DeLong v. Morgonthaler et al

Filing 13

ORDER: The Complaint survives preliminary review pursuant to Section 1915A. The Clerk of Court is DIRECTED to serve process on Morganthaler, Hvarre, Wexford, Isaacs, Larson, and Gerst in accordance with this Order. All claims against Akbright, Smith, and Jane Doe are DISMISSED without prejudice. The Clerk shall TERMINATE them as parties on the docket. The Clerk is further DIRECTED to ENTER the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The motions for recruitment of counsel are DENIED. (Doc. 3 , 10 ). Signed by Judge Stephen P. McGlynn on 2/6/2024. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AARON DELONG,
#Y11114,
Plaintiff,

Case No. 23-cv-02111-SPM

v.
RICHARD MORGONTHALER,
KIMBERLY HVARRE,
WEXFORD HEALTH SOURCES, INC.,
DEBBIE ISAACS,
DENNIS LARSON,
GARY GERST,
KAREN AKBRIGHT,
SHANE SMITH, and
JANE DOE,
Defendants.

MEMORANDUM AND ORDER
MCGLYNN, District Judge:
Plaintiff Aaron DeLong, an inmate of the Illinois Department of Corrections who is
currently incarcerated at Centralia Correctional Center, brings this civil action pursuant to 42
U.S.C. §1983 for violations of his constitutional rights that occurred while he was housed at Big
Muddy Correctional Center. This case is before the Court for preliminary review pursuant to 28
U.S.C. § 1915A, which requires the Court to screen prisoner complaints to filter out nonmeritorious claims and dismiss any portion of a complaint that is legally frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks money damages from a defendant
who by law is immune. 28 U.S.C. § 1915A.
THE COMPLAINT
Plaintiff asserts that since 2020, he has not been given effective treatment for his ongoing
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abdominal pain. Later, he was also denied proper medical care for his back and shoulder pain as
well. Plaintiff states that he was first seen by a nurse for lower left abdomen pain on January 20,
2020. (Doc. 1, p. 6). Plaintiff was referred to the medical doctor and saw Physician Assistant Gary
Gerst. Gerst advised Plaintiff to increase his water intake, eat all fruits and vegetables, and
exercise. Gerst also prescribed Plaintiff fiber pills for three months. (Id.).
On February 9, 2020, Plaintiff was again seen by a nurse because his pain had increased,
and he was unable to stand. (Doc. 1, at p. 7). The nurse gave Plaintiff 200mg of ibuprofen for the
pain. Plaintiff had another appointment with Gerst on February 13, 2020. Gerst ordered an x-ray
of Plaintiff’s abdomen. The x-ray was taken the next day. An appointment to review the x-ray was
scheduled for February 28, 2020, but had to be rescheduled for April 28, 2020. (Id.). On April 28,
Plaintiff met with Gerst who informed him that “there was no obstruction and a mild amount of
stool that could be causing constipation.” Plaintiff informed Gerst that the fiber pills did not
provide him any relief from the pain. Gerst recorded that Plaintiff had regular bowel movements
and zero constipation. (Id.).
Plaintiff was seen by a nurse on June 4, June 13, and July 23, 2020, for indigestion and
heartburn. He was given pink bismuth and calcium antacids. (Doc. 1, p. 7). Plaintiff had another
appointment with Gerst on July 28, 2020. Plaintiff requested calcium tablets, but Gerst prescribed
him Prilosec and told him that he can purchase calcium tablets at the commissary. Plaintiff states
that multiple inmates are prescribed calcium tablets from the health care unit. (Id.).
Plaintiff was again seen by a nurse on September 10, 2020, for abdominal pain and had an
appointment with Gerst on September 15, 2020. (Doc. 1, p. 8). Plaintiff explained to Gerst that the
current treatment plan was not decreasing his pain, and the fiber pills were not helping. He stated
that he exercises every other day, drinks plenty of water, and eats all the fruits and vegetables
offered but his pain continues. Gerst again advised Plaintiff to continue taking the fiber pills and
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told him to drink lots of water, eat fruits and vegetables, and exercise. (Id.).
On November 5, 2020, Plaintiff saw a nurse for his stomach pain. (Doc. 1, p. 8). He stated
that the pain was causing him to have difficulty urinating. The nurse said she would return to take
a urine sample, but she never did. Plaintiff wrote a request on November 22, 2020, asking about
the urine test. On November 24, 2020, a nurse came to his cell to collect a urine sample. (Id.).
On December 22, 2020, Plaintiff had an appointment with Dr. Larson for the pain in his
lower left abdomen. (Doc. 1, p. 9). Dr. Larson ordered a second x-ray, blood work, and a urine
sample. Plaintiff told Dr. Larson that he had a hard time releasing gas and could not sleep on his
back or left side. Dr. Larson ordered fiber pills for a third time, even though Plaintiff explained
that the fiber pills did not offer him any relief. (Id.). Blood and urine tests were performed, but
Plaintiff did not receive an x-ray.
On January 21, 2021, Plaintiff again saw a nurse for his stomach pain. At this appointment,
Plaintiff asked about his lab results and why he had not received the x-ray ordered by Dr. Larson.
(Doc. 1, p. 11). The nurse said she would check on his questions. On January 26, 2021, an x-ray
was taken. Plaintiff had another appointment with Gerst, who again prescribed Plaintiff Prilosec.
Plaintiff told Gerst that he stopped taking Prilosec in October 2020 because it did not help. Gerst
told Plaintiff to throw the medicine away if he does not need it. (Id.).
Plaintiff had a follow-up appointment with Dr. Larson on February 8, 2021. (Doc. 1, p.
11). Dr. Larson ordered another blood test because Plaintiff’s ALT levels were “slightly high.” Dr.
Larson again told Plaintiff to drink plenty of water, eat fruits and vegetables, exercise, and take
the fiber pills. Plaintiff informed Dr. Larson that he has been following those instructions since
January 2020, when he first saw Gerst for stomach pain but with no results. (Id.).
On February 24, 2021, Plaintiff had an appointment with a nurse and requested Gas-X to
ease his pain at night due to his inability to release gas while laying down. (Doc. 1, p. 12). The
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nurse told Plaintiff that he does not have a prescription for gas related problems and so she will
refer him to the medical doctor. (Id.).
Plaintiff had an appointment with Gerst on March 4, 2021. (Doc. 1, p. 13). Gerst prescribed
him a stool softener and told Plaintiff to let Dr. Larson know if the medicine works. Plaintiff
explained that the pain he is experiencing does not feel like constipation but more of a stabbing
and pulling pain. Gerst still prescribed the stool softener. Plaintiff then saw a nurse for his stomach
pain on March 19, 2021. (Id.).
On March 24, 2021, Plaintiff had another appointment with Gerst. (Doc. 1, p. 13). At this
time, Plaintiff was still on fiber pills, Prilosec, colace, and acetaminophen. Gerst told Plaintiff that
the doctor needs to “do a G.I. or something to diagnose [his] problem.” (Id.).
On March 26, 2021, Plaintiff saw Dr. Larson who ordered another set of labs for Plaintiff’s
high ALT level. (Doc. 1, p. 14). Dr. Larson tells Plaintiff that the x-ray showed moderate stool and
gas compared to the first x-ray. Dr. Larson ordered an ultrasound and told Plaintiff that the colon
area is of concern. Plaintiff’s labs were taken on March 31, but Plaintiff did not receive an
ultrasound until May 10, 2021. (Id. at p. 14-15). On June 9, 2021, Plaintiff was seen by Gerst. (Id.
at p. 16). Gerst told Plaintiff he does not know why health care continues to send Plaintiff to him
when Dr. Larson needs to see Plaintiff regarding the ultrasound results. (Id.).
On July 7, 2021, Plaintiff had an appointment with Dr. Larson. (Doc. 1, p. 17). At the
appointment, Dr. Larson acknowledged that he does not know what is causing Plaintiff’s pain. Dr.
Larson ordered an x-ray of Plaintiff’s lower back to see if that could be causing Plaintiff’s stomach
pain. The x-ray was taken on July 8, 2021. (Id.). Plaintiff did not see Dr. Larson the rest of the
year. (Id. at p. 18). He wrote to Health Care Unit Administrator Debbie Issacs on October 12, 2021,
but did not receive a response. He wrote to her again on January 17, 2022. (Id.).
On May 31, 2022, Plaintiff saw Dr. Larson regarding shoulder pain. (Doc. 1, p. 19). Dr.
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Larson ordered an x-ray for his shoulder but refused to speak to Plaintiff about his stomach pain.
Plaintiff continued to write to Debbie Isaacs about not being seen for his stomach pain. On October
16, 2022, Plaintiff wrote to Warden Morganthaler and Assistant Warden Hvarre about the lack of
medical care. He did not receive a response. (Id.).
Plaintiff was seen again for his shoulder pain by Dr. Larson on October 25, 2022. (Doc. 1,
p. 20). Dr. Larson prescribed physical therapy but would not refer Plaintiff for an MRI. Plaintiff
told Dr. Larson that he still had stomach and back pain, and Dr. Larson told him to submit another
request slip. (Id. at p. 20-21). Plaintiff had an appointment with Gerst about his back pain on
November 2, 2022. Gerst told Plaintiff that the x-ray from July 8, 2021, showed that Plaintiff had
degenerate discs. Gerst ordered a second x-ray. (Id. at p. 21). This second x-ray of Plaintiff’s back
was taken on November 9, 2022. (Id.).
Plaintiff had a follow-up visit with Gerst on December 6, 2022. (Doc. 1, p. 22). Gerst was
unable to compare the x-ray taken in July and the most recent x-ray of Plaintiff’s back. Plaintiff
was then referred to Dr. Larson. Plaintiff saw Dr. Larson in either December 2022 or January 2023.
Dr. Larson ordered physical therapy for Plaintiff but would not change his pain medication. He
again prescribed 325mg of acetaminophen even though Plaintiff explained that the medicine does
not provide him any relief. (Id.).
Plaintiff saw Nurse Practitioner Menees for the first time on January 27, 2023. (Doc. 1, p.
23). Menees ordered an x-ray of Plaintiff’s stomach and referred Plaintiff for a G.I. consultation.
Plaintiff had another appointment with Menees on February 23, 2023. Menees informed Plaintiff
that the x-ray showed moderate stool and gas buildup. Menees also told Plaintiff that the
gastrointestinal doctors in Mount Vernon and Carbondale were “backed up.” Menees prescribed
fiber and Colace. (Id.).
Plaintiff saw Menees again on March 9, 2023. (Doc. 1, p. 24). Menees confirmed that the
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G.I. consultation has been approved but not scheduled. (Id.). On March 23, 2023, Menees
prescribed Plaintiff ibuprofen and instructed Plaintiff to alternate between taking the ibuprofen
and the acetaminophen. (Id. at p. 25). At an appointment on April 17, 2023, Menees confirmed
that his G.I. appointment had been scheduled. (Id. at p. 26). Menees also ordered blood work and
a urine sample. Menees prescribed Gas-X and Robaxin. (Id.).
Plaintiff was seen by Dr. Larson on May 5, 2023, for his back pain. (Doc. 1, p. 27). Dr.
Larson told Plaintiff that because his “ALT” levels are high, he should not take ibuprofen. Dr.
Larson referred Plaintiff for an MRI. (Id.).
Plaintiff had an appointment with a gastrointestinal specialist, Nurse Practitioner Kelly, on
May 15, 2023. (Doc. 1, p. 28). Kelly prescribed three medications for Plaintiff to take for two
weeks before she would perform an ultrasound – GaviLAX, simethicone, and Metamucil. (Id.).
On May 25, 2023, Plaintiff was told by a nurse that Dr. Larson will not order the medication
prescribed by Kelly. (Id. at p. 29). At some point, Plaintiff received GaviLAX (MiraLAX generic),
but he did not receive the other two medicines prescribed by Kelly. (Id.). On June 14, 2023,
Plaintiff received some of his simethicone prescription (generic Gas-X), but not enough to take as
prescribed for two weeks. (Id. at p. 31).
PRELIMINARY DISMISSALS
Plaintiff attempts to bring claims pursuant to the First Amendment against Morganthaler,
Hvarre, Smith, and Isaacs for their mishandling of his grievances, refusing to make grievance
forms available, and giving him false information about the grievance procedure. (Doc. 1, p. 39).
“Prison grievance procedures are not mandated by the First Amendment…and so the alleged
mishandling of [Plaintiff’s] 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).
Therefore, Plaintiff’s First Amendment claims for failing to process his grievances or make the
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grievance process available to him are dismissed with prejudice.
Plaintiff has also failed to state a claim for retaliation under the First Amendment. Plaintiff
asserts that Defendants refused to speak with him “as discipline for writing grievances.” (Doc. 1,
p. 39). In support of this claim, Plaintiff alleges that on one occasion, January 8, 2021, he requested
to speak with Warden Morganthaler, who was in his housing wing. Because Plaintiff had already
filed grievances about his issues, Morganthaler said he did not need to speak with Plaintiff and
began talking with other inmates. (Id. at p. 32). These allegations are insufficient to state a claim
for retaliation. Even assuming Morganthaler was acting with retaliatory motive, “not every slight
by a prison official supports a retaliation claim.” Gray v. Baldwin, No. 22-1398, 2023 WL
2754925, at *2 (C.D. Ill. Mar. 31, 2023) (citing Cape v. St. Joseph Cauty Jail, No. 21-cv-693-JDMGG, 2021 WL 4439773, at *2 (N.D. Ind. Sept. 28, 2021); Gully v. Hundley, No. 18-cv-539-NJR,
,2020 WL 1503577, at *5 (S.D. Ill. Mar. 30, 2020), appeal dismissed, 2020 WL 9423905 (7th Cir.
Dec. 14, 2020)). “It would trivialize the First Amendment to hold that harassment for exercising
the right to free speech was always actionable no matter how unlikely to deter a person of ordinary
firmness from the exercise.” Bart v. Telford, 677 F. 2d 622, 625 (7th Cir. 1982). Morgenthaler’s
refusal to speak to Plaintiff on January 8 was not such a deprivation as to likely deter First
Amendment activity in the future. Accordingly, Plaintiff’s First Amendment retaliation claim is
dismissed without prejudice.
The Court also dismisses any claims Plaintiff is attempting to bring for failing to receive
his prescriptions on the evening of June 3, 2023, due to staffing shortages. (Doc. 1, p. 30, 37). The
“occasional missed dose of medicine, without more, does not violate the Eighth Amendment.”
West v. Millen, 79 F. App’x 190, 194 (7th Cir. 2003) (citing Zentmyer v. Kendall Cnty., 220 F. 3d
805, 811-12 (7th Cir. 2000). Plaintiff already pleads throughout the Complaint that the medication
he was prescribed was not alleviating his symptoms, and he does “does not state that he suffered
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any adverse symptoms from missing the one dose of medication. Nor does he allege that he has
missed any other doses of his medication.” 1 Fields v. Miller, No. 20-cv-1211-pp, 2021 WL
1400907, at *2 (E.D. Wisc. Apr. 14, 2021). According, claims regarding his missed medication on
June 3, 2023, are dismissed without prejudice.
Finally, the Court dismisses Plaintiff’s claims regarding his medical records. Plaintiff states
that “Isaacs, Akbright, and Jane Doe” contributed to Eighth Amendment violations by refusing to
provide Plaintiff copies of his medical records and falsifying the records. (Doc. 1, p. 40). In support
of this claim, he alleges that he began requesting his medical records on November 6, 2022, and
did not receive an authorization form for medical records to sign until June 14, 2023. (Id. at p. 31).
The delay in receiving copies of his medical records does not amount to cruel and unusual
punishment, and the assertion that his medical records were falsified and contributed to
constitutionally inadequate care is conclusory and not supported by any factual assertions in the
Complaint. Accordingly, these claims are dismissed.
DISCUSSION
Based on the allegations in the Complaint and Plaintiff’s designations of his claims, the
Court delineates the following count:
Count 1:

Eighth Amendment claim against Larson, Gerst, Wexford,
Morganthaler, Hvarre, and Isaacs for deliberate indifference in
treating Plaintiff’s stomach, back, and shoulder pain.

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. Any other claim that is mentioned in the

The Court construes Plaintiff’s allegations regarding the delay in prescribing and dispensing the medication
recommended by Nurse Practitioner Kelly separate from the June 3 incident and included in Plaintiff’s Eighth
Amendment claim under Count 1.

1

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Complaint but not addressed in this Order should be considered dismissed without prejudice
as inadequately pled under the Twombly pleading standard.2
Count 1
In order to successfully plead an Eighth Amendment claim for deliberate indifference to a
serious medical need, the plaintiff must establish that “the defendant had actual knowledge of an
impending harm easily preventable, so that a conscious, culpable refusal to prevent the harm can
be inferred from the defendant’s failure to prevent it.” Santiago v. Walls, 599 F.3d 749, 756 (7th
Cir. 2010). “[N]egligence, or even gross negligence does not equate to deliberate indifference” and
does not state a claim for a violation of the Eighth Amendment. Johnson v. Dominguez, 5 F.4th
818, 825 (7th Cir. 2021). Furthermore, the alleged mishandling of a grievance by an official who
did not otherwise participate in the underlying conduct does not state a claim. Owens v. Hinsley,
635 F. 3d 950, 953 (7th Cir. 2011).
Count 1 will proceed against Larson and Gerst, Plaintiff’s medical providers who have
persisted in a course of ineffective treatment for his stomach pain and denied him adequate care
for his back and shoulder. See Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010). Additionally,
once Plaintiff was seen by an outside specialist for his stomach pain, the instructions of the
specialist were not followed. Accordingly, he has stated a claim for deliberate indifference against
Larson and Gerst.
Count 1 will also proceed against Morganthaler, Hvarre, and Issacs. Plaintiff claims that
he notified these Defendants on several occasions about the deficiencies in the medical care he
was receiving, but they failed to act and ensure that he received proper and timely treatment. See
Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015).

2

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Count 1 will also proceed against Wexford. Plaintiff claims that Wexford has practices and
policies that resulted in the delay and denial of care, such as guidelines that recommend that
medical staff maintain a “healthy amount of doubtful suspicion” about inmate complaints, using
in house treatment methods before sending an inmate out for specialty care no matter the
symptoms, and a medication refill policy that results in delays in obtaining refills and prescriptions.
These allegations are sufficient to state a claim. See, e.g., Woodward v. Corr. Med. Serv. of Ill.,
Inc., 368 F.3d 917, 927 (7th Cir. 2004).
MOTIONS FOR RECRUITMENT OF COUNSEL
Plaintiff has filed two motions seeking court recruited counsel (Doc. 3, 10), which are
DENIED. 3 Along with his motions, Plaintiff has included letters from three firms declining
representation. Accordingly, he appears to have made reasonable efforts to retain counsel on his
own. With respect to his ability to pursue this action pro se, Plaintiff expresses concern about his
ability to handle discovery, specifically collecting documents and taking depositions. He states
that this case involves complex medical issues that span over three years, and he will most likely
need medical experts. Nonetheless, the Court finds that Plaintiff can proceed pro se, at least for
now. Plaintiff’s pleadings demonstrate an ability to construct coherent sentences and relay
information to the Court. Discovery on the merits has not yet commenced, and Plaintiff appears
competent to try this matter without representation at this early stage in the case.
DISPOSITION
For the reasons states above, the Complaint survives preliminary review pursuant to
Section 1915A. COUNT 1 will proceed against Morganthaler, Hvarre, Wexford, Isaacs, Larson,
and Gerst. All claims against Akbright, Smith, and Jane Doe are DISMISSED without prejudice.

In evaluating Plaintiff’s motions, the Court applies the factors discussed in Pruitt v. Mote, 503 F.3d 647, 654 (7th
Cir. 2007) and related authority.

3

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The Clerk of Court is DIRECTED to terminate them as parties on the docket.
Because Plaintiff’s claims involve allegations regarding his medical care, the Clerk of
Court is DIRECTED to ENTER the standard qualified protective order pursuant to the Health
Insurance Portability and Accountability Act.
The Clerk of Court shall prepare for Morganthaler, Hvarre, Wexford, Isaacs, Larson,
and Gerst the following: (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. 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 the defendant to pay
the full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
If a defendant can no longer 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 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 file an appropriate responsive pleading to the Complaint
in a timely manner and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant
to Administrative Order No. 244, Defendants only need to respond to the issues stated in
this Merit Review Order.
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 14
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: February 6, 2024
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge

NOTICE TO PLAINTIFF
The Court will take the necessary steps to notify the appropriate defendants of your lawsuit
and serve them with a copy of your complaint. After service has been achieved, the defendants
will enter their appearance and file an Answer to the complaint. It will likely take at least 60 days
from the date of this Order to receive the defendants’ Answers, but it is entirely possible that it
will take 90 days or more. When all of the defendants have filed Answers, the Court will enter a
Scheduling Order containing important information on deadlines, discovery, and procedures.
Plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions,
to give the defendants notice and an opportunity to respond to those motions. Motions filed before
defendants’ counsel has filed an appearance will generally be denied as premature. Plaintiff need
not submit any evidence to the Court at his time, unless otherwise directed by the Court.

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