Daniels v. Shah et al

Filing 1

MEMORANDUM AND ORDER severing case number 17-698-SMY. Signed by Judge Staci M. Yandle on 10/30/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

KENNARD DANIELS, #M44217,
Plaintiff,
vs.
DR. VIPIN SHAH,
DR. VENERIO SANTOS,
WEXFORD HEALTH SOURCES, INC.,
and LISA LERCHER,
Defendants.

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Case No. 17−cv–698−SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Kennard Daniels, an inmate at Centralia Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff claims that
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 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.”

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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).
The Court is also encouraged to sever unrelated claims against different defendants into
separate lawsuits during screening. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
This is to prevent inmates from flouting “…the rules for joining claims and defendants, see FED.
R. CIV. P. 18, 20, or [from circumventing] the Prison Litigation Reform Act’s fee requirements
by combining multiple lawsuits into a single complaint.” Owens v. Godinez, 860 F.3d 434, 436
(7th Cir. 2017). See also Wheeler v. Talbot, -- F. App’x --, 2017 WL 2417889 (7th Cir. 2017)
(district court should have severed unrelated and improperly joined claims or dismissed one of
them). Thus, consistent with George, Owens and Wheeler, any unrelated claims will be severed
into new cases, given new case numbers and assessed separate filing fees.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations regarding the alleged
mistreatment of his medical condition at Lincoln Correctional Center (“Lincoln”) and Centralia
Correctional Center (“Centralia”).
Lincoln Correctional Center
On May 20, 2014, Plaintiff notified Nurse Grady that he was having complications with

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his throat, including severe pain and bleeding. (Doc. 1, p. 6). At that time, “the Defendants
provided very little to no medical treatment.” Id. On May 27, 2014, Plaintiff told Nurse Rose
about his sore throat and the pain and bleeding that he had been experiencing since April 4,
2014. Nurse Rose treated him with acetaminophen 325 and CTM 4mg, as if he had an upper
respiratory infection. Id. Plaintiff complained to Nurse Tripplett about his sore throat on June 7,
2014. Id. Tripplett documented Plaintiff’s pain, swallowing, history of sore throats, redness and
enlarged tonsils.

Id. Neither Tripplett nor the defendants provided Plaintiff with medical

treatment at that time. Id.
On June 11, 2014, Plaintiff filed an emergency grievance requesting medical attention.
(Doc. 1, p. 7).

On June 12, 2014, Plaintiff complained of throat complications to Nurse

Jennings. Id. At that time, Plaintiff was admitted to the infirmary at the Health Care Unit
(“HCU”). Id.
On June 30, 2014, Plaintiff complained to Nurse Hurst about his sore throat and
complications. Id. Hurst treated Plaintiff as if he had an upper respiratory infection and only
provided him with acetaminophen and CTM 4mg. Id.
On September 5, 2014, Defendant Lercher responded to Plaintiff’s emergency grievance
by providing a summary of the days that Plaintiff has been to a nurse sick call. Id. Lercher
noted that Plaintiff was diagnosed with having Chronic Tonsillitis, that he has been on different
treatments, and that there is no follow up care. Id.
Plaintiff complained about a sore throat to Nurse Alexander on September 15, 2014 and
told him that he was coughing up blood and had redness, enlarged tonsils, carnal red tympanic
membrane, enlarged lymph nodes and difficulty swallowing. (Doc. 1, pp. 7-8). On September
22, 2014, Plaintiff complained again to a nurse about his throat being sore and enlarged. (Doc. 1,

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p. 8).
On September 28, 2014, Plaintiff complained of his sore throat issue to Defendant Shah.
Id. Shah provided little to no treatment to Plaintiff. Id. Plaintiff’s medical progress notes dated
October 23, 2014 indicate that his throat was sore, he had large tonsils and that his neck nodes
had been swollen for over 5 months. Id. He was given Amoxicillin, Medrol and Augmentin, but
none of them benefitted him. Id.
During his visit with Dr. Shah on October 23, 2014, Shah informed Plaintiff that there
was no medical procedure (such as a surgery) that could be performed to alleviate his tonsillitis,
noting that this was because the Illinois Department of Corrections (“IDOC”) would not pay for
nor send inmates out to receive treatment for conditions such as Plaintiff’s. (Doc. 1, pp. 8-9).
However, “a tonsillectomy is the only proper procedure for” Plaintiff’s condition. (Doc. 1, p. 9).
After Plaintiff’s family contacted Lincoln Correctional Center, IDOC and Wexford concerning
his throat issue, Plaintiff was transferred to Centralia Correctional Center. Id.
Centralia Correctional Center
On June 15, 2016, Plaintiff submitted a medical request for sick call because his tonsils
were swollen and causing him a great deal of pain and discomfort. Id. Plaintiff saw a nurse on
June 17, 2016, but she informed him that she could not do anything for him and that the doctor
would need to prescribe him antibiotics. Id.
On June 20, 2016, Plaintiff had a visit with Dr. Santos, who admitted that Plaintiff’s
tonsils were swollen and red. Id. Santos told Plaintiff that he could not do anything for him and
that he would need to get used to the swelling. (Doc. 1, p. 10). That same day, Plaintiff filed an
emergency grievance with the chief administrative officer concerning Dr. Santos’ treatment of
him, requesting a second opinion and a tonsillectomy. Id. The emergency grievance was denied

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by the grievance officer and warden on August 12, 2016. Id. Plaintiff appealed the emergency
grievance, but it was denied by Sherry Benton of the Administrative Review Board in 2017. Id.
Currently, Plaintiff is in pain, has difficulty eating and is spitting and coughing up blood.
Id. The actions of the defendants in knowingly and intentionally refusing to treat Plaintiff’s
condition and pain cause him pain, suffering, physical injury and emotional distress.

Id.

Plaintiff requests injunctive relief in the form of a tonsillectomy performed by medical
professionals other than the defendants. (Doc. 1, p. 11). Plaintiff also requests monetary
damages. 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
designation of these counts does not constitute an opinion regarding their merit.
Count 1 –

Shah showed deliberate indifference to Plaintiff’s serious medical need
involving chronic tonsillitis and pain associated therewith in violation of
the Eighth Amendment.

Count 2 –

Lercher showed deliberate indifference to Plaintiff’s serious medical need
involving chronic tonsillitis and pain associated therewith in violation of
the Eighth Amendment.

Count 3 –

Wexford Health Sources, Inc. showed deliberate indifference to Plaintiff’s
serious medical need involving chronic tonsillitis and pain associated
therewith in violation of the Eighth Amendment.

Count 4 –

Santos showed deliberate indifference to Plaintiff’s serious medical need
involving chronic tonsillitis and pain associated therewith in violation of
the Eighth Amendment.

To the extent Plaintiff sought to bring claims against individuals or entities not included
in the case caption, these individuals or entities will not be treated as defendants in this case and

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any claims against them should be considered dismissed without prejudice. See Myles v. United
States, 416 F.3d 551, 551–52 (7th Cir. 2005) (defendants must be “specif[ied] in the caption”).
Individuals mentioned in the Complaint but not included in the case caption or list of defendants
include but are not limited to: Sherry Benton, Nurse Alexander, Nurse Rose and Nurse Tripplett.
Further, 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.
As discussed in more detail below, because Counts 1, 2 and 3 involve distinct claims
against different defendants. Therefore, these counts will be severed from this case into a new
action and likely transferred to the Central District of Illinois, in which Lincoln Correctional
Center, where these claims arose, is located. Count 4 will remain in this case and will be
allowed to proceed past threshold.
The separate action for Counts 1, 2, and 3 will have a newly assigned case number, and it
shall be assessed a filing fee. The severed case shall undergo preliminary review pursuant to §
1915A after the new case number and judge assignment has been made, and after it has been
transferred if the judge assigned to it determines that a transfer is appropriate.
Count 4
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 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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Plaintiff has satisfied both the objective and subjective standard of his deliberate
indifference to medical needs claim, at least with respect to Santos’ treatment of his chronic
tonsillitis and pain, or lack thereof. Accordingly, Count 4 will proceed against Santos.
Wexford Health Sources, Inc.
Wexford is a corporate entity and is therefore treated as a municipality for purposes of §
1983 liability. See Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002).
“[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). Here, Plaintiff has not alleged any
concrete policy or custom on the part of Wexford concerning the treatment of medical conditions
such as his, nor has he alleged that the treatment he received or did not receive was due to a
policy directive by Wexford. For this reason, were Count 3 to remain in this action, it would be
dismissed without prejudice.
Count 3 will not remain in this action, however, as Plaintiff does not actually mention
Wexford in his statement of claim, at least as it describes incidents that occurred at Centralia
Correctional Center. 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 him. 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).

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And in the case of those defendants in supervisory positions, the doctrine of respondeat superior
is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(citations omitted). Because Plaintiff has not alleged that Wexford is personally responsible for
the deprivation of a constitutional right that occurred at Centralia Correctional Center, Count 3
will be severed into a new case along with the counts that involve claims arising at Lincoln
Correctional Center, as Wexford was at least mentioned in that section of the statement of claim.
Injunctive Relief
Plaintiff has requested that the Court direct the defendants to arrange for a tonsillectomy
to be performed on the Plaintiff. (Doc. 1, p. 11). To the extent Plaintiff is seeking a preliminary
injunction, such relief is issued only after the adverse party is given notice and an opportunity to
oppose the motion. See FED. R. CIV. P. 65(a)(1). “A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008) (citations omitted). See also Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Woods
v. Buss, 496 F.3d 620, 622 (7th Cir. 2007); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
Here, Plaintiff has not filed a separate motion for a preliminary injunction. He does not
mention whether he is seeking a preliminary injunction or a permanent injunction, nor does he
state that he is seeking relief pursuant to Rule 65(a). Plaintiff has also not demonstrated or
alleged that he faces any immediate or irreparable injury or loss that warrants this drastic form of
relief. As such, Plaintiff has set forth insufficient allegations in support of his request for
injunctive relief. Should his situation change during the pending action, necessitating emergency
intervention by the Court, Plaintiff may file a motion for a preliminary injunction pursuant to

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Rule 65(a). At this time, Plaintiff’s request for injunctive relief, to the extent he is seeking a
preliminary injunction, shall be DENIED without prejudice.
Pending Motions
Plaintiff has filed a Motion for Appointment of Counsel (Doc. 3) which is REFERRED
to United States Magistrate Judge Reona J. Daly for a decision.
Plaintiff's Motion for Service of Process at Government Expense (Doc. 4) is DENIED as
moot. Waivers of service of summons will be issued and served on the remaining defendant as
ordered below. Plaintiff is advised that it is not necessary for a litigant proceeding in forma
pauperis to file a motion requesting service of process by the United States Marshal Service or
other process server. The Clerk will issue summons and the Court will direct service for any
complaint that passes preliminary review.
Plaintiff’s Motion for Status (Doc. 10) is hereby DENIED as moot. This Order provides
Plaintiff with the current status of the case.
Disposition
IT IS HEREBY ORDERED that COUNT 4 shall PROCEED against SANTOS.
IT IS FURTHER ORDERED that COUNTS 1, 2, and 3, which are unrelated to the
other claims in this action, are SEVERED into a new case against SHAH, LERCHER, and
WEXFORD HEALTH SOURCES, INC.
The claims in the newly severed case shall be subject to screening pursuant to 28 U.S.C.
§ 1915A after the new case number and judge assignment is made. In the new case, the Clerk is
DIRECTED to file the following documents:
•
•
•

This Memorandum and Order;
The Complaint (Doc. 1); and
Plaintiff’s motion to proceed in forma pauperis (Doc. 2).

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Plaintiff will be responsible for an additional $350 filing fee in this newly severed
case. 1 No service shall be ordered in the severed case until the § 1915A review is completed.
IT IS FURTHER ORDERED that the only claim remaining in this action is Count 4.
IT IS FURTHER ORDERED that Defendants SHAH and LERCHER are
TERMINATED from this action with prejudice, and WEXFORD HEALTH SOURCES,
INC. is DISMISSED from this action without prejudice.
IT IS ORDERED that as to COUNT 4, the Clerk of Court shall prepare for
SANTOS: (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 Santos’s place of employment as
identified by Plaintiff. If Santos 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 him, and the Court will require him 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.
Defendant Santos is 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 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is also to
be assessed in all civil actions, unless pauper status is granted.

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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, including a decision on the pending
Motion to Appoint Counsel (Doc. 3). 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, regardless of whether
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: October 30, 2017
s/ STACI M. YANDLE
Staci M. Yandle
United States District Judge

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