Count 1 –

From November 20, 2016 to November 29, 2016, Jane Doe #1
showed deliberate indifference to Plaintiff’s serious medical
need involving his psoriasis by failing to provide Plaintiff with
his prescribed medication in violation of the Eighth
Amendment.

Count 2 –

From November 22, 2016 through December 5, 2016, Jane
Doe #2 showed deliberate indifference to Plaintiff’s serious
medical need involving his psoriasis by deliberately ignoring
Plaintiff’s request slips and emergency grievance regarding his
prescribed medications, his discomfort, and the risk of harm
he faced from open sores, in violation of the Eighth
Amendment.

Count 3 –

On November 29, 2016 and December 19, 2016, John Doe #1
showed deliberate indifference to Plaintiff’s serious medical
need involving his psoriasis by failing to provide Plaintiff with
medical treatment and delaying and denying him access to
appropriate medical treatment, in violation of the Eighth
Amendment.

Count 4 –

On December 15, 2016, P.A. Gerst (John Doe #2) showed
deliberate indifference to Plaintiff’s serious medical need
involving his psoriasis by failing to provide Plaintiff with
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medical treatment in violation of the Eighth Amendment.
Count 5 –

On December 15, 2016, Jane Doe #3 showed deliberate
indifference to Plaintiff’s serious medical need involving his
psoriasis by failing to carry out medical orders in violation of
the Eighth Amendment.

As discussed in more detail below, Counts 1 through 4 will be allowed to
proceed past threshold. Any other intended claim that has not been recognized
by the Court is considered dismissed without prejudice as inadequately pleaded
under the Twombly pleading standard.
A prisoner raising a claim against a prison official for deliberate
indifference

to

the

prisoner’s

serious

medical

needs

must

satisfy

two

requirements. The first requirement compels the prisoner to satisfy an objective
standard: “[T]he deprivation alleged must be, objectively, ‘sufficiently serious[.]’”
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S.
294, 298 (1991)). The Seventh Circuit considers the following to be indications of
a serious medical need: (1) where failure to treat the condition could “result in
further significant injury or the unnecessary and wanton infliction of pain;” (2)
“[e]xistence of an injury that a reasonable doctor or patient would find important
and worthy of comment or treatment;” (3) “presence of a medical condition that
significantly affects an individual’s daily activities;” or (4) “the existence of chronic
and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The second requirement involves a subjective standard: “[A] prison official must
have a ‘sufficiently culpable state of mind,’” one that amounts to “‘deliberate
indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 297).
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Liability

under

the

deliberate-indifference

standard

requires

more

than

negligence, gross negligence or even recklessness; rather, it is satisfied only by
conduct that approaches intentional wrongdoing. See Farmer, 511 U.S. at 835.
Plaintiff has described a condition, psoriasis, that as described meets at
least a few of the criteria outlined in Gutierrez. Plaintiff’s condition significantly
worsened and caused him pain when it went untreated. It would also likely be
considered noteworthy by a reasonable doctor or patient. Plaintiff’s allegations
therefore suffice to meet the objective showing that Plaintiff had a serious medical
condition. Plaintiff also alleges that John Doe #1, Gerst (John Doe #2), and Jane
Does #1 and #2 deliberately deprived him of his medication, deliberately failed to
treat him, or deliberately neglected to ensure he received the appropriate
treatment after having been alerted to his issues. Because of this, his suffering
continued, and his leg ultimately became infected. Thus, at this early stage, Count
1 against Jane Doe #1, Count 2 against Jane Doe #2, Count 3 against John Doe
#1, and Count 4 against P.A. Gerst (John Doe #2) cannot be dismissed and will
proceed past threshold.
Plaintiff fails to provide any sort of factual basis to support a finding that
Jane Doe #3 showed deliberate indifference to his medical needs. Instead, he
merely states that Gerst brought the fact that Plaintiff’s prescription was current,
and that he had last received 45 GMs on November 10, 2016, to her attention.
Per his allegations, Plaintiff was under Gerst’s care at the time, not necessarily
Jane Doe #3’s. Further, Plaintiff fails to allege any actual “medical orders” Jane

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Doe #3 failed to carry out. Without more, Plaintiff has failed to state a claim upon
which relief can be granted against Jane Doe #3, so Count 5 will be dismissed
without prejudice.
Wexford Health Sources
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 though it were a municipal entity in a § 1983 action).
Plaintiff has not alleged that any of the individual defendants either acted or failed
to act as a result of an official policy espoused by Wexford.
Plaintiff has also failed to include specific allegations against Wexford in the
body of his Complaint, despite his having listed it among the defendants.
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 claim, the defendant cannot be said to be adequately
put on notice of which claims in the complaint, if any, are directed against him.
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 in the case of those defendants in supervisory positions, the

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doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted).
For these reasons, Wexford shall be dismissed from this action without
prejudice.
Identification of Unknown Defendants
Plaintiff shall be allowed to proceed with Counts 1, 2, and 3 against Jane
Does #1 and #2 and John Doe #1. However, these defendants must be identified
with particularity before service of the Complaint can be made on them. 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 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). In
this case, the Warden of Big Muddy River Correctional Center will be added as a
defendant, in his or her official capacity only, and shall be responsible for
responding to discovery (formal or otherwise) aimed at identifying these Doe
defendants. Guidelines for discovery will be set by the United States Magistrate
Judge. Once the names of these defendants are discovered, 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.
Further, though Plaintiff refers to Physician’s Assistant Gerst as John Doe
#2 throughout his Complaint and in the case caption and list of defendants, he

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also identifies him with particularity by including his name next to the Doe
designation. Because the Court finds that Gerst has been sufficiently identified,
and to facilitate the orderly progress of this action going forward with respect to
the other Doe defendants, the Clerk will be directed to rename the Doe defendants
in CM-ECF as follows: Jane Doe #1 (Wexford Pharmacy Technician); Jane Doe
#2 (Wexford Health Care Coordinator); Jane Doe #3 (Wexford Nurse); John Doe
#1 (Wexford Nurse); and P.A. Gerst. See Fed. R. Civ. P. 21 (“the court may at any
time, on just terms, add or drop a party”).
Pending Motions
Plaintiff has filed a Motion to Appoint Counsel (Doc. 3) and an Amended
Motion for Recruitment of Counsel (Doc. 14), which are hereby REFERRED to a
United States Magistrate Judge for a decision.
Disposition
The CLERK is DIRECTED to replace the JANE DOE (1-2) and JOHN DOE (13) defendants in CM-ECF with the following separate defendants:

JANE DOE #1

(Wexford Pharmacy Technician); JANE DOE #2 (Wexford Health Care Coordinator);
JANE DOE #3 (Wexford Nurse); JOHN DOE #1 (Wexford Nurse); and P.A. GERST.

IT IS HEREBY ORDERED that COUNT 1 will PROCEED against JANE
DOE #1.
IT IS FURTHER ORDERED that COUNT 2 will PROCEED against JANE
DOE #2.
IT IS FURTHER ORDERED that COUNT 3 will PROCEED against JOHN

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DOE #1.
IT IS FURTHER ORDERED that COUNT 4 will PROCEED against P.A.
GERST.
IT IS FURTHER ORDERED that COUNT 5 is DISMISSED without
prejudice.
IT IS FURTHER ORDERED that JANE DOE #3 and WEXFORD HEALTH
SOURCES are DISMISSED without prejudice from this action for failure to state
a claim upon which relief may be granted.
The CLERK is DIRECTED to ADD the WARDEN OF BIG MUDDY RIVER
CORRECTIONAL CENTER (official capacity only) as a defendant to this lawsuit,
for the sole purpose of responding to discovery requests aimed at identifying the
remaining Doe defendants.
IT IS FURTHER ORDERED that as to COUNTS 1 through 4, the Clerk of
Court shall prepare for JANE DOE #1 (once identified), JANE DOE #2 (once
identified), JOHN DOE #1 (once identified), P.A. GERST, and WARDEN OF BIG
MUDDY RIVER CORRECTIONAL CENTER (official capacity only): (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 any 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
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formal service on that defendant, and the Court will require that defendant 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 Defendants Jane Doe #1, Jane Doe #2, and
John Doe #1 until such time as Plaintiff has identified them 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 names and service addresses for
these individuals.
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.

Further, this entire

matter shall be REFERRED to a United States Magistrate Judge for disposition,
pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to

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such a referral.

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, despite the fact 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.

Judge Herndon
2017.09.21
17:18:49 -05'00'
United States District Judge

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