Hernandez v. The Illinois Department of Corrections et al

Filing 91

ORDER ADOPTING 70 Report and Recommendations: The Court fully agrees with the findings, analysis, and conclusions of Judge Daly and ADOPTS the Report and Recommendation in its entirety. The Motion to Dismiss filed by Wexford (18-cv-1442, Doc. 16) is GRANTED. The Clerk of Court is DIRECTED to modify the docket sheet in accordance with footnote 1. Signed by Chief Judge Nancy J. Rosenstengel on 7/12/2019. (jmp2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSE HERNANDEZ,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS, ANNE ELIZABETH
TREDWAY, JOHN COE, WEXFORD
HEALTH SOURCES, INC.,
LORIE CUNNINGHAM,
DEE DEE BROOKHEART, 1 and
NURSE ALLENDER,

Case No. 3:17-CV-1335-NJR-RJD
3:18-CV-1442-NJR-RJD

Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Reona J. Daly (17-cv-1335, Doc. 70), which recommends granting
the motion to dismiss filed by Wexford Health Sources, Inc. (“Wexford”) (18-cv-1442,
Doc. 16). These two cases were consolidated on March 14, 2019, because there is
significant overlap between the defendants and the harm alleged in both cases, although
the conduct underlying the claims is different (see 18-cv-1442, Doc. 28).

1

According to her Answer, the correct spelling of this defendant’s last name is “Brookhart” (see Doc. 84 in
18-1442). The Clerk of Court shall modify the docket sheet accordingly.

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FACTUAL AND PROCEDURAL BACKGROUND 2
Plaintiff Jose Hernandez served two years’ incarceration at Lawrence Correctional
Center (“Lawrence”) for a motor vehicle accident that resulted in the death of his
passenger and paralyzed him from the chest down (17-cv-1335, Doc. 1). Hernandez has
limited control over his arms, but he is confined to gross motor movements and cannot
grasp with his hands (Id.). Consequentially, Hernandez relied on medical staff at
Lawrence to turn him from one side to the other throughout the night, to avoid
developing pain and pressure sores (Id.). Throughout his incarceration, he was housed in
Lawrence’s infirmary, and his bed was equipped with a call button (Id.). Hernandez
alleges the staff at Lawrence frequently ignored his calls or turned the call button off
altogether, even after he lodged several complaints with the facility (Id.). The prison
doctor also denied Hernandez’s request for a trapeze device that would have permitted
him to safely shift around in bed (Id.). Hernandez eventually broke his arm while
attempting to turn himself over in bed, after staff ignored requests for assistance from
him and his cellmate (Id.). He alleges he received inadequate treatment for his arm
following the injury (Id.).
On December 12, 2017, Hernandez, who is represented by counsel, filed a
complaint in this Court under 42 U.S.C. § 1983 (“Section 1983”) (17-cv-1335, Doc. 1). His
amended complaint alleges the following counts:

These allegations are taken from the complaint and accepted as true for purposes of Wexford’s motion to
dismiss. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013) (“We review a Rule 12(b)(6) dismissal de
novo, construing the complaint in the light most favorable to the plaintiffs, accepting as true all wellpleaded facts and drawing reasonable inferences in the plaintiff’s favor.”).
2

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Count 1:

Violation of the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq., against the Illinois Department of
Corrections (“IDOC”) for denying Hernandez reasonable
accommodations and discriminating against him because of
his status as a partial quadriplegic;

Count 2:

Violation of the Rehabilitation Act (“RA”), 29 U.S.C. § 794 et
seq., against IDOC for denying Hernandez reasonable
accommodations and discriminating against him because of
his status as a partial quadriplegic;

Count 3:

Violation of the Eighth Amendment against Elizabeth
Tredway and John Coe for being deliberately indifferent to
Hernandez’s serious medical needs by denying him a trapeze
device and ignoring his calls for assistance;

Count 4:

Violation of the Eighth Amendment against John Coe for
being deliberately indifferent to Hernandez’s serious medical
needs by providing inadequate treatment for his broken arm;

Count 5:

Violation of the Eighth Amendment against Wexford under
respondeat superior for its staff being deliberately indifferent to
Hernandez’s serious medical needs; and

Count 6:

Violation of the Eighth Amendment against Wexford for
deliberate indifference to Hernandez’s serious medical needs
based on a policy or custom.

(17-cv-1335, Doc. 49).
On May 7, 2018, Wexford filed a motion to dismiss, arguing, in part, that Count 5
should be dismissed because Hernandez cannot state a respondeat superior claim against a
private corporation under Section 1983 (17-cv-1335, Doc. 52). Hernandez opposed the
motion, relying on dicta from the Seventh Circuit’s decision in Shields v. Ill. Dep’t of Corr.,
746 F.3d 782 (7th Cir. 2014) (17-cv-1335, Doc. 55). In Shields, the Seventh Circuit discussed
the possibility of extending vicarious liability to private corporations in Section 1983
cases, but ultimately ruled otherwise. Shields, 746 F.3d at 790-91.
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Judge Daly issued a Report and Recommendation, which recommended
dismissing Count 5 (17-cv-1335, Doc. 56). Judge Daly declined to ignore Seventh Circuit
precedent that refuses to extend vicarious liability to private corporations under Section
1983 (Id. citing Iskander v. Vill. of Forest Park, 690 F.2d 126, 131 (7th Cir. 1983)). District
Judge David R. Herndon adopted the Report and Recommendation and dismissed Count
5 with prejudice for failure to state a claim (17-cv-1335, Doc. 62). 3
In the meantime, on July 25, 2018, Hernandez filed another complaint in this Court,
alleging staff at Lawrence denied his request for a replacement mattress that was
specially designed to reduce his risk of developing bed sores; his mattress had deflated
over the course of his incarceration (18-cv-1442, Doc. 1). Although Hernandez eventually
received another mattress, the replacement was also inadequate (Id.). Hernandez suffered
from medical complications because of the defective mattresses, including bloody
pressure sores and bacterial infections (Id.). Hernandez is currently proceeding on the
following counts related to that complaint:
Count 1:

Violation of the ADA against IDOC for denying Hernandez
reasonable accommodations and discriminating against him
because of his status as a partial quadriplegic;

Count 2:

Violation of the Rehabilitation Act against IDOC for denying
Hernandez reasonable accommodations and discriminating
against him because of his status as a partial quadriplegic;

Count 3:

Violation of the Eighth Amendment against John Coe, Lorie
Cunningham, Nurse Allender, and Dee Brookhart for being
deliberately indifferent to Hernandez’s serious medical needs
by denying him a proper mattress; and

This case was transferred to the docket of the undersigned District Judge on December 19, 2018 (17-cv1335, Doc. 63) in light of Judge Herndon’s retirement.
3

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Count 4:

Violation of the Eighth Amendment against Wexford under
respondeat superior for its staff being deliberately indifferent to
Hernandez’s serious medical needs.

(Id.).
On October 1, 2018, Wexford filed a motion to dismiss Count 4 (18-cv-1442,
Doc. 16). Again, Wexford argues respondeat superior claims are not cognizable under
Section 1983, and Hernandez opposes the motion based on Shields (18-cv-1442, Docs. 16
& 18). As mentioned above, on March 14, 2019, the Court consolidated Hernandez’s cases
before ruling on the motion to dismiss (18-cv-1442, Doc. 28).
On April 4, 2019, Judge Daly issued the Report and Recommendation currently
before the Court; she recommends granting the motion to dismiss (17-cv-1335, Doc. 70).
Hernandez filed a timely objection, citing Shields and the recently decided Gaston v. Ghosh,
920 F.3d 493 (7th Cir. 2019). In Gaston, the Seventh Circuit cast doubt on its decision in
Iskander, where it held that private corporations cannot be held liable under Section 1983
based on vicarious liability (17-cv-1335, Doc. 74). In the end, the Seventh Circuit did not
reach the Iskander issue, because the plaintiff could not meet his burden of proving
deliberate indifference against Wexford’s employee. Gaston, 920 F.3d at 497. The Court
explained, “[E]ven if we were to overrule Iskander, Gaston would need to show that
someone whose acts are imputed to Wexford violated the Eighth Amendment . . . .” Id.
Hernandez argues that, in this case, he can establish deliberate indifference against
Wexford employees. Thus, he urges this Court to consider a change in existing law by
permitting him to proceed on a respondeat superior claim.
Where timely objections are filed, this Court must undertake a de novo review of
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the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDILLR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also
Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). A judge may then “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).
LEGAL STANDARDS
The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the complaint,
not to determine the merits of the case or decide whether a plaintiff will ultimately
prevail. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Claims filed within
the federal courts are governed by the Federal Rule of Civil Procedure 8(a)(2), which
requires only “a short and plaint statement of the claim showing that the pleader is
entitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). For a claim to
survive a Rule 12(b)(6) motion to dismiss, the claim must sufficiently “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged” Id. A
plaintiff need not plead detailed factual allegations, but must provide “more than labels
and conclusions, and a formulaic recitation of the elements.” Bell Atlantic Corp v. Twombly,
550 U.S. 544, 570 (2007). “A plaintiff still must provide only enough detail to give the
defendant fair notice of what the claim is and the grounds upon which it rests, and,
through his allegations, show that it is plausible, rather than merely speculative, that he
is entitled to relief.” Lang v. TCF Nat. Bank, 249 F. App’x 464, 466 (7th Cir. 2007) (citing
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Bell Atlantic, 550 U.S. 544, 555 (2007)). For purposes of a motion to dismiss under Rule
12(b)(6), the Court must accept all well-pleaded facts as true and draw all possible
inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873,
879 (7th Cir. 2012).
DISCUSSION
The Seventh Circuit’s decision in Iskander squarely precludes Hernandez from
bringing a respondeat superior claim against Wexford under Section 1983. Iskander relies on
Monell v. New York City of Dep’t of Social Servs., 436 U.S. 658 (1978), where the United States
Supreme Court held that municipalities may be liable for their own decisions and
policies, but they are not liable for the acts of employees under a theory of respondeat
superior. Every circuit that has addressed the issue has extended the Monell standard from
local governments to private corporations. Shields, 746 F.3d at 790, and cases cited therein.
But Hernandez argues Iskander was wrongly decided because Congress never
intended to exempt private corporations from respondeat superior liability under Section
1983. The Seventh Circuit has faced similar arguments on several occasions and continues
to cast doubt on its reasoning in Iskander. See Gaston, 920 F.3d at 495, and cases cited
therein. But the Seventh Circuit has left the question unresolved, and this Court is
obligated to follow the decisions of higher courts. Reiser v. Residential Funding Corp., 380
F.3d 1027, 1029 (7th Cir. 2004).
Thus, given the state of the controlling law, the Court fully agrees with the
findings, analysis, and conclusions of Judge Daly and ADOPTS the Report and
Recommendation in its entirety. The Motion to Dismiss filed by Wexford (18-cv-1442,
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Doc. 16) is GRANTED. Hernandez proceeds on the following counts, which are renumbered for clarity:
Count 1:

ADA claims against IDOC;

Count 2:

Rehabilitation Act claims against IDOC;

Count 3:

Eighth Amendment deliberate indifference claims against
Treadway, Coe, Cunningham, Allender, and Brookhart; and

Count 4:

Eighth Amendment deliberate indifference claims against
Wexford based on its polices or customs.

The Clerk of Court is DIRECTED to modify the docket sheet in accordance with
footnote 1.
IT IS SO ORDERED.
DATED: July 12, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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