Laktas v. Wexford health Sources, Inc., et al

Filing 10

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Document 4 MOTION for Service of Process at Government Expense filed by Stanislaus Lawrence Laktas is GRANTED. Signed by Judge David R. Herndon on 7/20/2018. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STANISLAUS LAWRENCE LAKTAS,
# R-12404,
Plaintiff,
vs.

Case No. 18-cv-1299-DRH

WEXFORD HEALTH SOURCES, INC.,
V. SHAH,
MICHAEL SCOTT,
DR. BUTALID,
CHRISTINE BROWN,
DR. MATTRICK,
and LOUIS SHICKER,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff, currently incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”), has brought this pro se civil rights action pursuant to 42 U.S.C.
§ 1983. Plaintiff claims that Defendants have been deliberately indifferent to his
serious medical conditions. This case is now before the Court for a preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter
out non-meritorious 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).
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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 (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 Plaintiff’s claims survive
threshold review under § 1915A.

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The Complaint
By way of background, Plaintiff states that he suffered a broken neck and
damaged spine in an accident while in the Rock Island County Jail.

He was

transferred to IDOC (Illinois Department of Corrections) custody in May 2002
with those injuries.

(Doc. 1, p. 5).

In September 2007, while Plaintiff was

incarcerated at Menard Correctional Center, he had surgery to place 3 titanium
plates in his neck and to fuse the broken vertebrae. (Doc. 1, p. 6).
For the next 2 years, Menard doctors tried unsuccessfully to manage
Plaintiff’s severe pain (a consistent 7-8 level on a scale of 10) with medications. In
August 2009, Plaintiff had 2 more surgical procedures at an outside hospital,
where a neurostimulation system manufactured by Medtronic, Inc., was
implanted in his abdomen. This system was effective in relieving Plaintiff’s pain.
It included a 2-piece wireless hand-held device which allowed Plaintiff to
reprogram the implant’s settings for conditions such as traveling in his wheelchair
over a bumpy sidewalk, or moving from a prone position to a seated one. (Doc. 1,
pp. 7-8). The unit required periodic maintenance, including battery replacement
and rebooting, and might need total replacement at some point. The hand-held
unit had a display to notify the user when the device needed to be serviced. A
technician was available to respond within 72 hours to any request for servicing
of the neurostimulation unit.
In August 2011, Plaintiff was transferred to Pinckneyville. Well into 2014,
his neurostimulation system continued to work to reduce his pain by 40-60%

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from the level he endured without the implant.

(Doc. 1, p. 7).

However, on

October 13, 2014, Plaintiff notified Dr. Shah that the device was malfunctioning
and his pain level was increasing. (Doc. 1, p. 8). Dr. Shah did not see Plaintiff
until November 10, 2014, and would not allow Plaintiff to explain his condition or
his history with the device. By this time, Plaintiff’s pain levels were consistently
back up to 7-8, and sometimes 9 or 10 when traveling over rough ground in his
wheelchair. Dr. Shah told Plaintiff he would check his records and get back to
him.
On November 21, 2014, Plaintiff returned to Dr. Shah for a follow-up
consultation, but Shah had not yet reviewed Plaintiff’s medical records and took
no action regarding Plaintiff’s situation. On November 24, 2014, Plaintiff wrote to
Christine Brown (Pinckneyville Health Care Administrator), explaining his need to
have the implant system serviced, and pointing out Dr. Shah’s failure to address
his condition. (Doc. 1, p. 8). Brown took no action in response to this letter.
(Doc. 1, p. 19). On December 12, 2014, Plaintiff wrote to his counselor about the
problem, explaining that the implant was malfunctioning and he was in
excruciating pain. (Doc. 1, p. 8).
On December 16, 2014, Dr. Shah informed Plaintiff that he would be sent
on a medical furlough to have the unit serviced. (Doc. 1, p. 9). However, on
December 26, 2014, Dr. Shah called Plaintiff back in to say that he and Wexford
Health Services, Inc., (“Wexford”) had concluded that Plaintiff “was getting along
fine without the device.” Id. Shah prescribed Ultram for pain relief.

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In January 2015, Plaintiff wrote to Medtronic, Inc., requesting servicing of
the implant.

Plaintiff informed Shah on January 11 and 14, 2015, that the

Ultram was ineffective and was causing dizziness; he again requested the implant
be serviced because his pain was nearly unbearable. (Doc. 1, p. 9).
In February 2015, Plaintiff saw a physical therapist, who diagnosed him
with a serious carpal tunnel condition and recommended treatment for that as
well as service for the neurostimulation implant. (Doc. 1, p. 10). Soon thereafter,
Dr. Mattrick (Regional Medical Director) agreed that Plaintiff needed carpal tunnel
surgery as well as repair of the implant, stating that “No one, not even an inmate,
should have to beg to have medical issues treated.” Id. However, Mattrick failed
to schedule Plaintiff for the surgery. (Doc. 1, p. 19).
Also in February 2015, Plaintiff wrote to the Health Care Unit to say that
his 8-year-old neck brace had deteriorated to the point of ineffectiveness. (Doc. 1,
p. 10).
On March 5, 2015, Shah informed Plaintiff that he would be sent to see a
neurosurgeon for the carpal tunnel and shoulder issues; that he was
recommending replacement of the neck brace; and that a Medtronics technician
would service the neurostimulation implant. (Doc. 1, p. 10). On March 25, 2015,
Plaintiff went to the Brain and Spinal Cord Center in Carbondale, where a
Medtronic technician reset the implant and replaced the hand-held unit. Both the
hand-held device and the antenna had been “dead” for, he estimated, 161 days. A
replacement antenna would be mailed to Pinckneyville. The technician noted that

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if a problem occurred, the doctor could call Medtronic, and someone would come
out to service the unit within 72 hours. Plaintiff learned that he had not been
scheduled to see a neurosurgeon after all for his carpal tunnel problem.
On April 11, 2015, the implant malfunctioned again, and Plaintiff could not
control the settings. His pain level went back up to 7 or higher on a scale of 10.
Plaintiff wrote to the Health Care Unit numerous times between April 11 and
October 18, 2015 asking for pain relief and servicing of the implant, to no avail.
(Doc. 1, p. 11).
Plaintiff wrote to Dr. Shicker (the IDOC Health Care Director) on October
19, 2015, detailing his history of problems with his “medical issues” and the lack
of response by Pinckneyville staff.

(Doc. 1, pp. 11-12).

Dr. Shicker took no

action in response. (Doc. 1, p. 20).
On November 16, 2015, Plaintiff went back to the Brain and Spinal Cord
Center, where Dr. Bryant confirmed that Plaintiff was in serious need of carpal
tunnel surgery, and had a growth on his shoulder that should be removed. (Doc.
1, p. 12).
On December 1, 2015, Dr. Shah told Plaintiff that nothing would be done
about the neurostimulation device because his “issues are not life-threatening.”
(Doc. 1, p. 12). Shah refused to do anything about Plaintiff’s severe pain.
On February 5, 2016, Plaintiff met with Dr. Scott for the first time. Scott
refused to discuss the neurostimulation device, and confiscated Plaintiff’s handheld control unit. Scott then reduced Plaintiff’s Ibuprofen prescription from 800

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mg twice daily, to 400 mg once per day. (Doc. 1, pp. 12-13). That same day,
Plaintiff went back to the Brain and Spinal Cord Center, where another doctor
(Dr. Vargas) confirmed he needed carpal tunnel surgery on both elbows and his
left wrist.
In March 2016, a nurse practitioner (Rector) told Plaintiff that he had been
scheduled to see a neurosurgeon about the carpal tunnel condition, as well as an
eye surgeon. However, somebody had “intentionally buried [Plaintiff’s] file.” (Doc.
1, p. 13). She would try to reschedule those visits.
On October 14, 2016, Dr. Scott told Plaintiff that nothing would be done to
repair the neurostimulation system, and he would not have carpal tunnel surgery.
Scott told Plaintiff he should be “ecstatic” that Pinckneyville provides him with a
wheelchair and an attendant. (Doc. 1, p. 13). Scott acknowledged that Plaintiff
was suffering pain, but said, “pain is not life-threatening, and I am not responsible
for making you comfortable.” Id.
One year later, on October 23, 2017, Plaintiff returned to the Brain and
Spinal Cord Center, where Dr. Bryant expressed concern that Plaintiff had still
not been given the surgery that Dr. Bryant recommended 1-1/2 years previously.
He recommended surgery for both the spine and carpal tunnel conditions, which
had become worse. In November 2017, Plaintiff went to a Rehabilitation Clinic in
Herrin, Illinois, where a doctor concluded that Plaintiff’s serious condition
warranted the surgery recommended by Dr. Bryant. (Doc. 1, p. 14).
On March 15, 2018, Plaintiff told Dr. Butalid that his pain medication was

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ineffective and had negative side effects. Butalid agreed that Plaintiff’s records
showed he needed surgery, but he could not schedule it until Wexford first gave
approval, and they were waiting for test results to come in. (Doc. 1, p. 14). On
March 21, 2018, Plaintiff learned from a nurse practitioner (Bob) that Dr. Bryant
(of the Brain and Spine Clinic) now recommended an “advanced specialist”
because Plaintiff’s condition had “progressed beyond their capabilities.” (Doc. 1,
p. 15). Wexford had still not made a decision regarding surgery. Nothing new
was done for Plaintiff’s pain.
On March 29, 2018, Dr. Butalid briefly examined Plaintiff again, but
refused to discuss his pain or other issues.

Butalid said he was forwarding

Plaintiff’s file to Wexford. On April 2, 2018, nurse practitioner Bob told Plaintiff
there was no news from Wexford, and ordered him an egg crate mattress to help
with his pain. (Doc. 1, p. 16).
Plaintiff asserts that Wexford has a policy and practice to order redundant
tests in order to delay treatment which was recommended as a result of the
original tests, and this constitutes deliberate indifference to Plaintiff’s serious,
long-term medical needs. (Doc. 1, p. 18).
Plaintiff seeks an injunction requiring Wexford or its agents to provide him
with the recommended carpal tunnel surgery, and to repair or replace the
neurostimulation pain-relief system that was implanted in August 2009 with
Wexford’s approval.

He also seeks declaratory relief, and compensatory and

punitive damages. (Doc. 1, pp. 20-22).

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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
Shah, Scott, and Butalid, for failing to provide treatment for
Plaintiff’s pain, including failing to request servicing of his implanted
neurostimulation device;
Count 2: Eighth Amendment deliberate indifference claim against
Shah, Scott, Butalid, and Mattrick, for failing to refer Plaintiff for
carpal tunnel surgery;
Count 3: Eighth Amendment deliberate indifference claim against
Wexford Health Sources, Inc., for failing to have Plaintiff’s implant
serviced, and for delaying and failing to approve Plaintiff’s
recommended carpal tunnel surgery;
Count 4: Eighth Amendment deliberate indifference claim against
Brown and Shicker, for failing to take any action to assist Plaintiff in
obtaining pain relief or servicing of his neurostimulation implant
after Plaintiff wrote to them about the other Defendants’ lack of care;
and against Shicker for failing to take action regarding Plaintiff’s
need for carpal tunnel surgery.
Accepting Plaintiff’s allegations as true, each of these claims shall receive
further review.
Deliberate Indifference to a Serious Medical Need
“A prisoner’s claim for deliberate indifference must establish (1) an
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objectively serious medical condition; and (2) an official’s deliberate indifference
to that condition.

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).
Plaintiff’s neck and spinal condition caused him continuous and significant
pain. Both this condition and the carpal tunnel condition satisfy the objective
component of a deliberate indifference claim. See Gutierrez v. Peters, 111 F.3d
1364, 1373 (7th Cir. 1997) (an objectively serious condition includes an ailment
that significantly affects an individual’s daily activities or which involves chronic
and substantial pain).
Count 1 – Failure to Provide Pain Relief or Service Neurostimulation Implant
Plaintiff has sufficiently alleged that Dr. Shah, Dr. Scott, and Dr. Butalid
were well informed about his ongoing and serious pain, as well as the availability
of a technician to service and repair the pain-relief implant as needed. Despite
this knowledge, these Defendants delayed and/or failed to arrange for servicing of
the implant, and failed to provide Plaintiff with medication to adequately treat his
pain. As a result, Plaintiff has had no effective pain relief for nearly the entire
period from October 2014 to the present. Count 1 shall therefore proceed for

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further consideration against Shah, Scott, and Butalid.
Count 2 – Denial/Delay of Carpal Tunnel Surgery
Plaintiff consulted Dr. Mattrick and Dr. Shah in early 2015 regarding his
need for carpal tunnel surgery. Mattrick agreed that Plaintiff needed the surgery,
but failed to schedule it or take other necessary steps for Plaintiff to have surgery.
Shah told Plaintiff in March 2015 that he would be sent to a neurosurgeon, but he
did not see one until November 2015, and the surgery never took place under
Shah’s care.
After another specialist recommended carpal tunnel surgery in February
2016, Dr. Scott refused to schedule or seek approval for the surgery in October
2016.
Surgery was again recommended in October and November 2017 by 2
consulting doctors.

After a nearly 5 month delay, in March 2018 Dr. Butalid

apparently requested approval from Wexford for Plaintiff to have the carpal tunnel
surgery. By that time, Plaintiff’s condition had deteriorated to the point that he
would need treatment by an “advanced specialist.”
Plaintiff’s Complaint indicates that he still has not been approved for the
carpal tunnel surgery. Based on the facts presented, Plaintiff may proceed with
Count 2 against Shah, Mattrick, Scott, and Butalid, for denying and delaying
surgery for the carpal tunnel condition.
Count 3 – Wexford
Defendant Wexford Health Sources, Inc., (“Wexford”) is a corporation that

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employs Defendants Shah, Scott, Butalid, and Mattrick, 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).
Here, Plaintiff has alleged that Wexford’s policy of ordering superfluous
testing caused some of the delay in approving or scheduling him for carpal tunnel
surgery. Additionally, he claims that Dr. Butalid was prevented from scheduling
the surgery that Butalid and other physicians determined was necessary, because
he could not do so without Wexford’s approval. At this stage, these allegations
support a claim that Plaintiff was unable to be scheduled for surgery because of
an official policy espoused by Defendant Wexford, at least for the period beginning
in March 2018, when Dr. Butalid began the process of seeking Wexford’s
approval.
In addition, in December 2014 when Dr. Shah refused to arrange for
Plaintiff’s neurostimulation unit to be serviced, he told Plaintiff that he and
Wexford determined that Plaintiff “was getting along fine without the device.” (Doc.
1, p. 9).

Wexford’s decision thus appears to have contributed to Plaintiff’s

inability to have the implanted device restored to service.
Count 3 may therefore proceed against Wexford.

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Count 4 – Failure to Intervene to Provide Treatment
Pinckneyville Health Care Administrator Brown did not directly provide
treatment to Plaintiff. Plaintiff alleges that she was responsible for ensuring that
the doctors under her supervision provided adequate medical care. This alone is
not enough to impose liability on her, because the doctrine of respondeat superior
(supervisory liability) is not applicable to § 1983 actions. Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001). However, if an administrator is sufficiently
informed of a prisoner’s serious medical condition and the failure of medical
providers to render adequate care, yet fails to intervene on the prisoner’s behalf,
that administrator may be found to be deliberately indifferent to the prisoner’s
condition. 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”).
Plaintiff claims that he wrote a letter of complaint to Brown in November
2014, after Dr. Shah failed to take any steps to have Plaintiff’s neurostimulation
pain-relief implant serviced for over one month. (Doc. 1, p. 8). Taking Plaintiff’s
factual statements as true, his letter to Brown may have sufficiently informed her
of the need for prompt attention to get the implant back in working condition. He
alleges that Brown did nothing to address the problem, and he was not sent to a
Medtronic technician until March 2015. At this stage, Plaintiff may proceed with

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his deliberate indifference claim against Brown in Count 4.
Finally, Plaintiff alleges that he wrote to IDOC Medical Director Shicker in
October 2015, “detailed the history of the problems” he had been experiencing at
Pinckneyville with the lack of attention to his medical conditions, and “begged
Defendant Shicker to step in and help.”

(Doc. 1, pp. 11-12).

Plaintiff’s

his

medical

conditions

included

severe

pain

At that time,

and

inoperable

neurostimulation unit, as well as his need for carpal tunnel surgery, which had
been recommended by Mattick back in February 2015. It is plausible that this
letter sufficiently placed Shicker on notice of the failure of Pinckneyville officials
to address both of Plaintiff’s serious conditions for a period of many months, yet
Shicker allegedly took no steps to ensure that Plaintiff would be evaluated or
treated. Accordingly, Count 4 shall also proceed against Shicker.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) is referred to the
United States Magistrate Judge for further consideration.
The motion for service of process at government expense (Doc. 4), while
unnecessary for Plaintiff because he has been authorized to proceed in forma

pauperis, is GRANTED. Service shall be ordered below.
Disposition
The Clerk of Court shall prepare for Defendants WEXFORD HEALTH
SOURCES, INC., SHAH, SCOTT, BUTALID, BROWN, MATTRICK, and
SHICKER: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a

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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, 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, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to the United States

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Magistrate Judge for disposition, pursuant to Local Rule 72.2(b)(3) 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.

Judge Herndon
2018.07.20
15:39:46 -05'00'
United States District Judge

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