Gibson v. Wexford Health Sources, Inc. et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge J. Phil Gilbert on 4/4/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIE GIBSON,
#R17924,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
DENTIST ASSELMEIER, and
STEVEN NEWBOLD,
Defendants.

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Case No. 18−cv–585−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Willie Gibson, an inmate in Menard Correctional Center (“Menard”), 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 dental
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).
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: in August 2017,
Plaintiff began to experience extreme dental pain on both sides of his mouth from two teeth.
(Doc. 1, p. 5). Plaintiff sent in over 10 requests to see a dentist, addressed to dentists Asselmeier
and Newbold, but he did not receive a response. Id. Plaintiff sent two letters to Wexford Health
Sources, Inc. (“Wexford”), but no one responded. Id.
“Wexford has a widespread practice among their employees of delaying medical
treatment” which causes pain and suffering. (Doc. 1, p. 6). There is regularly a backlog of
several hundred inmates waiting for medical and dental services. Id. Wexford refuses to send
emergency patients to an outside hospital, which has caused Plaintiff to suffer. Id. Wexford also
refuses to provide a full staff of dentists to tend to “the thousands of inmates at Menard.” Id.
This has caused Plaintiff’s condition to worsen and has resulted in his having to endure extreme
dental pain. Id.

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In Plaintiff’s requests to Asselmeier, he explained the symptoms he was experiencing
from his two problematic teeth, including extreme pain, bleeding, swelling, abscesses, and
drainage. (Doc. 1, p. 7). Plaintiff also explained that there was a huge hole in one of the teeth.
Id. On January 23, 2018, five months after Plaintiff began submitting requests, Plaintiff spoke
with Asselmeier. Id. Asselmeier told Plaintiff that he and Newbold had received Plaintiff’s
requests and that they were unable to put him on a call line to be treated because Menard was at
full capacity, and they were a few hundred inmates behind in scheduling. (Doc. 1, pp. 7-8).
Plaintiff told Asselmeier about his aforementioned symptoms and tried to show him the hole in
his tooth, but Asselmeier told him that there was nothing he could do at that time. (Doc. 1, p. 8).
Plaintiff then asked for pain pills and antibiotics to hold him over until he was called, but
Asselmeier denied the request and told Plaintiff he would receive some once he was called. Id.
On January 26, 2018, Plaintiff was again called to see Asselmeier. Id. Plaintiff once
again recounted his symptoms of bleeding, swelling, abscesses, and drainage. (Doc. 1, pp. 8-9).
Asselmeier examined Plaintiff and told him he would provide a temporary filling for the hole in
Plaintiff’s tooth. (Doc. 1, p. 9). Plaintiff responded that “temps don’t last” and asked if a
permanent filling would be provided. Id. Asselmeier responded that it would not, as the waiting
list was almost two years. Id. Plaintiff also asked about his other bothersome tooth, but
Asselmeier told him that he would be unable to tend to it that day because of the long line of
inmates behind him. Id. Plaintiff then requested pain medication, and Asselmeier told him he
would send some to Plaintiff’s cell. Id.
In Plaintiff’s requests to Newbold, he explained the symptoms he was experiencing from
his two problematic teeth, including extreme pain, bleeding, swelling, abscesses, and drainage.
(Doc. 1, p. 11). Newbold received these requests but ignored them for five months. Id.

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Newbold “is the chief dentist with supervisory authority,” and he “has the authority to send the
Plaintiff to an off-site hospital for dental treatment but refused to do so.” Id.
Plaintiff requests monetary damages from the defendants. (Doc. 1, p. 13).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to designate a
single count in this pro se action. The parties and the Court will use this designation in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of this count does not constitute an opinion regarding its merit.
Count 1 –

Defendants showed deliberate indifference to Plaintiff’s serious dental
need involving two painful teeth in violation of the Eighth Amendment.

As discussed in more detail below, Count 1 will be allowed to 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.
Count 1
The Eighth Amendment to the United States Constitution 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).
Plaintiff has satisfied this standard with respect to each of the defendants. He claims he
suffered extreme pain from two problematic teeth for months, and further claims that Asselmeier
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and Newbold were both aware of his plight and ignored it for an extended period of time.
Plaintiff also asserts that the treatment he finally received was inadequate, as he received a
temporary filling in only one of his two problematic teeth, and his other tooth was not tended to.
With respect to Wexford, the Seventh Circuit has held that the Monell theory of
municipal liability applies in § 1983 claims brought against private companies that act under
color of state law. Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016)
(citing Shields v. Ill. Dept. of Corr., 746 F.3d 782 (7th Cir. 2014) (noting every circuit court that
has addressed the issue has extended the Monell standard to private corporations acting under
color of state law). In order to prevail on his deliberate indifference claim against Wexford,
Plaintiff must establish that its policies, customs, or practices caused a constitutional violation.
Whiting, 839 F.3d at 664 (citing Thomas v. Cook Cty. Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir.
2009)). Plaintiff alleges that Wexford instituted several policies, customs, or practices that
resulted in the denial and delay of care for his teeth, including its decision to understaff Menard’s
dental personnel and its policy of not allowing inmates to be sent to outside hospitals.
For the foregoing reasons, Count 1 shall receive further review against Asselmeier,
Newbold, and Wexford.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against WEXFORD,
ASSELMEIER, and NEWBOLD.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall prepare for
WEXFORD, ASSELMEIER, and NEWBOLD: (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

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the defendants’ 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 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.
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 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

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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: April 4, 2018
s/J. Phil Gilbert
United States District Judge

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