Horne v. Wexford Health Care, Inc. et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge David R. Herndon on 2/8/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY HORNE,
#N-02869,
Plaintiff,

Case No. 18 cv–126 DRH

vs.
WEXFORD HEALTH CARE, INC.
CHRISTING BROWN, and
PATTY THULL,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Anthony Horne, an inmate in Pinckneyville Correctional Center
(“Pinckneyville”), brings this action pursuant to 42 U.S.C. § 1983 for alleged
deprivations of his constitutional rights. In his Complaint, Plaintiff claims 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
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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.” 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).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations:
Wexford Health Care, Inc. (“Wexford”) failed to ensure that there was an
optometrist at Pinckneyville from October 31, 2016 to September 25, 2017.
(Doc. 1, p. 6). Christine Brown neglected to ensure Plaintiff’s medical needs were
taken care of for nearly a year, knowing that there was no optometrist available at
Pinckneyville despite a long list of people waiting to see the optometrist. (Doc. 1,
pp. 6, 8). Dr. Michael Scott referred Plaintiff to an optometrist on November 14,

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2016. Id. Plaintiff did not see anyone until August 22, 2017. Id. On August 22,
2017, Plaintiff was taken to an outside optometrist and diagnosed with macular
dystrophy. Id. Plaintiff also learned that he would have to have laser surgery on
his eyes.

Id.

Plaintiff would not have “gone through any of this if Christine

Brown, and her staff, would have done what Dr. Scott ordered. They all knew
[Plaintiff] was diabetic.” Id. “Christine Brown had her own program going where
[inmates] had to go through her unlawful program to see [an] eye doctor.” Id.
Brown also knew that because Plaintiff was diabetic, he needed to have his eyes
dilated twice per year to see if his diabetes had affected his vision. (Doc. 1, p. 7).
Plaintiff’s eyes were not tested for nine months, despite the need for a test every
six months. Id. Christine Brown also deceived Plaintiff by trying to sell reading
glasses that were advertised as two dollars for eight dollars instead. (Doc. 1, p.
8).
Patty

Thull

did

not

“do

her

job

because

her

job

is

to

make

recommendations not decisions. The director makes all final decisions.”

Id.

Plaintiff received eyeglasses on November 8, 2017, over one year later. Plaintiff
“had this eye problem since 2016.” Id. Plaintiff returned to Marion Eye Center
and was told that they were not going to treat him for his eye problem.

Id.

Plaintiff was told to wait to see if it got worse. Id. Plaintiff was also prevented
from exhausting his administrative remedies on these issues, particularly by Patty
Thull, because she refused to forward Plaintiff’s grievance to Illinois Department
of Corrections Director John Baldwin. (Doc. 1, pp. 10-11).

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Plaintiff has constant headaches without proper glasses, as well as
“macular dystrophy, nuclear cataract, bilateral.” (Doc. 1, p. 12). “All defendants
had knowledge of this unwanted punishment before sending Plaintiff to [an]
outside optometrist.” Id. “Christine Brown and staff held [Plaintiff’s] prescription
for 33 days until the new eye doctor came to Pinckneyville.” (Doc. 1, p. 14). It is
Christine Brown’s “job as Health Care Administrator to make sure that her staff
sends all prescriptions off to where ever they need to go. Not hold them another
month for any reason.” (Doc. 1, p. 16).
Plaintiff seeks declaratory and monetary relief. (Doc. 1, p. 17).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 3 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 –

Brown and Wexford showed deliberate indifference to
Plaintiff’s serious medical need involving his macular
dystrophy in violation of the Eighth Amendment.

Count 2 –

Brown and Wexford showed deliberate indifference to
Plaintiff’s serious medical need by delaying the fulfillment of
his eyeglass prescription in violation of the Eighth Amendment.

Count 3 –

Patty Thull inhibited Plaintiff’s access to the grievance
procedure in violation of his due process and/or First
Amendment rights and Illinois law by failing to forward
Plaintiff’s grievance(s) to John Baldwin.

As discussed in more detail below, Counts 1 and 2 will be allowed to
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proceed past threshold. 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.
The Court notes that it appears that Plaintiff may seek to bring claims
against individuals or entities not included in the case caption. Because they were
not listed in the case caption or list of defendants, these individuals or entities will
not be treated as defendants in this case. See Myles v. United States, 416 F.3d
551, 551–52 (7th Cir. 2005) (defendants must be “specif[ied] in the caption”).
Bob Blum, Dr. Nista, and John Baldwin, for example, were mentioned in the
Complaint but were not included in the case caption or list of defendants and will
not be considered defendants in this case.
Count 1 – Macular Dystrophy
The Eighth Amendment

protects

prisoners

from

cruel

and

unusual

punishment. See Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010). The Supreme
Court has recognized that “deliberate indifference to serious medical needs of
prisoners” may constitute cruel and unusual punishment.

Estelle v. Gamble,

429 U.S. 97, 104 (1976); see Erickson v. Pardus, 551 U.S. 89, 94 (2006)
(per curiam). To state a claim, a prisoner must show that: (1) he suffered from
an objectively serious medical need; and (2) state officials acted with deliberate
indifference to the prisoner’s medical need, which is a subjective standard.

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d
842, 845 (7th Cir. 2001).

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The Court finds that Plaintiff has satisfied the objective standard as he
claims he has macular dystrophy that will soon require eye surgery. With respect
to the subjective standard, Plaintiff claims that Brown failed to arrange for an
optometrist to visit Pinckneyville despite knowing that there was a long list of
inmates in need of an eye doctor, including him. Plaintiff also claims that Brown
was aware of his diabetes, and knew that he required an eye exam every six
months, but allowed Plaintiff to go nine months between exams despite his
referral to an outside optometrist by Dr. Scott. These allegations are sufficient to
state a claim against Brown at this early stage.
With respect to Wexford, a corporation can be held liable for deliberate
indifference only if it had a policy or practice that caused the alleged violation of a
constitutional right. Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927
(7th Cir. 2004). See also Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 766 n.6
(7th Cir. 2002) (private corporation is treated as though it were a municipal entity
in a § 1983 action). Plaintiff has not alleged that any of the defendants either
acted or failed to act as a result of an official policy espoused by Wexford.
Therefore, Plaintiff cannot maintain a deliberate indifference claim against
Wexford.
Count 2 – Eyeglass Prescription
At this stage, Plaintiff’s eyesight, which gives him headaches and prevents
him from seeing properly without glasses, constitutes a serious medical need.

See (Doc. 1, p. 21). Further, construing Plaintiff’s claims in his favor, the Court

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finds that Plaintiff’s allegations against Brown, that she held his prescription for
more than a month without good cause and that he was prevented from obtaining
glasses for nearly a year despite his requests for them, satisfies the subjective
standard. See (Doc. 1, p. 22). Count 2 will therefore proceed against Brown.
Plaintiff’s claims against Wexford fail for the reasons articulated under Count 1.
Count 3 – Grievance Procedure
Generally, a prison official’s mishandling of grievances states no claim
where the official “otherwise did not cause or participate in the underlying
conduct.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); Grieveson v.

Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605,
609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
The mishandling of grievances by a prison official, more specifically, does not give
rise to a First Amendment claim for the denial of access to the courts. The Prison
Litigation Reform Act (“PLRA”) requires prisoners to exhaust all available
administrative remedies before filing a suit in federal court. 42 U.S.C. § 1997e(a).
However, administrative remedies are considered to be unavailable under the
PLRA when prison officials mishandle or fail to respond to a prisoner’s
grievances. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (citations
omitted). A plaintiff who can demonstrate the unavailability of administrative
remedies is relieved from the obligation to exhaust them and can proceed with his
or her suit. Lewis, 300 F.3d at 833.

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The Complaint fails to state a claim against Thull for failing to forward
Plaintiff’s grievance(s) to John Baldwin. His access to the courts could not have
been impeded by the alleged actions, as the unavailability of administrative
remedies, as explained above, is no bar to potential litigants bringing their claims.
Further, Plaintiff cites 730 Ill. 5/3-2-3 in support of his claim. A federal court,
however, does not enforce state law and regulations. Archie v. City of Racine, 847
F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989);

Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001).
“The simple fact that state law prescribes certain procedures does not mean that
the procedures thereby acquire a federal constitutional dimension.”

Vruno v.

Schwarzwalder, 600 F.2d 124, 130-31 (8th Cir. 1979) (citations omitted).
For the foregoing reasons, Count 3, for Thull’s failure to forward Plaintiff’s
grievance(s)

to

John Baldwin, thereby impeding

his

ability

to

exhaust

administrative remedies, shall be dismissed with prejudice as frivolous.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3) which is
REFERRED to a United States Magistrate Judge 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.

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The Clerk will issue summons and the Court will direct service for any complaint
that passes preliminary review.
Disposition
IT IS HEREBY ORDERED that COUNTS 1 and 2 shall PROCEED against
BROWN.
IT IS FURTHER ORDERED that COUNT 3 is DISMISSED with prejudice
as frivolous.
IT IS FURTHER ORDERED that WEXFORD HEALTH CARE, INC. and
THULL are DISMISSED without prejudice for failure to state a claim upon which
relief may be granted.
IT IS FURTHER ORDERED that as to COUNTS 1 and 2, the Clerk of
Court shall prepare for BROWN: (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 Defendant’s place of employment as identified by
Plaintiff.

If the 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 the defendant 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

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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 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).
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 shall be REFERRED to a United States Magistrate Judge 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 Section 1915, Plaintiff will be required to pay the full
amount of the costs, despite the fact that 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

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want of prosecution. See FED. R. CIV. P. 41(b).

Judge Herndon
2018.02.08
12:24:19 -06'00'

IT IS SO ORDERED.

United States District Judge

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