Dzbik v. Hughes et al

Filing 15

Order for Service of Process: Plaintiff may proceed on Claim 1 against Dr. Percy Myers and the Clerk of Court is DIRECTED to serve Myers consistent with this Order. By contrast, there is no sufficient claim against Wexford, so Wexford shall be dismissed without prejudice. The Clerk of Court is also DIRECTED to enter the standard HIPAA protective order. Signed by Magistrate Judge Gilbert C. Sison on 6/4/2024. (kgk)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WALDEMAR DZBIK,
M49560,
Plaintiff,
vs.
PERCY MYERS,
WEXFORD,
Defendants.

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Case No. 3:24-cv-00093-GCS

MEMORANDUM & ORDER
SISON, Magistrate Judge:
Plaintiff Waldemar Dzbik, an inmate of the Illinois Department of Corrections
(“IDOC”) currently detained at Centralia Correctional Center (“Centralia”), brings this
civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his
constitutional rights. (Doc. 1). The Court found his original complaint insufficient to state
a claim, and he has now filed a timely Amended Complaint. (Doc. 13). Plaintiff alleges
deliberate indifference to his ventral hernia.
The Amended Complaint (Doc. 13) is now before the Court for preliminary review
pursuant to 28 U.S.C. § 1915A.1 Under Section 1915A, the Court is required to screen
prisoner complaints to 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

The Court has jurisdiction to resolve Plaintiff’s motions and to screen his Complaint due
to his consent to the full jurisdiction of a magistrate judge (Doc. 7) and the limited consent to the
exercise of magistrate judge jurisdiction as set forth in the Memoranda of Understanding between
the IDOC, Wexford, and this Court.
1

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which relief may be granted, or asks for money damages from a defendant who by law
is immune from such relief must be dismissed. See 28 U.S.C. § 1915A(b). At this juncture,
the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez
v. Plymouth Ambulance Service, 577 F.3d 816, 821 (7th Cir. 2009).
THE COMPLAINT
Plaintiff alleges that he has a ventral hernia that causes him severe pain, even while
resting. (Doc. 13, p. 5). The only treatment he has received is 500mg of Tylenol to address
his pain. He alleges he has repeatedly sought care for his hernia to no avail. Historically,
in 2021 he had a CT scan and was referred for future treatment. In the amended complaint
and in attached grievance documentation, there are indications that Plaintiff was
supposed to have surgery at some point in 2021 or 2022, but the surgery never occurred.
(Doc. 13, p. 5, 10). Plaintiff alleges that in his repeated efforts to seek care, he has been
seen by Defendant Dr. Percy Myers, but Myers has refused to listen to what he has to say
about his hernia, and Myers has offered no options for care. (Doc. 13, p. 5). The grievance
documentation also suggests that in July of 2023, a grievance investigation concluded that
Plaintiff still had a need for care, and the grievance officer was informed that the
healthcare unit administrator was “trying to get the issue resolved.” (Doc. 13, p. 10).
Plaintiff also included limited medical records, one which indicates a 2022 referral for
surgery. (Doc. 13, p. 24).
Plaintiff seeks hernia surgery, and compensatory and punitive damages. (Doc. 13,
p. 8).

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Based on the allegations in the Amended Complaint, the Court designates the
following claim:
Claim 1:

Eighth Amendment deliberate indifference claim against
Dr. Myers for refusing to address or treat Plaintiff’s ventral
hernia.

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 the Twombly pleading standard. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that 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”).
PRELIMINARY DISMISSAL
Plaintiff identified Wexford in the case caption, but other than alleging that
Wexford employs Dr. Myers, he has not made any allegations about Wexford. As a
corporation, Plaintiff would need to allege that Wexford employed a custom, policy, or
practice that caused a violation of his constitutional rights. His pleading is insufficient to
establish any of these things, so Wexford is dismissed without prejudice.
DISCUSSION
An Eighth Amendment claim arising from the delay or denial of medical care
requires a two-part showing. A plaintiff must show that he had an objectively serious
medical need, and the defendants were deliberately indifferent to his need. See Brown v.
Osmundson, 38 F.4th 545, 550 (7th Cir. 2022). Deliberate indifference is a high bar; it
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requires a showing of something approaching total unconcern for the prisoner’s welfare
in the face of a serious risk. Id. Relevant evidence might include: the obviousness of the
risk, the defendant’s persistence in an ineffective course of treatment, proof that the
course of treatment radically departed from professional norms, or proof that an
inexplicable delay served no penological purpose. See Thomas v. Martija, 991 F.3d 763, 768
(7th Cir. 2021). With a claim of delay, a court considers the seriousness of the injury, the
length of the delay, and whether the delay made the injury worse. Id. at 769.
At this juncture, Plaintiff’s allegations against Dr. Myers are sufficient to proceed
under a theory of deliberate indifference to his medical needs concerning his ventral
hernia.
One further item is worth mentioning. At the outset of the case, Plaintiff moved
for recruited counsel on the premise that he spoke Polish and knew very little English.
(Doc. 3). The Court denied his motion for counsel because the case was still in its infancy
and simply required a basic explanation of the facts. Along with the Amended
Complaint, a fellow inmate submitted an affidavit indicating he provided Plaintiff with
one-time assistance drafting his amended pleading, but that he would not assist any
further, so he thought it best that the Court appoint counsel. (Doc. 13, p. 7). The fellow
inmate also submitted a letter on the same topic and suggested Plaintiff was being
prevented from accessing the Court. (Doc. 14). Although the language barrier and access
to the Court is important, the Court will not appoint counsel at this time because the case
still requires only the most basic and routine exchange of information that will be guided

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by court orders. If Plaintiff believes he still needs counsel, he should file a new motion
for counsel.
DISPOSITION
IT IS HEREBY ORDERED THAT Claim 1 of the Amended Complaint (Doc. 13)
survives against Defendant Dr. Percy Myers. By contrast, Plaintiff has failed to state a
claim against Wexford, and the Clerk of Court is DIRECTED to TERMINATE this party.
The Clerk of Court is DIRECTED to prepare for Defendant Dr. Percy Myers: (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 Amended Complaint (Doc. 13), and this Memorandum and Order to Defendants’
place of employment as identified by Plaintiff. If a Defendant fails to sign and return the
Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the
forms were sent, the Clerk shall take appropriate steps to effect formal service on
Defendant, and the Court will require Defendant to pay the full costs of formal service,
to the extent authorized by the Federal Rules of Civil Procedure.
If a Defendant cannot 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.

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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 Administrative Order No. 244, Defendants need only respond to the issues
stated in this Merits Review Order.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs,
regardless of whether his application to proceed in forma pauperis was granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk
of Court and each opposing party of any address changes; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later
than 14 days after a change of 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 failure to prosecute. See FED. R. CIV. PROC. 41(b).
The Clerk of Court is DIRECTED to enter the standard order under the Health
Insurance Portability and Accountability Act because it may involve the exchange of
medical records.
IT IS SO ORDERED.
Digitally signed
by Judge Sison
Date: 2024.06.04
11:22:43 -05'00'

DATED: June 4, 2024.

_____________________________
GILBERT C. SISON
United States Magistrate Judge

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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.

The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles
that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but
it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening
only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some
relief. At trial, he will need to prove by a preponderance of evidence that the facts alleged
actually occurred and that those facts satisfy the legal requirements for recovery. Trial is
the highest and most difficult of hurdles for any Plaintiff to clear.

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