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John E. Taylor, Jr. (R66376 v. Wexford Health Services

January 26, 2012

JOHN E. TAYLOR, JR. (R66376)
v.
WEXFORD HEALTH SERVICES, INC., ET AL.



Name of Assigned Judge Amy J. St. Eve Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted. The Court authorizes and orders Plaintiff's trust fund custodian to deduct $21.16 from his account, and to continue making monthly deductions in accordance with this order. The clerk shall send a copy of this order to the Supervisor of Inmate Trust Fund Accounts at the Stateville Correctional Center. Plaintiff's motion for a copy of the complaint (Dkt. No. 4), is denied. Plaintiff may not bring an official capacity claim against Illinois Department of Correction employees for monetary relief claims. He may bring his injunctive relief claim to the extent that it permissible under Ex Parte Young, 209 U.S. 123 (1908). Plaintiff may proceed with an official capacity claim for monetary and injunctive relief against Wexford Health Services. He may also bring his individual capacity claims against the medical Defendants. Defendants Kevin Halloran, Allan Karraker, Cynthia Garcia, Antony Ramos, and Charles Fasano are dismissed. The current Warden of the Stateville Correctional Center, Marcus Hardy, is added in his official capacity for purposes of Ex Parte Young. The Clerk shall issue summonses for service on Defendants Warden Hardy, Wexford Health Services, Inc., Olson, Brown, Martin, Beattie, Rossiter, and Kris 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 all Defendants. The clerk will provide Plaintiff with an amended civil rights complaint form and instructions along with a copy of this order

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

STATEMENT

Pro se Plaintiff John E. Taylor, Jr, a prisoner at the Stateville Correctional Center, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that he was denied the prescription medication Elavil at various times during his incarceration. Pending before the Court are Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 3), and complaint for an initial screening pursuant to 28 U.S.C. § 1915A (Dkt. No. 1), and motion for a copy of the complaint. (Dkt. No. 4).

Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted. Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is assessed an initial partial filing fee of $21.16. The trust fund officer at Plaintiff's place of incarceration is directed to collect, when funds exist, 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 authorized and ordered 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 collected from Plaintiff's trust fund account 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. The inmate trust account office shall notify transferee authorities of any outstanding balance in the event of Plaintiff's transfer to another correctional facility.

Turning to the initial review under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a suit brought in forma pauperis at any time if the Court determines that it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against Defendants who are immune from such relief. The following facts, drawn from Plaintiff's complaint (Dkt. No. 1), are accepted as true and all reasonable inferences are made in the light most favorable to Plaintiff. Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010) (citing Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001)). This Court also "construe[s] pro se complaints liberally and hold[s] them to a less stringent standard than formal pleadings drafted by lawyers." Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Erickson v. Pardus, 551 U.S 89, 94 (2007) (per curiam); Obriecht v. Raemisch, 417 F.3d 489, 492 n.2 (7th Cir. 2008)).

"To satisfy the notice-pleading standard, a complaint must provide a 'short and plain statement of the claim showing that the pleader is entitled to relief,' which is sufficient to provide Defendant with 'fair notice' of the claim and its basis." Bridges, 557 F.3d at 545 (quoting Erickson, 551 U.S at 89). "'[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "The complaint must actually suggest that Plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level." Bridges, 557 F.3d at 546 (internal quotation marks and citations omitted) (emphasis in original).

On October 19, 2009, following an MRI examination, a neurologist at the University of Illinois Hospital in Chicago prescribed Elavil for Plaintiff's chronic neck, shoulder, back and hip pain. Elavil is an antidepressant but pain relief is an off label use of the drug. Amitriptyline, Wikipedia Entry, available at http://en.wikipedia.org/wiki/Amitriptyline (last visited on January 23, 2012). Plaintiff alleges that the Elavil helps his pain and allows him to sleep through the night.

Defendant Wexford Health Sources contracts with the State of Illinois to provide medical services at Stateville. Plaintiff immediately informed the doctors and nurses at Stateville of his new prescription for Elavil upon his return from Chicago in October 2009. The medical staff at Stateville put in the request for Elavil, but Plaintiff had to wait until mid February 2010 to receive the medication.

Plaintiff blames Wexford for this initial three and half month delay. Elavil is a non formulary medication under Wexford's policies governing Stateville. Consequently, the Stateville medical staff had to submit Plaintiff's prescription to Wexford staff at their headquarters in Pennsylvania for review and approval. This cost savings practice by Wexford displeases Plaintiff who points out that he already had the approval of the neurologist at the University of Illinois Hospital and the Wexford doctor at Stateville. The Stateville medical staff did provide Plaintiff other medication to address his pain before receiving the Elavil.

In addition to his claim regarding the initial delay in receiving Elavil at the beginning of 2010, Plaintiff also alleges that he had disruptions in receiving the drug in 2010. He states that he did not receive it on February 23, 2010 through February 28, 2010, March 1, 2010 through March 24, 2010, May 15 and 16, 2010, May 22, 2010 through May 31, 2010, June 1, 2010 through June 5, 2010, July 7, 2010, November 28, 2010 through November 30, 2010, January 30 and 31, 2011, and March 16, 2011. Plaintiff believes that he did not receive his medications at times because nurses at Stateville failed to deliver his medication or complete necessary forms, at other times the pharmacy at Stateville failed to keep an appropriate amount on site, and other times the pharmacy could not reorder due to Wexford's cost saving policy that delayed reordering. Plaintiff alleges that he complained about the original delay to get the Elavil as well as these disruptions through in person communications with doctors, nurses and correctional officials at Stateville, letters to Wexford executives, and written grievances. He names as Defendants Wexford, and its executives, the Stateville nurses (along with their supervisors), medical technicians and the pharmacist involved in his care, and his grievance counselor, warden and regional IDOC health official. Plaintiff believes that each Defendant is individually involved with the alleged constitutional violation because they either denied him his prescribed Elavil or turned a blind eye to his numerous requests regarding the denial of Elavil. He also sues all Defendants in their official capacity. He seeks monetary relief for his past injuries and injunctive relief ensuring that his medication is provided in a timely fashion.

Prisoners have a constitutional right to a minimal level of medical care. Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006)). A deliberate indifference to an objectively serious medical need claim requires: (1) an objectively serious medical need; and (2) Defendants were ...


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