Robinson v. Wexford Health Care et al

Filing 13

ORDER: As explained in this order, Plaintiff's complaint is insufficient to proceed for multiple reasons. Plaintiff shall have until December 15, 2023, to file an amended complaint, failing which this case may be dismissed for failure to prosecute or failure to state a claim. The Clerk's Office is DIRECTED to mail Plaintiff a civil rights template. Signed by Magistrate Judge Reona J. Daly on 11/14/2023. (kgk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GEORGE ROBINSON,
N52712,
Plaintiff,
vs.
WEXFORD HEALTH CARE,
JUANITA HARRIS,
ALLYSON FISCUS,
L. LIVINGSTON,
C. ANDREWS,
Defendants.

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Case No. 23-cv-2660-RJD

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
Plaintiff George Robinson, an inmate of the Illinois Department of Corrections (IDOC)
currently detained at Pinckneyville Correctional Center (Pinckneyville), brings this civil rights
action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights at
Lawrence Correctional Center (Lawrence).

Plaintiff alleges that on September 26, 2019,

Defendant Harris gave him the wrong prescription medication, and Harris and the remaining
defendants provided an inadequate response to the situation. Plaintiff acknowledges that he filed
a previous lawsuit about this issue, Robinson v. Harris, et al., 21-cv-344-MAB, which was
dismissed in June of 2023 for failure to exhaust administrative remedies.
Plaintiff’s Complaint (Doc. 1) is now before the Court 1 for preliminary review pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner complaints to

The Court has jurisdiction to resolve Plaintiff’s motions and to screen his Complaint in light of his consent to the
full jurisdiction of a magistrate judge and the Illinois Department of Corrections’ and Wexford’s limited consent to
the exercise of magistrate judge jurisdiction as set forth in the Memorandums of Understanding between the Illinois
Department of Corrections and Wexford and this Court.

1

filter out non-meritorious claims. See 28 U.S.C. § 1915A(a)-(b). Any portion of a 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 must be dismissed. 28
U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se complaint are to be
liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
THE COMPLAINT
Plaintiff alleges that on September 26, 2019, during medication rounds Defendant Harris
gave him someone else’s nerve medication instead of his Tramadol. (Doc. 1 at 10). Harris realized
the mistake and had another nurse check his vitals, but she failed to provide any other type of
monitoring and she did not document the incident. Defendant Fiscus checked Plaintiff’s vitals
after the incident, but she failed to recommend an observation period for side effects, she provided
no other treatment, and she did not document the incident. Plaintiff alleges that Wexford
Healthcare is Harris and Fiscus’s employer, and that Wexford failed to train them on what to do if
they administer an improper medication. He alleges the lack of training subjected him to an
atypical situation.
Plaintiff alleges that Defendant C. Andrews failed to follow § 504.830(e) of the Illinois
Administrative Code when processing two of his grievances about the incident. He alleges the
failure prevented him from properly exhausting these grievances. He also alleges that Defendant
L. Livingston provided a misleading response to a grievance when she indicated that he was seen
by healthcare staff on October 1, 2019. He claims this resulted in his grievance improperly being
denied as moot.

Plaintiff argues that he should be allowed to proceed on this complaint because his prior
lawsuit about this topic was dismissed in part for naming the wrong defendants, he has added a
new claim, and equitable tolling of the statute of limitations should be considered. (Doc. 1 at 9).
Based on the allegations in the Complaint, the Court will designate the following claims:
Count 1:

Eighth Amendment deliberate indifference claim against
Defendants Harris and Fiscus for their response after Plaintiff
was administered the wrong medication;

Count 2:

Monell claim against Wexford for failing to train Harris and
Fiscus about what to do in the event of a mis-administration of
medication;

Count 3:

Eighth Amendment claim against L. Livingston or C. Andrews
for their roles in processing Plaintiff’s grievances about the
medication issue.

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 claim that is mentioned in the Complaint
but not addressed in this Order is considered dismissed without prejudice as inadequately pled
under Twombly. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state
a claim upon which relief can be granted if it does not plead “enough facts to state a claim that is
plausible on its face”).
ANALYSIS
Plaintiff’s allegations against Fiscus and Harris appear identical to those presented in his
prior case, Robinson v. Harris, et al., 21-cv-344-MAB. Plaintiff alleges that his prior case was
dismissed in part for naming the wrong defendants, and in part for failure to exhaust administrative
remedies. The Court reviewed the publicly available docket sheet, which included an order on the
exhaustion of administrative remedies. On June 26, 2023, Plaintiff’s Eighth Amendment claim
against Harris and Fiscus was dismissed without prejudice for failure to exhaust administrative

remedies. Robinson v. Harris, et al., 21-cv-344-MAB (Docket entry 46, June 26, 2023, Order).
Plaintiff does not indicate that anything has changed about his claim against these parties from the
time of that ruling until he filed the present complaint on August 1, 2023.
On an unchanged record, Plaintiff’s re-presentation of the identical claims against Harris
and Fiscus is barred by collateral estoppel. “Under the doctrine of collateral estoppel (also known
as issue preclusion), once an issue is actually and necessarily determined by a court of competent
jurisdiction, that determination is conclusive in subsequent suits based on a different cause of
action involving a party to the prior litigation.” See, Our Country Home Enters., Inc. v. Comm'r of
Internal Revenue, 855 F.3d 773, 782 (7th Cir. 2017) (internal citations omitted). Collateral
estoppel constraints, as a matter of federal law, apply only when “(1) the issue sought to be
precluded [is] the same as that involved in the prior litigation, (2) the issue must have been actually
litigated, (3) the determination of the issue must have been essential to the final judgment, and (4)
the party against whom estoppel is invoked must [have been] fully represented in the prior action.”
Grede v. FCStone, LLC, 867 F.3d 767, 776 (7th Cir. 2017) (quoting Matrix IV, Inc. v. Am. Nat'l
Bank & Trust Co. of Chi., 649 F.3d 539, 547 (7th Cir. 2011)) (citation omitted).
Courts in the Seventh Circuit have applied collateral estoppel to the re-litigation of claims
that were previously determined to not be properly exhausted. See, e.g., Medford v. Smith, 2019
WL 6531125 at *4 (S.D. Ill. 2019) (applying collateral estoppel to the second of two parallel cases
where in the first case a District Judge had already determined that the inmate had not filed any
adequate grievances at the jail about any issue); Shaffer v. Kraemer, 2021 WL 5113986 at * 3
(S.D. Ind. Nov. 3, 2021) (finding that an inmate’s claims in a second lawsuit were barred by
collateral estoppel where his previous case was dismissed for unsuccessful completion of
administrative remedies, and he had no evidence he made additional efforts to exhaust his claims

before filing a second lawsuit on the same issue that named two additional officers as defendants).
The Seventh Circuit also found in Jackson v. Murphy, 468 Fed. App’x 616, 619 (7th Cir. 2012)
that a court did not abuse its discretion by sua sponte applying collateral estoppel on the issue of
exhaustion where the repetition of the same affirmative defense was easy to anticipate, the parties
were the same, and a final judgment was already reached on the issue.
Plaintiff pointed this Court directly to the dismissal of his prior lawsuit in the filing of the
present complaint. He freely admitted that his previous case was dismissed for failure to exhaust
administrative remedies. Plaintiff does not provide any facts or allegations that anything has
changed about the exhaustion of his claim against Harris and Fiscus from the June 26, 2023,
dismissal for failure to exhaust administrative remedies until his filing of this lawsuit. While there
certainly could be scenarios where an inmate’s case is dismissed for failure to exhaust, and he later
returns to court with properly exhausted claims, this is not such a case. See e.g., Robinson v.
Sherrod, 631 F.3d 839, 843 (7th Cir. 2011) (finding that the dismissal of a habeas petition as the
wrong procedural vehicle for a conditions of confinement claim would not bar a later Bivens
lawsuit about the same issue because collateral estoppel would only bar litigation of something on
the same grounds that the habeas petition was already dismissed).
In the June 26 Order in the previous case, the Court determined that Plaintiff had filed two
grievances that were potentially relevant to his claim against Harris and Fiscus, but he failed to
properly exhaust either of those grievances because after getting the counselor’s response he sent
them straight to the ARB. Robinson v. Harris, Case No. 21-cv-344 (Doc. 46 at 8-11). Plaintiff
resubmitted those grievances at his prison once they were returned from the ARB, but there was
no evidence he ever re-submitted them to the ARB. Id. Based on these findings, which appear
unchanged, Plaintiff still has the same exhaustion problem in this case that he faced in the last

case. It would be a waste of judicial resources, and an undue burden on the defendants to require
re-litigation of this issue in this lawsuit, filed less than two months after the dismissal of the
previous suit. Therefore, the Court finds that collateral estoppel bars Plaintiff from re-litigating
Claim 1 against Defendants Fiscus and Harris, and this claim is dismissed as frivolous.
Next, Plaintiff attempts to add a claim against Wexford for failing to train Fiscus and
Harris about how to respond if they accidentally give a patient the wrong prescription medication.
This claim lacks any factual elaboration that makes it obvious that Wexford has some kind of lack
of policy or training. Instead, Plaintiff makes a threadbare assertion that Wexford should be liable
for a failure to train because of the actions of two defendants on a single occasion.
Wexford acts under color of state law by contracting to perform a government function,
i.e., providing medical care to correctional facilities, so it is treated as a government entity for
purposes of Section 1983 claims. See Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 fn.6
(7th Cir. 2002); but see Shields v. Illinois Department of Correction, 746 F.3d 782, 790 (7th Cir.
2014) (finding “substantial grounds to question the extension of the Monell holding for
municipalities to private corporations”). Defendants, including private corporations, are not
vicariously liable under 42 U.S.C.§ 1983 for the alleged misdeeds of their employees. See Colbert
v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017); Sanville v. McCaughtry, 266 F.3d 724, 734
(7th Cir. 2001). Therefore, to state a cognizable deliberate indifference claim against Wexford,
the plaintiff must allege that he suffered a constitutional deprivation as the result of an express
policy or custom of Wexford. A failure to train may rise to the level of an official government
policy under section 1983, Connick v. Thompson, 563 U.S. 51 (2011), but there must be some
evidence that Wexford knew of a risk due to a lack of training and failed to respond to it, see, e.g.,
Chatman v. Davis, 839 F.3d 679, 685-86 (7th Cir. 2016) (finding that there was no evidence that

a nurse’s lack of knowledge about asthma attack responses was due to a practice or custom by
Wexford).
Here, Plaintiff’s allegation that Wexford failed to train Fiscus or Harris and thus caused his
injury is threadbare. He does not explain what policy, custom, or practice gave rise to the lack of
training, nor does explain how Wexford might have known of the risk presented by any such issue.
Instead, his claim reads like an attempt to hold Wexford vicariously liable for Fiscus and Harris’s
actions, and respondeat superior liability is not a path to recovery against Wexford.
Additionally, the Court notes that this claim appears to be time-barred. The applicable
statute of limitations period for actions brought pursuant to 42 U.S.C. § 1983 is a state’s period for
personal injury torts. See Kalimara v. Ill. Dept. of Corrections, 879 F.2d 276, 277 (7th Cir. 1989).
In Illinois, where the events in Plaintiff’s complaint occurred, that period is two years. See Woods
v. Illinois Dept. of Children and Family Svcs., 710 F.3d 762, 765-766 (7th Cir. 2013); 735 ILCS §
5/13-202. Illinois recognizes equitable tolling of the two-year period for an inmate to pursue
administrative exhaustion of a claim at the institutional level. See Terry v. Spencer, 888 F.3d 890,
894 (7th Cir. 2015). A court may sua sponte dismiss a case at § 1915A review if the applicability
of the statute of limitations is “so plain from the language of the complaint…that it renders the suit
frivolous.” Id. at 894; Dickens v. Illinois, 753 Fed. App’x 390 (7th Cir. 2018) (a court may dismiss
a complaint upon screening if it is clearly barred by the statute of limitations). Plaintiff had the
improper dose of medication on September 26, 2019, but he did not file this claim against Wexford
until August 1, 2023. 2 He gives no explanation for the long lapse from his alleged injury to the

The Court notes that Plaintiff also tried to include the failure-to-train claim against Wexford in his prior litigation,
via an April 12, 2022, Amended Complaint, but the claim was deemed insufficiently pled on June 7, 2022, by District
Judge Stephen McGlynn. Robinson v. Harris, et al., 21-cv-344 (June 7, 2022 Order, docket entry 16).
2

filing of this claim, almost four years later. Without a plausible explanation for the four-year delay
from Plaintiff’s injury to his presentation of this claim against Wexford, the claim is time-barred.
Finally, Plaintiff alleges that C. Andrews failed to follow § 504.830(e) of the Illinois
Administrative Code when reviewing his grievances about this issue, and L. Livingston included
incorrect or misleading information in a grievance response about the same. A violation of a prison
policy or state law does not give rise to a § 1983 claim, so the allegation against C. Andrews is
insufficient to state a claim. Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (§ 1983 protects
plaintiffs from constitutional violations, not violations of state laws or departmental regulations).
What is more, an error with the processing of a grievance does not give rise to a § 1983 claim
where there is no allegation that the official who processed the grievance caused or participated in
the underlying constitutional violation. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011)
(mishandling of grievances by those who did not cause or participate in a constitutional violation
states no claim). Thus, Plaintiff has failed to state a valid claim against Andrews or Livingston.
And, even if there was some potential theory against these two, such a claim would also be subject
to the statute of limitations as described in relation to Wexford.
One final issue requires attention. Plaintiff alleges that his complaint should get the benefit
of equitable tolling—but he does not explain how or why tolling might apply to his claims. In
general, “a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that
he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Those circumstances must be both
extraordinary and beyond the litigant's control. Menominee Indian Tribe of Wisconsin v. U.S., 577
U.S. 250, 257 (2016). Plaintiff’s mention of equitable tolling is threadbare, and he has not
provided any facts that even remotely suggest he was somehow prevented from filing his claims

prior to August of 2023. Threadbare legal assertions are not sufficient to carry the day where there
is no plausible suggestion that the facts might support the identified theory. Here, it simply seems
that Plaintiff was disappointed after his case was dismissed for failure to exhaust administrative
remedies, so he has tried to revive his suit by adding claims. This effort falls flat. Accordingly,
equitable tolling does not save the case.
For all of the foregoing reasons, the Court finds that Plaintiff has failed to state a valid,
timely, or properly exhausted claim in relation to his single dose of improper medication in
September of 2019. The Court gives leave to file amended pleadings freely, but it does not need
to give leave or “solicit more litigation spontaneously” where it is not apparent what claim a
plaintiff might substitute for those that already failed. See e.g. Burks v. Raemisch, 555 F.3d 592,
596 (7th Cir. 2009); Always Towing & Recovery, Inc. v. City of Milwaukee, 2 F.4th 695, 707 (7th
Cir. 2021) (courts may deny leave to amend if an amendment would be futile). Here, Plaintiff will
be given an opportunity to amend his complaint, because he is a pro se litigant and he is afforded
broad deference when attempting to present his claims. However, if he is convinced that he cannot
file a valid claim based on the issues identified in this Order, he may also opt to voluntarily dismiss
this case to avoid incurring a strike under 28 U.S.C. § 1915(g). 3
An amended complaint will completely replace the earlier complaints. See Flannery v.
Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004). Failure to submit an
amended complaint on time could result in the dismissal of this entire lawsuit for failure to state a

3
28 U.S.C. § 1915(g) provides that “[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.”

claim or failure to prosecute. FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1056-57 (7th
Cir. 1997) (dismissal is allowed for failure to comply with a court order); 28 U.S.C. § 1915A.
DISPOSITION
Plaintiff’s complaint is dismissed without prejudice for the reasons identified above, which
include collateral estoppel, failure to state a claim, and the applicable statute of limitations.
Plaintiff shall have 30 days to file an amended complaint, or to move to withdraw this lawsuit,
failing which this case may be dismissed.
IT IS SO ORDERED.
Dated: November 14, 2023

/s/ Reona J. Daly
Reona J. Daly
United States Magistrate Judge