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Randy Liebich (#R-34940 v. Warden Marcus Hardy

United States District Court, Northern District of Illinois


August 22, 2011

RANDY LIEBICH (#R-34940)
v.
WARDEN MARCUS HARDY, ET AL.

Name of Assigned Judge Sitting Judge if Other or Magistrate Judge ROBERT W. GETTLEMAN than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT:

Plaintiff's motion for leave to proceed in forma pauperis [#3] is granted. The Court orders the trust fund officer at Plaintiff's place of incarceration to deduct $18.38 from Plaintiff's account for payment to the Clerk of Court as an initial partial filing fee, and to continue making monthly deductions in accordance with this order. The Clerk shall send a copy of this order to the trust fund officer at the Stateville Correctional Center. The complaint is dismissed on initial review as to Defendants Hardy and Wexford pursuant to 28 U.S.C. § 1915A. The Clerk is directed to issue summonses for service on Defendants Ghosh, Zhang, and Schaefer by the U.S. Marshal. The Clerk is further directed to send Plaintiff a Magistrate Judge Consent Form along with a copy of this order. Plaintiff's motion for appointment of counsel [#4] is granted. April R. Walkup / Hall, Prangle & Schoonveld / 200 South Wacker Drive, 33rd Floor / Chicago, Illinois 60606 (312) 345-9600 is appointed to represent Plaintiff in accordance with counsel's trial bar obligations under the District Court's Local Rule 83.37 (N.D. Ill.). The Marshal is directed to follow the special service instructions set forth in this order.

O [For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff, a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendants, administrative officials and health care providers at the Stateville Correctional Center, have violated Plaintiff's constitutional rights by acting with deliberate indifference to his serious medical needs. More specifically, Plaintiff alleges that Defendants have denied him adequate care and treatment for health issues relating to his kidneys.

Plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is assessed an initial partial filing fee of $18.38. The trust fund officer at Plaintiff's place of incarceration is authorized and ordered to collect the partial filing fee from Plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, Plaintiff's trust fund officer is directed to collect monthly payments from Plaintiff's trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier's Desk, 20th Floor, and shall clearly identify Plaintiff's name and this case number. This payment obligation will follow Plaintiff wherever he may be transferred.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Here, accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against prison health care providers. Correctional officials and health care providers may not act with deliberate indifference to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). The fact that a prisoner received some medical treatment does not necessarily defeat his claim; deliberate indifference to a serious medical need can be manifested by "blatantly inappropriate" treatment, Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (emphasis in original), or by "woefully inadequate action," as well as by no action at all. Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 1999).

It should be noted that neither medical malpractice nor a mere disagreement with a doctor's medical judgment amounts to deliberate indifference. Estelle, 429 U.S. at 106; Greeno, 414 F.3d at 653. Nevertheless, Defendants Ghosh, Zhang, and Schaefer must respond to Plaintiff's allegations. Plaintiff should attempt to identify the fourth, "John Doe" physician as soon as feasible in order to meet Illinois' two-year statute of limitations. See, e.g., Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008); 735 ILCS § 5/13-202; Worthington v. Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993) (John Doe defendants generally cannot be replaced by named defendants after the statute of limitations has expired).

However, the complaint is dismissed on initial review as to Warden Hardy and Wexford Health Sources, Inc. The doctrine of respondeat superior (blanket supervisory liability) does not apply to actions filed under 42 U.S.C. § 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Section 1983 does not create collective or vicarious responsibility. Id. To be held liable under 42 U.S.C. § 1983, supervisors "must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see." T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (quoting Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). In short, some causal connection or affirmative link between the action complained about and the official sued is necessary for § 1983 recovery. Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003).

The Court recognizes that a supervisory official may learn of a constitutional violation by way of a grievance, and may become personally involved by ignoring such grievances. See Santiago v. Walls, 599 F.3d 749, 758-59 (7th Cir. 2010); see also Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). But in the case at bar, Plaintiff is being seen regularly by health care professionals, even though the care he has received is not to his satisfaction. The complaint and attachments document regular consultations with the prison's health care unit.

Plaintiff therefore has no cause of action against administrative officials, who may reasonably rely on the medical experts treating Plaintiff.

A warden is shielded from liability where, as here, a plaintiff is receiving ongoing care from health care professionals. See, e.g., Johnson v. Snyder, 444 F.3d 579, 586 (7th Cir. 2006) (fact that plaintiff's medical needs were being addressed by the medical staff insulated the warden from liability); contrast Reed v. McBride, 178 F.3d 849, 854-56 (7th Cir. 1999) (warden was required to act where officials allegedly denied an inmate life-sustaining medication and food). "The Governor, and for that matter the Superintendent of Prisons and the Warden of each prison, is entitled to relegate to the prison's medical staff the provision of good medical care." Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Because Plaintiff is receiving ongoing treatment from medical professionals, he has no claim against Defendant Hardy for failing to second-guess the medical staff.

Similarly, Plaintiff cannot sue Wexford for the purportedly deficient care of its employees. "A 'private corporation is not vicariously liable under § 1983 for its employees' deprivations of others' civil rights.' " Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 (7th Cir. 2002), quoting Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982). In analyzing a section 1983 claim against a private corporation, the court uses the same principles that would be applied in examining claims against a municipality. Brown v. Ghosh, No. 09 C 2542, 2010 WL 3893939, *8 (N.D. Ill. Sep. 28, 2010) (Feinerman, J.), citing Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th Cir. 2009).

An inmate bringing a claim against a corporate entity for a violation of his constitutional rights must show that the corporation supports a "policy that sanctions the maintenance of prison conditions that infringe upon the constitutional rights of the prisoners." Brown, 2010 WL 3893939, at *8, quoting Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004) (in turn quoting Estate of Novack ex rel. v. Cnty. of Wood, 226 F.3d 525, 530 (7th Cir. 2000)); see also Estate of Novack ex. rel. v. County of Wood, 226 F.3d 525, 530 (7th Cir. 2000). Because liability is not premised upon the theory of vicarious liability, the corporate policy "must be the 'direct cause' or 'moving force' behind the constitutional violation." Ibid. In the case at bar, there is no suggestion that a corporate custom, practice or policy underlies the challenged medical treatment. Consequently Hardy and Wexford are dismissed as Defendants on initial review.

The Clerk shall issue summonses forthwith and send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order.

The United States Marshals Service is appointed to serve Defendants Ghosh, Zhang, and Schaefer. Any service forms necessary for Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendants with process. The U.S. Marshal is directed to make all reasonable efforts to serve Defendants. As Ghosh and Zhang are now retired, the Marshal should contact Richard A. Tjepkema (Charysh & Schroeder, Ltd.), (312) 372-8338 to make service arrangements for those individuals. The Marshal is authorized to mail a request for waiver of service to Defendants in the manner prescribed by Fed. R. Civ. P. 4(d)(2) before attempting personal service.

Finally, Plaintiff's motion for appointment of counsel is granted. April Renee Walkup / Hall, Prangle & Schoonveld / 200 South Wacker Drive, 33rd Floor / Chicago, Illinois 60606 (312) 345-9600 is appointed to represent Plaintiff in accordance with counsel's trial bar obligations under the District Court's Local Rule 83.37 (N.D. Ill.).

20110822

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