Christmas v. Wexford Health Sources, Inc. et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 11/27/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMOND CHRISTMAS,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
ROBERT SHEARING,
JOHN TROST,
ERIC JOHNSON,
RYAN SUTTERER,
CHRISTINE LOCHHEAD, and
GAIL WALLS,
Defendants.

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Case No. 17−cv–1006−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Demond Christmas, an inmate in Menard Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff requests
declaratory relief, a permanent injunction, and monetary 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.

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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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of this action are subject to
summary dismissal. The Court also considered Plaintiff’s Memorandum in Support of his
Compliant at Doc. 1-1.
The Complaint
Plaintiff alleges that prior to arriving at Menard in 2012, he was assaulted by an officer at
Cook County Jail, which resulted in severe facial damage, including a right orbital fracture.
(Doc. 1, p. 11). After the initial assault, Plaintiff was taken to John Stroger Hospital in Chicago
in July 2012, where a CAT scan was performed. Id. Although the CAT scan showed the broken
bones, Plaintiff’s face was still swollen, precluding surgery, and so the specialist ordered a
follow-up visit. Id.
Prior to receiving his follow-up visit at Stroger, Plaintiff was transferred to the Illinois
Department of Corrections (“IDOC”) and assigned to the Stateville Northern Reception Center,
where Wexford Health Sources is the designated health care provider. Id. Plaintiff informed

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Stateville officials about his facial fractures and requested care. Id. On November 14, 2012,
Plaintiff was transferred to Menard Correctional Center. Id. Amy Lang, who is not a defendant
here, performed a screening upon entry into Menard, but although she noted the fracture of the
right eye socket, she erroneously noted that Plaintiff denied any pain. Id. Plaintiff alleges he
was actually experiencing facial pain, severe headaches, dizziness, double vision, blurry vision,
and ringing in his ears. Id.
Plaintiff began requesting to see the optometrist, but despite writing a letter on December
14, 2012 and again on January 14, 2013, Plaintiff did not actually get to see Dr. Eric Johnson
until January 30, 2013. (Doc. 1, p. 12). Upon information and belief, Plaintiff believes that
Johnson was an employee of Eyecare Solutions, who was under contract with Wexford to
provide medical optometry services. Id. Johnson failed to examine Plaintiff, and when Plaintiff
told him that the Stroger specialist had recommended surgery, Johnson told Plaintiff that surgery
would not fix his problems and that Wexford would not approve surgery due to the expense. Id.
Johnson referred Plaintiff to the on-site medical director. Id. Plaintiff submitted a sick call slip 6
weeks later on March 15, 2013 when he still had not been seen; an unnamed nurse said she
would put him in to see the doctor and gave him some Tylenol. (Doc. 1, pp. 12-13).
On March 23, 2013, Plaintiff’s blurry vision caused him to misjudge the edge of his bunk
and fall off the top. (Doc. 1, p. 13). He hit his head on the floor. Id. Plaintiff saw Dr. Shearing
on March 25, 2013. Id. Shearing told Plaintiff that he did not need surgery and that surgery was
too costly. Id. Plaintiff told Shearing about his medical history and his current pain and
suffering. Id. Shearing prescribed 2 weeks of ibuprofen. Id. Plaintiff’s medical records show
that Shearing received Plaintiff’s records from Cook County Jail on April 26, 2013. (Doc. 1, p.
20).

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Plaintiff saw Shearing again on April 26, 2013. (Doc. 1, p. 14). Shearing again reiterated
that Plaintiff would not be receiving surgery, no matter how many grievances he filed. Id.
Shearing denied that any treatment, including pain medication, was necessary. Id. Plaintiff
alleges that Shearing falsified the April 26, 2013 medical record entry to cover up his deliberate
indifference. Id. Plaintiff wrote a grievances on March 25, 2013 regarding his medical care, to
which Gail Walls responded on June 11, 2013, stating “You have seen the eye doctor, medical
doctors, and nurses for sick call since being at Menard CC. The last time was on April 26, 2013
by Dr. Shearing. At that time he wrote you had received all treatment necessary for your issue
and no further follow-up was necessary. If you have further issues, please put in for sick call.”
Id. (Doc. 1, p. 47). Plaintiff wrote a grievance on Walls’ response on June 18, 2013. (Doc. 1, p.
15).
In addition to Plaintiff’s pain, he also experienced constant pus drainage from his right
eye. Id. Plaintiff continued to experience pain and suffering. Id. He learned sometime in 2014
that Shearing had been replaced as site medical director and submitted another sick call request
slip. Id. Plaintiff was seen on October 5, 2014 for his eye and nasal problems, and was told that
he’d be referred to the MD and the eye doctor. Id. Plaintiff was seen by the new Wexford
Medical Director, Dr. Trost, on October 9, 2014. (Doc. 1, p. 16). Trost prescribed Claritin,
Bactrim, and Bleph to address the pus drainage and Plaintiff’s allergies and referred Plaintiff to
the eye doctor. Id.
Plaintiff was seen by on-site optometrist Dr. Christine Lochhead on October 23, 2014.
Id. Lochhead performed a brief eye exam, and prescribed a warm compress. Id. She told
Plaintiff that Wexford would not prescribe surgery because Plaintiff’s condition did not meet

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Wexford’s policy requirements and because Plaintiff’s injury had occurred prior to his time in
IDOC custody. Id.
Plaintiff saw on-site optometrist Lewis J. Eyrich on March 7, 2016. (Doc. 1, pp. 16-17).
Plaintiff alleges that Eyrich performed the first complete eye examination he received at that
time. (Doc. 1, p.17). Eyrich recommended an outside referral based on the ongoing mucus
discharge that had not responded to treatment. Id. The referral was approved on March 15,
2016. Id. Plaintiff saw Dr. Donald Unwin of Quantum Vision Center (“QVC”) on April 12,
2016, who recommended a surgical consult for Plaintiff’s broken right eye socket. Id. Eyrich
also recommended a follow-up for potential glaucoma. Id. Plaintiff saw Trost again on April
29, 2016, who in turn referred Plaintiff back to the on-site optometrist. Id. When Plaintiff next
saw the on-site optometrist, he told Plaintiff he did not understand why the April 12, 2016
recommendation had not been acted on and submitted a request for referral, which was approved
on July 6, 2016. (Doc. 1, p. 18).
Plaintiff went off-site on August 15, 2016 and saw another unidentified eye specialist
with QVC who also agreed that Plaintiff needed surgery, but declined to perform it because QVC
was not equipped for the procedure. (Doc. 1, p. 18). This optometrist also recommended that
Plaintiff be referred to a hospital for surgery and told Plaintiff that he could go blind without the
surgery. Id. However, once Plaintiff returned to Menard, Trost delayed following up with
Plaintiff and submitting his paperwork. Id. As a result, Wexford Utilization review did not
approve the referral until September 23, 2016, and Plaintiff was not actually scheduled for a
consultation until October 11, 2016. Id. The consultation was scheduled for December 1, 2016.
Id. Plaintiff also saw Dr. Sutterer on October 7, 2016. Id.

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At the consultation, the specialist agreed that surgery was necessary, exactly as the
specialist at Stroger had recommended more than 4 years prior. (Doc. 1, p. 20). Plaintiff finally
had surgery on March 7, 2017. (Doc. 1, p. 21). Plaintiff was also told at the December 1 visit
that the pus draining from his eyes was due to his tear ducts being blocked, and was the cause of
fevers, headaches, dizziness, double vision, and blurry vision. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 4 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
claims survive threshold review:
Count 1 – Wexford’s policies regarding cost and eye care delayed Plaintiff’s
medical treatment for more than 4 years, prolonging his pain and suffering in
violation of the Eighth Amendment;
Count 2 – Wexford, Shearing, Trost, Johnson, Sutterer, Lochhead, and Walls
were deliberately indifferent to Plaintiff’s eye condition in violation of the Eighth
Amendment when they failed to diagnose his right orbital fracture, failed to
follow the recommendation of the specialist from John Stroger Hospital, delayed
treatment, and failed to follow repeated specialist recommendations.
Plaintiff has also attempted to bring other Counts, but for the reasons elucidated below,
these claims do not survive threshold review.
Count 3 – Shearing, Trost, Johnson, Sutterer, Lochhead, and Walls were
medically negligent pursuant to state law when they failed to diagnose Plaintiff’s
right orbital facture, failed to follow the recommendation of the specialist from
John Stroger Hospital, delayed treatment, and failed to follow repeated specialist
recommendations;
Count 4 – Wexford, Shearing, and Walls violated Plaintiff’s First and Fourteenth
Amendment rights when they retaliated against Plaintiff for filing grievances over
the denial of medical care.
As to Plaintiff’s Count 1, for purposes of § 1983, the courts treat “a private corporation
acting under color of state law as though it were a municipal entity,” Jackson v. Ill. Medi–Car,
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Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002), so Wexford will be treated as a municipal entity for
this suit. “[T]o maintain a § 1983 claim against a municipality, [a plaintiff] must establish the
requisite culpability (a ‘policy or custom’ attributable to municipal policymakers) and the
requisite causation (the policy or custom was the ‘moving force’ behind the constitutional
deprivation).” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002) (quoting Monell v.
Dep't of Social Servs., 436 U.S. 658, 691 (1978)).
Here Plaintiff has alleged that Wexford had a policy of not approving eye surgery
because it was too costly. He has alleged that his surgery to repair a broken orbital floor, which
the Court assumes is a serious medical need for the sake of this order, was delayed more than 4
years because of Wexford’s policies. As a result of the delay, Plaintiff suffered from numerous
symptoms, including pain, dizziness, headaches, blurred vision, ear ringing, and double vision.
He also alleges that he was put at increased risk of developing glaucoma by the failure to treat
his blocked tear ducts, which were a side effect of his initial injury. Plaintiff also alleges that
Wexford has a policy of providing insufficient treatment for eye conditions generally. Plaintiff
has alleged that his medical care providers acted pursuant to these policies and that as a result of
these policies, he was harmed. That is sufficient to state a claim at this stage. Count 1 shall
proceed on Plaintiff’s claims that Wexford had unconstitutional policies regarding the cost of
treatment and treatment for eye conditions.
Plaintiff has also attempted to bring a claim based on respondeat superior against
Wexford. Governmental entities cannot be held liable for the unconstitutional acts of their
employees unless those acts were carried out pursuant to an official custom or policy.
Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006). See also Monell v. Dept. of
Soc. Serv., 436 U.S. 658, 694 (1978). Respondeat superior is therefore not an independent basis

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for liability pursuant to § 1983. While the Seventh Circuit has expressed some skepticism about
the continued vitality of case law prohibiting claims against private corporations except in cases
in where a policy caused the harm, Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 786
(7th Cir. 2014), the Shields court ultimately continued to extend Monell to private corporations
and require that plaintiffs show that their injuries were caused by a Wexford policy, custom, or
practice of deliberate indifference. Id. at 795. Given this precedent, Plaintiff’s claims based on
the alternative theory of respondeat superior shall be dismissed, to the extent they are
encompassed in Count 1.
Count 2 generally alleges that the individual defendants were deliberately indifferent to
Plaintiff’s eye condition. 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 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)).

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“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).
The Court presumes that Plaintiff’s eye condition and its attendant symptoms constitute a
serious medical need for the purposes of this order. Plaintiff has named Wexford in connection
with this count, but Wexford must be dismissed from Count 2, because as discussed more fully
above, Wexford can only be held responsible on a theory that employees acted pursuant to an
unconstitutional Wexford policy or custom, and that allegation is already fully encompassed by
Count 1.
Plaintiff has adequately alleged deliberate indifference against Defendants Shearing,
Trost, Johnson, Lochhead, and Walls. Plaintiff has alleged that he suffered from a serious
medical need. As to Shearing, he has further alleged that Shearing repeatedly told him that he
was not in need of medical care and denied him medical care, despite the persistence of
Plaintiff’s symptoms. The denial of medical care to a prisoner suffering from a serious medical
need is textbook deliberate indifference.
However, Plaintiff’s claims against Shearing must be dismissed at this time on statute of
limitations grounds. Although typically, affirmative defenses such filing after the statute of

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limitations are litigated by the parties after service, see Jones v. Bock, 549 U.S. 199, 212 (2007),
a Court may invoke these defenses on § 1915A review when the availability of the defense is
apparent on the face of the Complaint. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002); Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002); Brownlee v. Conine, 957 F.2d 353,
354 (7th Cir. 1992).
Section 1983 does not contain its own statute of limitations, and so § 1983 claims are
governed by the law of the state where the alleged violation occurred. Johnson v. Rivera, 272
F.3d 519, 521 (7th Cir. 2001)(citing Wilson v. Garcia, 471 U.S. 261. 276 (1985)). In this
District, § 1983 claims are governed by Illinois’ 2-year statute of limitations. Dominguez v.
Hendley, 545 F.3d 585, 588 (7th Cir. 2008). However the Court is also bound to apply a state’s
tolling rules, and in Illinois, the operation of 735 ILCS 5/13-216 has the effect of tolling the
limitation period while a prisoner completes the administrative grievance process. Gomez v.
Randle, 680 F.3d 859, 864 (7th Cir. 2012); Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir.
2008); Johnson, 272 F.3d at 521. The statute is only tolled while the prisoner exhausts his
administrative remedies; it is not tolled during the time period between the injury and the start of
the administrative remedy process. Santiago v. Snyder, 211 F. App’x 478, 480 (7th Cir. 2006)
(rejecting plaintiff’s argument that he was entitled for 8 more months of tolling to account for the
time between his injury and his grievance when he was allegedly pursuing informal remedies).
The last time Plaintiff saw Dr. Shearing was April 26, 2013, more than 4 years prior to
the time Plaintiff filed suit. Plaintiff argues in his memorandum in support of the Complaint that
his claims are timely as to Shearing due to the continuing violation doctrine. The continuing
violation doctrine holds that a violation keeps accruing for so long as it continues to happen.
Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001); see also Turley v. Rednour, 729 F.3d 645,

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651 (7th Cir. 2013). For example, in a medical deliberate indifference claim, the claim continues
to accrue as long as the condition goes untreated. This allows a plaintiff to reach back to the
beginning of a constitutional violation even if that beginning lies outside of the statute of
limitations period, in lieu of requiring litigants to bring suit over every single incident of
unlawful conduct. Id. However, the termination of injury is not the only means of claim accrual;
when a defendant loses the ability to address the plaintiff’s condition, the claim immediately
accrues as to that person. Heard v. Elyea, 525 F. App’x 510, 511 (7th Cir. 2013) (finding
summary judgment on statute of limitations grounds appropriate where defendant retired 3 weeks
before prisoner received adequate treatment and prisoner did not bring suit until 2 years after
treatment date).
Although it is not clear exactly when Shearing left his employment at Menard, the
Complaint affirmatively alleges that Shearing was not the medical director anymore as of
October 5, 2014. In fact, Plaintiff alleges that he specifically sought treatment because he had
been told that Shearing had left and someone else would be making the medical decisions. Thus,
it is clear from the Complaint that as of October 5, 2014, Shearing was no longer able to offer
Plaintiff treatment to address his condition. Giving Plaintiff the benefit of the inference most
favorable to him and assuming that Shearing was employed up to October 4, 2014, Plaintiff
would have had to bring suit no later than October 4, 2016. He is almost a year too late. Even
assuming that the statute of limitations was tolled while Plaintiff exhausted his November 16,
2016 grievance,1 Plaintiff would only be entitled to 27 days of tolling. He would have had to file
suit no later than October 31, 2016. Because Plaintiff did not file suit until September 20, 2017,

1

This is a dubious proposition because Plaintiff filed a grievance more than 60 days after Shearing left
Menard, which likely makes it untimely.

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his claims against Shearing are barred by the statute of limitations, and Shearing will be
DISMISSED with prejudice from Count 2.
Plaintiff has also stated a claim against Trost for deliberate indifference. Although Trost
did attempt to treat Plaintiff’s symptoms regarding pus drainage, he did not take action when
those symptoms persisted. Additionally, Plaintiff has alleged that Trost delayed referring him
for surgery for months after it was approved, which caused Plaintiff additional pain and suffering
unnecessarily. These facts also state a claim for deliberate indifference, and Count 2 will
proceed against Trost.
Additionally, Plaintiff has stated a deliberate indifference claim against Johnson.
Plaintiff has alleged that he saw Johnson once, on January 30, 2013, and that Johnson failed to
perform an eye examination, told him that he would not approve surgery for reasons of cost and
Wexford policy, and referred him to the medical director, who had no optometry training or
experience. Prison officials must give medical treatment that is adequate to the severity of the
condition and consistent with professional norms. Perez v. Fenoglio, 792 F.3d 768, 777 (7th Cir.
2015). As Plaintiff has alleged that he had a legitimate eye condition in need of treatment, and
that Johnson responded inappropriately, he has adequately stated a claim for deliberate
indifference against Johnson.
It is possible that Plaintiff’s claim against Johnson is also barred by the statute of
limitations for the same reasons discussed above. However, unlike Shearing, Plaintiff has not
affirmatively alleged Johnson left his position so as to be unable to correct the constitutional
violation as of a certain date. The exact contours of Johnson’s employment situation are also
unclear. Plaintiff has alleged that he worked for a subcontractor to Wexford, but has not been
explicit as to whether Johnson was the on-site optometrist or whether he was an outside medical

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provider.

If Johnson worked on-site, the claim would likely accrue on his last day of

employment, which is not currently in the record. But if he was a one-time referral, it is possible
the claim accrued on January 30, 2013. Because the statute of limitations defense is not clear
from the face of the Complaint, as with Shearing, the Court will not dismiss Johnson at this time.
As to Lochhead, Plaintiff has also stated a valid deliberate indifference claim. Plaintiff
alleges that when Lochhead examined him, she did a cursory examination, and then told him she
would not recommend surgery based on non-medical reasons per Wexford’s policies. As
Plaintiff has alleged that he needed surgery at the time of his examination, he has made a
plausible allegation that Lochhead’s conduct amounted to deliberate indifference. As with
Johnson, it is possible that Lochhead has a statute of limitation defense, but as her work history
is not included with the Complaint, the defense is not clear from its face, and the Court will not
dismiss Lochhead at this time.
Finally, as to Walls, Plaintiff has alleged that he filed a grievance detailing his lack of
medical care, and Walls denied it on June 11, 2013. Plaintiff has not alleged that Walls was
actively involved in providing medical treatment at any time. His sole contention is that Walls
condoned or turned a blind eye to the behavior of the medical department when she responded
that Plaintiff had received adequate medical care. An inmate’s correspondence with a prison
administrator may show a basis for personal liability where the correspondence shows that the
official had the requisite knowledge of the deprivation at issue. Perez, 792 F.3d at 781-82. If the
condition required the officer to exercise his or her authority and the official refused to do so, the
official may have been deliberately indifferent. Id. at 782.
Here the Complaint does not delineate the exact scope of Walls’ authority. It is not clear
whether she could have acted to force the medical providers to secure surgery for Plaintiff or

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take his eye condition more seriously. It is doubtful that the June 11, 2013 response adequately
demonstrates deliberate indifference because it is clear from the grievance that Walls
investigated Plaintiff’s complaints and found that he had been treated. However, the Complaint
does not provide facts that would tend to show that Walls was the type of official entitled to rely
on the medical judgment of others. Plaintiff has also alleged that he continued to file grievances
after the June 11th response, and if Walls saw those grievances and took no further action, she
could have been deliberately indifferent. The Court will permit further factual development on
Plaintiff’s claim against Walls and permit Count 2 to proceed as to her.
Plaintiff has also alleged that Sutterer was deliberately indifferent but the Court can only
find a single mention of him in the statement of claim: “Plaintiff was seen by Dr. Sutterer on
October 7, 2016, over seven (7) weeks after August 15, 2016 off-site specialist visit.” (Doc. 1, p.
18). This lone allegation does not support a claim for deliberate indifference. It may suggest
that Sutterer knew about Plaintiff’s condition, but without any account of what action Sutterer
took or failed to take, it provides no plausible allegation that Sutterer had a culpable state of
mind. Sutterer will be DISMISSED from Count 2 without prejudice for failure to state a claim
against him.
Count 3, alleging negligence pursuant to state law, must be dismissed. 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), as 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

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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
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). It is not enough that Plaintiff has evidence that a doctor told him he needed surgery in
2012, and that other doctors agreed with him and expressed concern that Plaintiff did not get his
surgery prior to March 2017; Plaintiff must actually find a doctor willing to put in writing that he
has a medical malpractice case.
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

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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 3 shall be dismissed. However, the dismissal shall be without
prejudice at this time, and Plaintiff shall be allowed 35 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 affidavits/certificates, the dismissal of Count 3 may become a dismissal with
prejudice. See Fed. R. Civ. P. 41(b).
Finally, Count 4, alleging retaliation, must also be dismissed. To succeed on a First
Amendment Retaliation claim, a plaintiff must prove 1) that he engaged in conduct protected by
the First Amendment; 2) that he suffered a deprivation that would likely deter First Amendment
activity in the future; and 3) that the protected conduct was a “motivating factor” for taking the
retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
The allegation is insufficient as to Wexford.

As explained more fully above, a

corporation can be held liable only for an unconstitutional practice, policy or custom. Plaintiff
has not alleged that Wexford has a policy or practice of retaliating against inmates for filing
grievances by withholding medical care.

Plaintiff argues that Wexford is responsible for

Shearing’s conduct, but this would be a repondeat superior theory of liability, and as discussed
above, there is no respondeat superior liability under § 1983. Therefore, allegation is insufficient
as to Wexford, and they will be dismissed from Count 4.

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Plaintiff may have articulated a valid retaliation claim against Shearing, but for the
reasons explained above, the statute of limitations has run as to him. Plaintiff is alleging that
Shearing found out about Plaintiff’s grievances and withheld medical treatment on that account.
Shearing could only withhold medical treatment so long as he was employed as the medical
director; once he left the prison, Plaintiff’s retaliation claim would have accrued. As Plaintiff
has alleged that Shearing was no longer at the prison as of October 5, 2014, he would have had
to bring his retaliation claim within 2 years of that time. He failed to do so, and so any
retaliation claim against Shearing is barred by the statute of limitations.
Plaintiff has also alleged that Walls retaliated against him, but his allegations on this
point are not plausible. Plaintiff filed a grievance on April 23, 2013 and when Shearing saw him
3 days later on April 26 Plaintiff alleges that Shearing told him he wasn’t getting surgery and he
could file all the grievances he wanted. This is the basis for Plaintiff’s retaliation claim against
Shearing, which is barred by the statute of limitations. Plaintiff alleges that Walls’ response to
his March 26, 2013 grievance on June 11, 2013 shows that she condoned Shearing’s retaliation.
Plaintiff has not alleged that the March 26th grievance addressed any retaliation; and his
interaction with Shearing did not occur until a month later. Walls could not have condoned
Shearing’s alleged retaliation because Shearing’s retaliation was not and could not have been the
subject of the March 26th grievance. Plaintiff has not alleged any of his other grievances
specifically addressed the retaliation, or that Walls responded to those grievances. In the absence
of any allegations that Walls had specific knowledge of retaliation, Plaintiff’s conclusion that she
knew about it and condoned it is entirely speculative. All Plaintiff has alleged is that he filed a
grievance regarding his medical treatment, and Walls responded unfavorably to it. If this were
sufficient to state a retaliation claim, every denied grievance could be the basis of such a claim, a

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result that would be entirely unworkable and unfair. Count 4 will be DISMISSED without
prejudice as to Walls. If Plaintiff has additional facts that would make a retaliation claim
plausible, he is free to file an amended complaint raising them.
Pending Motions
Plaintiff filed a Motion for service at government expense with the Complaint. (Doc. 4).
Plaintiff was granted leave to proceed IFP on September 28, 2017. (Doc. 6). Pursuant to Fed. R.
Civ. P. 4(c)(3), the Court is required to order service if the plaintiff is authorized to proceed in
forma pauperis. Because the Court is already obligated to order service, Plaintiff’s Motion is
MOOT. (Doc. 4).
Plaintiff’s Motion for Recruitment of Counsel shall be referred to a United States
Magistrate Judge for disposition. (Doc. 3).
Plaintiff has requested permanent injunctive relief. The Court has not understood this
request to include a request for a preliminary injunction, as most of the request appears futureoriented, and Plaintiff has alleged that he received surgery in March 2017. If Plaintiff wishes the
Court to consider issuing a preliminary injunction, he should file a motion on that point.
Disposition
IT IS HEREBY ORDERED that Counts 1-2 survive threshold review. Wexford is
DISMISSED with prejudice from Count 2. Count 3 is DISMISSED without prejudice for
failure to submit the necessary affidavits. Count 4 is DISMISSED with prejudice as to
Wexford and Shearing; and without prejudice as to Walls. Shearing is DISMISSED from this
action with prejudice as any claims against him are barred by the statute of limitations. Sutterer
is DISMISSED from this action without prejudice for failure to state a claim. Plaintiff’s
Motion for Service at Government Expense is DENIED as MOOT. (Doc. 4).

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IT IS FURTHER ORDERED that if Plaintiff wishes to move the Court to reinstate the
medical malpractice/negligence claim(s) in Count 3 against Defendants Shearing, Trost,
Johnson, Sutterer, Lochhead, and Walls, 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 January
2, 2018). 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 3 may become a dismissal with
prejudice.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Wexford Health
Sources, Inc., John Trost, Eric Johnson, Christine Lochhead, and Gail Walls: (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.

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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 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).

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IT IS SO ORDERED.
DATED: November 27, 2017
s/J. Phil Gilbert
U.S. District Judge

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