Leach, Sr. v. Menard Correctional Center et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/16/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAVARUS LEACH, SR., # R-03102,
Plaintiff,
vs.
MENARD CORRECTIONAL CENTER,
DR. RITZ,
M. SIDDIQUI,
NURSE MOLL,
N.P. ZIMMER,
NURSE HEATHER,
WARDEN LASHBROOK,
and WEXFORD,
Defendants.

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Case No. 18-cv-947-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff, an inmate of the Illinois Department of Corrections (“IDOC”) currently incarcerated
at Menard Correctional Center (“Menard”), has brought this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff claims that the defendants have been deliberately indifferent to a serious
medical condition. The Complaint is now before the Court for a preliminary review pursuant to
28 U.S.C. § 1915A.
Under Section 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the complaint
that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for
money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).
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 “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026-27
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(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. Conversely, a complaint is plausible on its face “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is
obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011),
some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice
of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of action or conclusory
legal statements.” Id. At the same time, however, the factual allegations of a pro se complaint are to
be liberally construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive threshold
review.
The Complaint
Plaintiff has two bumps/growths on his neck, which were diagnosed as keloids sometime in
early 2017. (Doc. 1, pp. 11-12, 18). In approximately June 2017, he complained that the bumps were
growing in size and had become painful and irritating. (Doc. 1, pp. 8, 18). In August 2017, Plaintiff
saw Dr. Siddiqui about this problem. At Plaintiff’s request, Dr. Siddiqui sought approval to send
Plaintiff to an outside doctor for the keloids to be surgically removed. (Doc. 1, pp. 2, 22, 27). Dr.
Siddiqui did not give Plaintiff any medication for the condition. (Doc. 1, p. 2). In an apparent
reference to Dr. Siddiqui, Plaintiff says “the doctor” told him that there was no medication that
would help the pain, so he put in a request for surgery. (Doc. 1, p. 7).
On August 18, 2017, Dr. Ritz denied the request for a surgical evaluation. (Doc. 1, pp. 1, 22,
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27). Plaintiff asserts, and his medical record reflects, that Dr. Ritz and Dr. Siddiqui were aware that
the keloids were painful, caused “intermittent burning, stinging, and itching,” and were “tender to
palpation.” (Doc. 1, pp. 1, 22). Dr. Ritz noted that removal of the keloids/nodules “is considered
cosmetic and does not meet guidelines.” (Doc. 1, p. 22). Plaintiff contends that by denying the
surgery and leaving Plaintiff to suffer in pain, Dr. Ritz violated his Eighth Amendment rights.
(Doc. 1, p. 8).
According to Plaintiff, Dr. Siddiqui “is trying or did stop the process, of the mentally stress &
further results I was suppose[d] to have done, that N.P. Zimmer put me in for, an ultrasound!”
(Doc. 1, p. 8). Dr. Siddiqui told Plaintiff he did not know why the keloids developed, when other
scars in the same area did not lead to keloids. Id.
As to the other defendants, Plaintiff states that he saw Nurse Moll about the keloids at a sick
call in 2017, and he wants to sue her. (Doc. 1, p. 2). He saw N.P. (Nurse Practitioner) Zimmer on
December 8, 2017, about the two cyst-like areas. (Doc. 1, p. 3). Nurse Heather told Plaintiff that the
bumps “could be a fatty tumor,” and that it didn’t “sit well with her” because it had an oval, not
circular, shape. She believed the condition was “a problem.” (Doc. 1, p. 4). Plaintiff lists “Wexford”
as a defendant along with Dr. Ritz. (Doc. 1, p. 1).
Warden Lashbrook denied Plaintiff’s emergency grievance and returned it to Plaintiff stating
his problem was not an emergency. (Doc. 1, p. 5). The grievance stated that Plaintiff was in daily
pain, and he feared the cysts could be cancerous. Id.
As relief, Plaintiff seeks injunctive relief to require Dr. Ritz to approve surgery to remove the
keloids. (Doc. 1, p. 10). He also seeks compensatory damages. Plaintiff further states that a “Nurse
Tee” (whom he does not include as a defendant) told him on April 7, 2018, that she would
recommend steroid shots for the keloids, and he wants to have this steroid treatment approved.
(Doc. 1, p. 9).

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Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se
action into the following 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 as to their merit. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be considered dismissed without prejudice.
Count 1:

Eighth Amendment deliberate indifference claim against Dr. Ritz, for
denying Plaintiff’s referral for possible surgery to remove his painful
keloids;

Count 2:

Eighth Amendment deliberate indifference claim against Wexford, in
connection with Plaintiff’s request for possible surgery to remove his
painful keloids;

Count 3:

Eighth Amendment deliberate indifference claim against Dr. Siddiqui,
for failing to obtain a surgical referral evaluation or provide other
effective treatment for Plaintiff’s keloids;

Count 4:

Eighth Amendment deliberate indifference claim against Nurse Moll,
N.P. Zimmer, and Nurse Heather, for failing to provide treatment for
Plaintiff’s keloids;

Count 5:

Eighth Amendment deliberate indifference claim against Warden
Lashbrook and Menard Correctional Center, in connection with
Plaintiff’s request for surgery to remove the keloids.

As explained below, Count 1 shall proceed for further review. Counts 2, 3, 4, and 5 shall be
dismissed without prejudice for failure to state a claim upon which relief may be granted.
Deliberate Indifference to a Serious Medical Condition
In order to state a claim for deliberate indifference to a serious medical need, an inmate must
show that he (1) suffered from an objectively serious medical condition; and (2) that the defendant
was deliberately indifferent to a risk of serious harm from that condition. An objectively serious
condition includes an ailment that significantly affects an individual’s daily activities or which
involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).

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“Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and either acts or fails to act in disregard of that risk. Delaying
treatment may constitute deliberate indifference if such delay exacerbated the injury or unnecessarily
prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations
and quotations omitted). See also Farmer v. Brennan, 511 U.S. 825, 842 (1994); Perez v. Fenoglio,
792 F.3d 768, 777-78 (7th Cir. 2015). The Eighth Amendment does not give prisoners entitlement to
“demand specific care” or “the best care possible,” but only requires “reasonable measures to meet a
substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Further, a
defendant’s inadvertent error, negligence, or even ordinary malpractice is insufficient to rise to the
level of an Eighth Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675, 679
(7th Cir. 2008).
In this case, Plaintiff’s keloids caused him significant pain and discomfort from burning,
itching, and tenderness. By the time this lawsuit was filed, Plaintiff had suffered from this condition
for at least a year, and he reported that the keloids had grown in size. Under these circumstances, the
painful nature of the condition is arguably sufficiently serious to satisfy the objective component of
an Eighth Amendment claim. The remaining question is whether the various defendants acted or
failed to act with deliberate indifference to a known risk of serious harm.
Count 1 – Dr. Ritz
Plaintiff alleges that he informed Dr. Siddiqui of the pain caused by the keloids, and this led
to Dr. Siddiqui’s request for a surgical referral. This information was allegedly conveyed to Dr. Ritz.
Furthermore, the document signed by Dr. Ritz in which he denied permission for Plaintiff to have a
surgical evaluation reflects Plaintiff’s complaints of burning, stinging, itching, and tenderness from
the keloids. In spite of his knowledge of Plaintiff’s reported symptoms, Dr. Ritz denied the surgical
referral, noting that Plaintiff’s symptoms should be treated onsite. (Doc. 1, p. 22).
At this early stage of the case, Dr. Ritz’s disapproval of a surgical evaluation for possible
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removal of Plaintiff’s painful keloids may support a deliberate indifference claim. See Greeno v.
Daley, 414 F.3d 645, 655 (7th Cir. 2005) (lengthy course of ineffective treatment and refusal to order
testing or specialist referral over a two-year period during which plaintiff suffered from ulcer
suggested deliberate indifference). Plaintiff shall therefore be allowed to proceed with the claim in
Count 1 against Dr. Ritz.
Dismissal of Count 2 – Wexford
Plaintiff appears to list Wexford among the defendants, but it is not entirely clear whether he
intended to assert a separate claim against this company. In the section of the form Complaint where
blank spaces are provided to list each defendant, Plaintiff’s entry reads: “Defendant Wexford is
employed as Head of Healthcare with Dr. Ritz UM, 501 Holiday Dr., Pittsburgh, PA.” (Doc. 1, p. 1)
(underlines represent the blanks filled in by Plaintiff). Plaintiff then proceeds to alleged that Dr. Ritz
denied his surgery.
Plaintiff includes no allegations whatsoever against Wexford in the body of the Complaint.
Merely invoking the name of a potential defendant is not sufficient to state a claim against the party.
See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a claim against a
defendant by including the defendant’s name in the caption.”). The only mention of Wexford in the
pleading, other than in the list of defendants, is on the attached exhibit documenting Dr. Ritz’s denial
of the surgery request, and in two other notes. The denial document is a form with the heading,
“Wexford Health Sources Incorporated,” which identifies Dr. Ritz as the “Dedicated Utilization
Management Physician” for Wexford. (Doc. 1, p. 22). An “Offender Outpatient Progress Note” dated
August 17, 2017, states that, “Offender was presented in Collegial today by Dr. Siddiqui to Dr. Ritz,
UM Wexford for a surgery on fibrous nodules. Referral has been denied by Dr. Ritz and he would
like to have P/T monitored for changes.” (Doc. 1, p. 27). Another note dated August 18, 2017, states
that Dr. Ritz, Wexford UM, has not approved the surgical evaluation referral at this time. (Doc. 1,
p. 35).
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Defendant Wexford is a corporation that employs Dr. Ritz (and presumably the other medical
providers) and provides medical care at the prison, but it cannot be held liable solely on that basis. 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 articulated any claims that an individual defendant either acted or failed to act as a result of
an official policy espoused by Defendant Wexford. He may be able to do so in an amended
complaint (the wording of Dr. Ritz’s denial states that unidentified “guidelines” were not met for the
surgical referral to be approved), but as presently pled, the Complaint fails to state a claim against
Wexford upon which relief may be granted.
For these reasons, Count 2 shall be dismissed at this time without prejudice.
Dismissal of Count 3 – Dr. Siddiqui
Dr. Siddiqui responded to Plaintiff’s request for treatment/removal of the keloids by seeking
permission for Plaintiff to be referred to an outside specialist for a surgical consultation. Far from
demonstrating deliberate indifference to Plaintiff’s condition, Dr. Siddiqui attempted to obtain the
treatment Plaintiff wanted, but Dr. Ritz turned down the referral request. Based on the allegations in
the Complaint, Dr. Siddiqui cannot be faulted for that outcome.
Plaintiff’s other allegations regarding Dr. Siddiqui do not support a deliberate indifference
claim. Dr. Siddiqui did not give Plaintiff medication for the keloids, but also apparently indicated
that medication would not help relieve the pain. (Doc. 1, pp. 2, 7). If that is correct, then the decision
not to give Plaintiff medication would not violate the Eighth Amendment. Plaintiff’s statement
regarding Dr. Siddiqui and the ultrasound possibly ordered by N.P. Zimmer is unintelligible. (Doc. 1,
p. 8). And Dr. Siddiqui’s inability to explain why Plaintiff developed the keloids has no bearing on
whether or not he was deliberately indifferent to Plaintiff’s need for treatment of the condition.
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The Complaint fails to state a claim against Dr. Siddiqui for deliberate indifference to
Plaintiff’s keloid condition. Count 3 shall therefore be dismissed at this time without prejudice.
Dismissal of Count 4 – Nurses
Plaintiff does not state any facts regarding his encounters with Nurse Moll, N.P. Zimmer, or
Nurse Heather to indicate any mistreatment by these medical providers. He merely says that he wants
to sue them, apparently because he had at least one consultation with each of these defendants
regarding the keloids. Plaintiff does not describe any denial of treatment or failure to respond to a
request for assistance by any of these individuals. To the contrary, he relates comments made by
Nurse Heather indicating that she was concerned about his condition and that it was a “problem.”
Nothing in these allegations suggests that Nurses Moll or Heather, or N.P. Zimmer, was deliberately
indifferent to Plaintiff’s medical condition. Accordingly, Count 4 also shall be dismissed without
prejudice for failure to state a claim upon which relief may be granted.
Dismissal of Count 5 – Warden and Menard Correctional Center
Menard Correctional Center shall be dismissed from the case with prejudice, because it is not
an entity that may be sued in a civil rights action. State agencies, such as the IDOC, cannot be sued
for damages in a Section 1983 case. The Supreme Court has held that “neither a State nor its officials
acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh
Amendment bars suits against states in federal court for money damages); Billman v. Ind. Dep’t of
Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune from suit by
virtue of Eleventh Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991)
(same). The same rule applies to Menard, as it is a division of the IDOC.
Turning to Warden Lashbrook, the only allegation Plaintiff raises against her is that she
denied his emergency grievance, ruling that it was not an emergency. (Doc. 1, p. 5). Plaintiff does not
include that grievance or indicate the date it was filed. He indicates that he resubmitted the grievance,
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and it is currently in the grievance office. Id.
As a rule, a prison official who denies a prisoner’s grievance does not incur liability for the
incident that gave rise to the grievance. The Seventh Circuit instructs that the alleged mishandling of
grievances “by persons who otherwise did not cause or participate in the underlying conduct states no
claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See also 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). Exceptions to this rule may arise, under circumstances
that do not appear to apply to this case. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015)
(prisoner could proceed with deliberate indifference claim against non-medical prison officials who
failed to intervene despite their knowledge of his serious medical condition and inadequate medical
care, as explained in his “coherent and highly detailed grievances and other correspondences”).
Here, nothing in the Complaint indicates that his emergency grievance to Lashbrook was
sufficiently informative to put the warden on notice that Menard’s medical providers were neglecting
a serious medical condition, such that Lashbrook’s failure to intervene would amount to deliberate
indifference. For this reason, Plaintiff’s claim in Count 5 against Lashbrook shall be dismissed
without prejudice.
Plaintiff has not stated a viable claim for relief against Warden Lashbrook in her personal
capacity. Because Plaintiff is seeking injunctive relief, however, the warden shall remain in the
action in her official capacity only. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011)
(proper defendant in a claim for injunctive relief is the government official responsible for ensuring
any injunctive relief is carried out).
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.

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Disposition
COUNTS 2, 3, 4, and 5 are DISMISSED without prejudice for failure to state a claim upon
which relief may be granted. All claims against WARDEN LASHBROOK in her individual
capacity are DISMISSED without prejudice.
SIDDIQUI, NURSE MOLL, N.P. ZIMMER, NURSE HEATHER, and WEXFORD are
DISMISSED from this action without prejudice. MENARD CORRECTIONAL CENTER is
DISMISSED from this action with prejudice.
In order for COUNT 1 to proceed, the Clerk of Court shall prepare for DR. RITZ and
WARDEN LASHBROOK (Official Capacity Only): (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 each
defendant’s 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 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, his or her 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 United States Magistrate
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Judge Donald G. Wilkerson for further pre-trial proceedings, which shall include a determination on
the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge Wilkerson
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, notwithstanding 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 want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: May 16, 2018

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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