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McCoy v. Wexford Health Sources, Inc.

United States District Court, Seventh Circuit

January 27, 2014

KENDALE McCOY, Plaintiff,
WEXFORD HEALTH SOURCES, INC., et al., Defendants.


MILTON I. SHADUR, Senior District Judge.

If the harrowing story of total neglect by prison authorities presented by Stateville Correctional Center ("Stateville") inmate Kendale McCoy ("McCoy") is truthful - and there is nothing to suggest otherwise when it is measured against the "plausibility" yardstick prescribed by the Twombly-Iqbal canon[1] - this case provides a shocking example of deliberate indifference to serious medical needs that the Supreme Court initially held to be a constitutional violation in Estelle v. Gamble , 429 U.S. 97 (1976). Despite the constant repetition of that principle by federal courts at every level in the nearly four decades since Estelle, some state actors continue to throw every possible roadblock in the way in an effort to postpone the day of judgment for such meritorious claims or, even worse, to prevent that day from arriving altogether.

In this instance Wexford has the responsibility for providing medical care at Stateville. It has essentially succeeded an in-house regime that was a dismal failure - this Court learned in the course of a recent case that Dr. Partha Ghosh, who had headed up the medical team at Stateville, had then been targeted as a defendant in no fewer than 197 cases charging him with the extreme level of medical malpractice that comes under the Estelle rubric. This Court has attempted no such count as to Wexford, but what is certain is that Wexford and its people appear to have continued the Ghosh pattern of obstructionism toward this area of litigation. And regrettably, the counsel for Wexford and its people - though concededly owing their clients the duty of loyalty - have contributed toward the state actors' avoidance of their constitutional responsibilities by striving mightily to forestall, or to avoid altogether, a resolution of McCoy's claim on the merits.

This opinion will not rehearse the sorry course of conduct that defendants and their lawyers have engaged in toward that end. McCoy, who began this action pro se (as most prisoners do with their meritorious or nonmeritorious claims alike), was fortunate in that the luck of the random draw from this District Court's trial bar brought him an experienced litigator, partner in a major national law firm, as his designated counsel to represent him pro bono publico. And to date that counsel has fought McCoy's cause through the defendants' version of the "Stalingrad defense" famously practiced by the Russian army against the German army's attempted onslaught in World War II (for readers unfamiliar with that term, it refers to a pattern of (1) fighting to keep control of a street, then (2) if that proves unsuccessful, strategically retreating street by street in a kind of war of attrition).

Now three of the named defendants and their counsel have retreated one more street (to continue the Stalingrad-defense analogy) to advance a Rule 12(b)(6) motion seeking their dismissal from this action. Two of those defendants were the addressees of the letters attached to this opinion, while the third, Dr. Ronald Schaefer, is a Stateville staff doctor who treated McCoy and was told of the severe medical problems he continued to have, but was totally nonresponsive to McCoy's problems (see, e.g., FAC ΒΆΒΆ 15 and 16). One facet of that motion as to the first two movants is clearly correct - naming them as defendants in their official capacity is redundant where their principal, Wexford, has also been sued. To that extent, then, the motion is granted.

That leaves for consideration the individual liability vel non of the three individuals. On that score it may well be that fleshing out the case through discovery might establish a basis for the dismissal of one or more of them. But that is not at all necessarily the case - if for example Wexford Chairman Halloran knew about McCoy's complaints or, even lacking that, had responsibility for the constitutional deficiencies identified in the thoughtful memorandum filed by McCoy's able counsel in response to the current motion, or if Dr. Funk should have caused McCoy's detailed complaints to be looked into but did not, those things would arguably establish a viable Estelle v. Gamble claim. And the same is true as to Dr. Schaefer: Resolution of the claim against him is a factbound matter, not to be dealt with on paper at the motion stage.


This most recent motion (Dkt. 65) is denied, and the three movants are ordered to file their answers to the FAC on or before February 14, 2014. It is to be hoped that this is the last purely procedural roadblock to be encountered here, so that the case may move forward toward a resolution on the merits.

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