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Gevas v. R. Shearing, Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

April 9, 2014

DAVID C. GEVAS, #B-41175, Plaintiff,
v.
R. SHEARING, WEXFORD HEALTH SOURCES, INC. NURSE BUTLER, RONALD SKIDMORE, MS. MALLEY, ASST. WARDEN BUTLER, and WARDEN HARRINGTON, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

Plaintiff, currently incarcerated at Stateville Correctional Center ("Stateville"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a life sentence. His claims arose in August and September 2013, while he was temporarily confined at Menard Correctional Center ("Menard") on a writ to appear in this Court for trial of another civil rights case. Plaintiff claims that Defendants refused to supply him with his prescribed medication and denied him access to a doctor over a two-week period.

More specifically, Plaintiff claims that he arrived at Menard on August 21, 2013, and was initially interviewed by Defendant Nurse Butler regarding his prescribed medications (Doc. 1, p. 4). He informed Defendant Nurse Butler that he had prescriptions for Gabapentin for chronic pain in his lower left leg; Ibuprofen for chronic left shoulder pain; Tamsulosin for an enlarged prostate and urination problems; multi-purpose solution for his soft contact lenses; Blink lubricating eye drops to allow him to wear the contact lenses for the required amount of time; a contact lens storage case; as well as for Depakote, Remeron, and Benadryl (Doc. 1, pp. 4-5). His Stateville medical records documenting these prescriptions had been sent to Menard.

After Plaintiff was assigned to his Menard cell, Defendant Nurse Butler administered his prescribed Depakote, Remeron, and Benadryl. Plaintiff questioned Defendant Butler about the remaining medications. Defendant Nurse Butler responded that when a prisoner is on a temporary transfer, Defendant Medical Director Shearing's policy is to discontinue medications that were prescribed at another prison, in order to save money - particularly with non-formulary prescriptions such as Plaintiff's. Plaintiff requested to be examined by a Menard doctor, but Defendant Nurse Butler refused.

Between August 21 and September 4, 2013, Plaintiff was not examined by a doctor, and was denied his prescribed Gabapentin, Ibuprofen, Tamsulosin, multi-purpose contact solution, Blink eye drops, and contact lens case. As a result, he suffered from severe pain in his leg and shoulder; nausea, vomiting, and muscle jerking; had insomnia and woke 3-8 times per night to urinate; urinated on himself; and had headaches and was unable to see because he could not wear his contact lenses (Doc. 1, p. 6). He asserts that he was denied medications so that Defendant Wexford Health Sources, Inc. ("Wexford") could save money, with a percentage of the money saved going to Defendant Shearing. Defendant Shearing is employed by Defendant Wexford.

Plaintiff made verbal and written requests to see a doctor for his severe pain, prostate and urination problems, and vision problems. Defendant Nurse Butler denied these requests. On August 24, 2013, Defendant Skidmore (a nurse) assessed Plaintiff's leg and shoulder pain, but refused to allow Plaintiff to see a doctor for the remainder of his stay. Defendant Skidmore also told Plaintiff of Defendant Shearing's practice and policy to discontinue prescribed medications for prisoners on a temporary transfer writ (Doc. 1, p. 8).

From August 22 to August 29, 2013, Plaintiff wrote requests to Defendants Malley (Health Care Unit Administrator), Assistant Warden Butler, and Warden Harrington, asking for his prescribed medication and for access to a doctor. He filed three emergency grievances over this matter, on August 23, 25, and 29, 2013, directed to Defendants Harrington and Assistant Warden Butler. He never received a response to any of these missives. When Plaintiff returned to Stateville, he received all the prescribed medications that he had been denied while at Menard (Doc. 1, p. 11).

Plaintiff asserts that Defendants Malley, Assistant Warden Butler, and Harrington have deliberately refused to enforce the contract with Defendant Wexford for the provision of medical care to Menard inmates, allowing Defendant Wexford to cut costs by delaying and denying care. Further, Defendant Wexford has been on notice of its improper actions since Plaintiff filed an earlier suit over similar problems, Gevas v. Wexford, Case No. 12-c-1297 (N.D. Ill.), but has refused to alter its behavior. Plaintiff claims Defendant Wexford has denied him medical care in retaliation for filing the earlier suit.

Based on these facts, Plaintiff asserts constitutional claims of deliberate indifference to his medical needs, denial of equal protection, and retaliation. In addition, he brings state law claims of negligence against Defendants Malley, Assistant Warden Butler, and Harrington, and of medical negligence and medical malpractice, presumably against the Menard medical provider Defendants (Doc. 1, pp. 12-13). He seeks damages, declaratory, and injunctive relief.

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated the following colorable federal causes of action, which shall receive further review:

Count 1: Defendants Nurse Butler, Skidmore, Malley, Shearing, Assistant Warden Butler, and Harrington were deliberately indifferent to Plaintiff's medical needs when they refused to provide him with previously-prescribed medications and denied him access to a doctor, causing him to suffer pain and physical discomfort, in violation of the Eighth Amendment;
Count 2: Defendants Nurse Butler, Skidmore, Malley, Shearing, Assistant Warden Butler, and Harrington violated Plaintiff's right to equal protection when they refused to provide him with prescription medications because of his status as a prisoner on temporary transfer to ...

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