Hernandez v. The Illinois Department of Corrections et al

Filing 62

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court adopts the 56 Report in its entirety, granting in part and denying in part 52 Motion to Dismiss. The Court DISMISSES with prejudice Count V of Plaintiff's Second Amended Complaint. Signed by Judge David R. Herndon on 7/13/18. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSE HERNANDEZ,
Plaintiff,
v.

No. 17-cv-1335-DRH-RJD

ILLINOIS DEPARTMENT OF CORRECTIONS,
ANNE ELIZABETH TREDWAY, JOHN COE
AND WEXFORD HEALTH SOURCES, INC.,
Defendants.
MEMORANDUM & ORDER
HERNDON, District Judge:
I.

Introduction

Pending before the Court is a Report and Recommendation (“the Report”)
issued by Magistrate Judge Reona J. Daly pursuant to 28 U.S.C. § 636, LOCAL
RULE 72.1(b)(2). (Doc. 56). The Report recommends that the Court grant in part
and deny in part defendant Wexford Health Sources, Inc.’s motion to dismiss (Doc
52). The Report was sent to the parties with a notice informing them of their right
to appeal through the filing of objections on or before June 28, 2018. Plaintiff
Hernandez timely filed an objection (Doc. 60). Based on the record and the
following, the Court ADOPTS the Report (Doc. 56) in its entirety and grants in
part defendant’s motion to dismiss (Doc. 52).

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II.

Background

Plaintiff Jose Hernandez, brought this pro se action for deprivations of his
constitutional rights while he was incarcerated at Lawrence Correctional Center
pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. §794 et seq.
Hernandez, a partial quadriplegic, alleges that he was denied assistance, which
resulted in a broken arm that was not adequately treated.
On May 7, 2018, Defendant Wexford filed a motion to dismiss Counts Five
and Six of plaintiff’s second amended complaint (Doc. 52). Wexford argues that
Count Five should be dismissed because Hernandez cannot state a respondeat
superior claim against Wexford under 42 U.S.C. § 1983. As to Count Six, Wexford
argues that it should be dismissed because Hernandez’s allegations fail to assert a
valid Monell claim. Hernandez filed a response opposing the motion (Doc. 55).
Pursuant to 28 U.S.C. ' 636(b)(1)(B), Magistrate Daly submitted a Report
and Recommendation regarding the pending motion to dismiss (Athe Report@) on
June 14, 2018 (Doc. 56). The Report recommends that the Court grant in part
and deny in part Wexford’s motion to dismiss. The Report was sent to the parties
with a notice informing them of their right to appeal by way of filing Aobjections@
within 14 days of service of the Report. On June 28, 2018, Hernandez filed an
objection to the Report regarding the dismissal of Count Five (Doc. 60).

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III.

Law and Analysis

The Court’s review of the Report is governed by 28 U.S.C. § 636(b)(1),
which provides in part:
A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate
judge with instructions.
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de novo
determination of those portions of the Report to which specific written objection
has been made. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
If no objection or only a partial objection is made, the Court reviews those
unobjected portions for clear error. Id. In addition, failure to file objections with
the district court “waives appellate review of both factual and legal questions.” Id.
Under the clear error standard, the Court can only overturn a Magistrate Judge’s
ruling if the Court is left with “the definite and firm conviction that a mistake has
been made.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th
Cir. 1997).
Rule 12(b)(6) of

THE

FEDERAL RULES

OF

CIVIL PROCEDURE provides for

dismissal if a complaint fails to state a claim upon which relief can be granted. In
considering a motion to dismiss, the Court accepts as true all well-pleaded
allegations in the complaint and draws all possible inferences in favor of the
plaintiff. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th
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Cir. 2007) (quotations omitted). A plaintiff need not set out all relevant facts or
recite the law in his or her complaint; however, the plaintiff must provide a short
and plain statement that shows that he or she is entitled to relief. See FED. R.
CIV. P. 8(a)(2). Thus, a complaint will not be dismissed if it “contain[s] sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)(quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007) ). Additionally, “[a]llegations of a pro se
complaint are held ‘to less stringent standards than formal pleadings draft by
lawyers ... Accordingly, pro se complaints are liberally construed.” Alvarado v.

Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (quoting Haines v. Kerner, 404 U.S.
519, 520 (1972) ) (other citations omitted).
As to Count 5, Judge Daly found that in a § 1983 case, respondeat superior
liability does not apply to private corporations. Iskander v. Vill. of Forest Park,
690 F.2d 126, 131 (7th Cir. 1982); see also Monell v Dep’t of Soc. Servs, 436 U.S.
658, 694 (1978). Although the

Seventh Circuit discussed the possibility of

extending vicarious liability under 42 U.S.C. §1983 to private corporations in

Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014), the Court
ultimately ruled otherwise, upholding precedent set by the Supreme Court’s
decision in Monell.
Therefore, after de novo review, the Court finds that Magistrate Judge Daly
was correct in her application of why Hernandez’s respondeat superior claims are
legally barred under Seventh Circuit law. See Shields v. Ill. Dep’t of Corr., 746

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F.3d 782, 789 (7th Cir. 2014). The Court finds that Moore’s objection merely
takes umbrage with the current legal precedent that prohibits vicarious liability
for private corporations under § 1983, and he wishes to preserve the issue for
appeal in order to argue for a change in existing law. The record before the Court
provides no reason for the Court to doubt Judge Daly’s determination. Finally,
having also reviewed all portions of the Report to which no objections were made,
the Court is satisfied that, on its face, no clear error exists.
IV.

Conclusion

Accordingly, the Court ADOPTS the Report in its entirety (Doc. 56) and
GRANTS in part and DENIES in part defendant Wexford Health Sources, Inc’s
motion to dismiss (Doc. 52). The Court DISMISSES with prejudice Count V of
plaintiff’s complaint. The case shall proceed with the claims in Counts 1, 2, 3, 4
and 6 against the defendants.
IT IS SO ORDERED.

Judge Herndon
2018.07.13
15:07:21 -05'00'
United States District Judge

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