Thurston v. Wexford Health Source et al
IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint in this case on or before November 3, 2017. Should Plaintiff fail to file his First Amended Complaint within the allotted time, dismissal of this action will become with prejudice. (Amended Pleadings due by 11/3/2017). Signed by Chief Judge Michael J. Reagan on 10/6/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRELL THURSTON, Sr.,
WEXFORD HEALTH SOURCE,
VIPIN SHAH, and
ILLINOIS DEPT. OF CORRECTIONS,
) Case No. 17−cv–00832−MJR
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Darrell Thurston, an inmate who is currently incarcerated at Stateville
Correctional Center, brings this civil rights action pursuant to 42 U.S.C. § 1983 for violations of
his constitutional rights at Pinckneyville Correctional Center (“Pinckneyville”). (Doc. 1). In the
Complaint, Plaintiff alleges that he sustained permanent kidney damage after taking an excessive
amount of blood pressure medication at Pinckneyville. (Doc. 1, pp. 4-5). In connection with this
claim, he seeks monetary relief against Wexford Health Source (“Wexford”), Illinois Department
of Corrections employees (“IDOC employees”), and Vipin Shah (doctor). (Doc. 1, p. 6).
Plaintiff originally filed this action in the United States District Court for the Northern
District of Illinois. See Thurston v. Wexford Health Source, et al., No. 17-cv-04859 (N.D. Ill.
filed June 28, 2017). On August 3, 2017, the Northern District transferred the case to this
District. (Doc. 8). Plaintiff now requests transfer of the case back to the Northern District.
(Doc. 12). For the reasons set forth herein, his motion shall be denied.
The Complaint is now subject to preliminary review under 28 U.S.C. § 1915A, which
(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
(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
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).
The Complaint does not survive screening under this
standard and shall therefore be dismissed.
Plaintiff allegedly suffers from hypertension. (Doc. 1, p. 4). During his incarceration at
Pinckneyville, he was prescribed a cocktail of blood pressure medications. Id. For eighteen
months, he took up to six different medications at a time. Id. Instead of decreasing his blood
pressure, the medications elevated it to sustained levels of at least 215/115. Id.
Plaintiff’s kidneys eventually “shut down.” (Doc. 1, p. 4). Plaintiff claims that he was
neglected and had to beg a nurse practitioner for treatment. Id. She agreed that Plaintiff was
about “to check out” and sought permission from the prison warden to rush Plaintiff to Marion
General Hospital for emergency treatment. Id. The hospital’s dialysis team informed Plaintiff
that his blood pressure medication had “destroyed” his kidneys. Id.
As a result, his life
expectancy was reduced to seven years. Id.
Plaintiff has since been informed by prison medical providers at Graham Correctional
Center (“Graham”) and Stateville Correctional Center (“Stateville”) that his life expectancy is
now less than six years. (Doc. 1, p. 5). Plaintiff’s doctors attribute his current prognosis to the
excessive amounts of Clonidine he was prescribed at Pinckneyville. Id. Plaintiff attributes his
condition to neglect, malpractice, the state budget crisis, and decreased expenditures on prison
medical care. Id. He seeks monetary relief for “malpractice” against Wexford, unknown IDOC
employees, and Doctor Shah. (Doc. 1, p. 6).
Plaintiff asserts a single claim of negligence or malpractice against Wexford, IDOC
employees, and Doctor Shah. (Doc. 1). He cannot proceed with a negligence claim under
§ 1983. A defendant can never be held liable under § 1983 for negligence, or even gross
negligence. Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
Section 1983 creates a cause of action against individuals who cause or participate in a
constitutional deprivation while acting under color of state law. Sheik-Abdi v. McClellan, 37
F.3d 1240, 1248 (7th Cir. 1994) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.
1983)); see also Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005). To be held
individually liable, a defendant must be “personally responsible for the deprivation of a
constitutional right.” Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001). The doctrine
of respondeat superior does not apply in this context. Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001).
Plaintiff’s claim arises under the Eighth Amendment, which proscribes the cruel and
unusual punishment of prisoners. U.S. CONST., amend. VIII. Deliberate indifference to serious
medical needs of prisoners constitutes cruel and unusual punishment. Berry v. Peterman, 604
F.3d 435 (7th Cir. 2010); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Erickson v. Pardus, 551
U.S. 89, 94 (2006) (per curiam). In this case, the Court is unable to discern whether any of the
defendants exhibited deliberate indifference to Plaintiff medical condition.
Plaintiff failed to mention the names of a single defendant in his statement of claim. He
names Wexford, IDOC employees, and Doctor Shah as defendants in his case caption, but
nowhere in the body of his Complaint. The Seventh Circuit has long held that “[a] plaintiff
cannot state a claim against a defendant by including the defendant’s name in the caption.” See
Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).
To comport with basic pleading requirements set forth in the Federal Rules of Civil
Procedure, a plaintiff must include “a short and plain statement of the claim showing that the
pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Plaintiff is not required to include “detailed
factual allegations” against each defendant. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citing
Twombly, 550 U.S. at 555). He is only required to set forth sufficient allegations to suggest that
each defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556.
Plaintiff ignored instructions to this effect in the form he used to prepare the Complaint.
(Doc. 1, p. 4). The form directs plaintiffs to “[s]tate here as briefly as possible the facts of your
case. Describe how each defendant is involved, including names, dates, and places. . . .” Id.
This Court’s standard civil rights complaint form includes similar instructions: “State here, as
briefly as possible, when, where, how, and by whom you feel your constitutional rights were
violated. . . .” Plaintiff disregarded these instructions. He did not indicate how each of the
named defendants deprived him of adequate medical care for his hypertension or kidney
malfunction, in violation of the Eighth Amendment. (Doc. 1, pp. 4-5).
Plaintiff’s Complaint fails to state a claim upon which relief may be granted, and it shall
be dismissed. However, the dismissal shall be without prejudice to Plaintiff filing an amended
complaint that describes what each of the defendants did to violate his Eighth Amendment rights.
The deadline and instructions for amending are set forth in the below disposition.
Motion for Attorney Representation (Doc. 4)
Plaintiff’s Motion for Attorney Representation is DENIED without prejudice. In his
motion, Plaintiff listed the names of three attorneys he attempted to contact in connection with
this matter and confirmed that he filed an application to proceed as a poor person in this case.
(Doc. 4, p. 1). Although there is no constitutional or statutory right to counsel in federal civil
cases, Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010), a district court may exercise its
discretion and recruit counsel for an indigent litigant. See 28 U.S.C. § 1915(e)(1); Ray v.
Wexford Health Sources, Inc., 706 F.3d 864, 866–67 (7th Cir. 2013). The Court must first
consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his
own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647,
654 (7th Cir. 2007)). If he has done so, the Court must also examine “whether the difficulty of
the case—factually and legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655).
Neither requirement is satisfied. First, Plaintiff did not demonstrate that his efforts to
secure counsel were unsuccessful. (Doc. 4, p. 1). He merely listed the names of three attorneys,
without stating that he contacted any of them and without describing their response to his request
for legal representation in this matter. Id. Second, he did not address whether this case exceeds
his abilities as a layperson to present it. Id. The pleadings filed to date are well-drafted and
coherent. Plaintiff describes no impediment to pro se litigation of this matter in his motion, such
as educational, language, or mental health barriers. Id. Although his medical issues could
become an impediment, Plaintiff did not indicate that they are in his motion. Id. In the absence
of this assertion, the Court discerns no basis for granting the motion at this time. Plaintiff’s
Motion for Attorney Representation is denied without prejudice. However, he is invited to
renew the motion as this case proceeds, if he believes it is necessary.
Motion to Transfer Venue (Doc. 12)
Plaintiff’s Motion to Transfer Venue is DENIED. In the motion, Plaintiff explains that
he would like the case transferred back to the Northern District because he is currently housed
there and would like to expand his claims to include violations of his constitutional rights there.
(Doc. 12). Plaintiff offers few specifics about the nature of his anticipated claims or the names
of any new defendants. Id. He has not file a proposed amended complaint. Id. This Court is
aware of no new information which suggests that venue is improper in this District.
The United States District Court for the Northern District of Illinois originally transferred
the case to this District based on the allegations in the Complaint. In the transfer order, the
Northern District “discern[ed] no basis for venue” there. (Doc. 6, p. 1). The Court pointed out
that all of the events giving rise to this action occurred at Pinckneyville, a prison located in the
federal judicial district for Southern District of Illinois. Id. Plaintiff identified the defendants as
being employed at Pinckneyville. Id. The complained-of medical care occurred exclusively at
Pinckneyville. Id. This Court reviewed the Complaint and also finds that the case was properly
transferred to this District.
Plaintiff is WARNED that any new, unrelated claims that he includes in the amended
complaint filed in this case are subject to severance into one or more new cases, the assessment
of an additional filing fee for each new case, and transfer to the proper venue.
IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted. This includes dismissal of the Illinois
medical negligence claim and Eighth Amendment deliberate indifference to medical needs claim
against Defendants Wexford Health Source, Illinois Department of Corrections employees, and
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a “First
Amended Complaint” in this case on or before November 3, 2017. Should Plaintiff fail to file
his First Amended Complaint within the allotted time, dismissal of this action will become with
prejudice. FED. R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir.
1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). Further, a “strike” will be assessed.
See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for use in this District for such actions. He should be careful to label the
pleading, “First Amended Complaint,” and he must list this case number (Case No. 17-00832MJR) on the first page. To enable Plaintiff to comply with this Order, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
In the amended complaint, Plaintiff must, at a minimum, describe the actions taken by
each defendant that resulted in the deprivation of his federal constitutional rights. He should
attempt to include the facts of his case in chronological order, inserting each defendant’s name
where necessary to identify the actors. Plaintiff should refrain from filing unnecessary exhibits
or including any other unrelated claims in his amended complaint.
Claims found to be
unrelated will be further severed into new cases, new case numbers will be assigned, and
additional filing fees will be assessed.
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g).
An amended complaint supersedes and replaces the original Complaint, rendering the
original void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir.
2004). The Court will not accept piecemeal amendments to the original Complaint. Thus, the
First Amended Complaint must stand on its own, without reference to any previous pleading, and
Plaintiff must re-file any exhibits he wishes the Court to consider along with the First Amended
Complaint. Finally, the First Amended Complaint is subject to review pursuant to 28 U.S.C.
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: October 6, 2017
s/ MICHAEL J. REAGAN
Chief District Judge,
United States District Court
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