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Barrow v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

August 28, 2014

RONALD BARROW # N-52087, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., , Defendants.

MEMORANDUM AND ORDER

NANCY J. ROSENSTENGEL, District Judge.

Before this Court for consideration is Plaintiff Ronald Barrow's first amended complaint (Doc. 17). The Court granted Plaintiff leave to file an amended complaint on July 21, 2014, when it dismissed his original 461-page submission for violating Rule 8(a) of the Federal Rules of Civil Procedure (Doc. 12). The amended complaint, although reduced from 111 pages to 86 pages in length, fails to cure the deficiencies in the original complaint. The Court will address those problems in a separate order at a later date.

For now, the Court focuses on Plaintiff's claim that he is suffering from progressive vision loss in both eyes. That claim is buried in the 360-paragraph amended complaint. The allegations offered in support of the claim are set forth in Paragraphs 114-182 and 292-310 of the amended complaint (Doc. 17-1, pp. 16-27; Doc. 17-2, pp. 15-18). These allegations give rise to Plaintiff's request for a temporary restraining order to "remove scar tissue in [Plaintiff's] right eye and upon healing, immediately remove [a] cataract in [his] left eye" (Doc. 17-2, p. 32). Plaintiff has also filed a motion seeking leave to file a second motion for temporary restraining order, in connection with this claim (Doc. 18).[1] Leave shall be granted. Further, so that the issue of Plaintiff's vision loss can be dealt with more effectively and expeditiously, the Court will exercise its inherent authority to manage its cases by severing this claim into a separate action, as discussed in more detail below. See FED. R. CIV. P. 21; see also Thompson v. Boggs, 33 F.3d 847, 858 (7th Cir. 1994); Intercon Research Assoc. Ltd. v. Dresser Industries, 696 F.2d 53, 56 (7th Cir. 1982) (discussing the broad discretion of a trial judge to determine when joinder or severance is appropriate).

The Amended Complaint

Although Plaintiff complains of progressive vision loss in both eyes dating back to 2006, his claim focuses on the allegedly inadequate eye care he has received since 2012 at Menard Correctional Center ("Menard") (Doc. 17-1, pp. 16-27; Doc. 17-2, pp. 15-18). According to the amended complaint, Plaintiff suffered from a detached retina in his right eye in January 2012 and a torn retina in his left eye in August 2012 (Doc. 17-1, pp. 17, 19). The treatment plan for these conditions allegedly consists of three phases (Doc. 17-1, p. 17). The first involves repair of the retina. The second involves the removal of cataracts. The third involves the removal of scar tissue. These latter two procedures are collectively referred to as "removal procedures." All three phases of treatment are allegedly necessary to restore vision, to the extent that it is possible to do so.

Plaintiff's problems became apparent when "floaters" obscured his vision on two separate occasions in 2012 (Doc. 17-1, pp. 16, 18). Each time, Plaintiff notified Defendant Johnson of his symptoms, but no action was taken to address the condition. Plaintiff lost vision in his right eye three weeks after meeting with Defendant Johnson to discuss a floater in January 2012, and he was diagnosed with a detached retina on February 23, 2012. Plaintiff was diagnosed with a torn left retina on August 1, 2012, one week after complaining to Defendant Johnson about two floaters in his left eye (Doc. 17-1, p. 19).

It was Defendant Lochherd who diagnosed Plaintiff with a detached right retina on February 23, 2012, and referred him to an outside specialist, Dr. Ahmed, [2]for corrective surgery on February 27, 2012 (Doc. 17-1, p. 17). Dr. Ahmed developed Plaintiff's treatment plan and repeatedly emphasized the importance of completing all three phases of treatment.

Although Defendants Johnson and Lochherd issued referrals for the removal procedures in March 2012, Wexford Health Sources, Inc. ("Wexford") would not authorize them (Doc. 17-1, p. 18). According to the amended complaint, Wexford's treatment decisions were based on two policies, i.e., one that elevates "cost over care" and a related one that denies treatment to any prisoner with "one good eye." Because Plaintiff still had vision in his left eye at the time he was referred for the removal procedures to his right eye, Wexford denied the referrals.

By late July 2012, Plaintiff began seeing two floaters in his left eye (Doc. 17-1, p. 19). He informed Defendant Johnson about them in writing on July 24, 2012, but Defendant Johnson failed to respond. At an appointment with Dr. Ahmed on August 1, 2012, Plaintiff was diagnosed with a torn retina and immediately treated. Dr. Ahmed again emphasized the importance of the removal procedures at this and a subsequent appointment in October 2012. Defendant Lochherd submitted another referral for the removal procedures in October 2012, but Defendants Shearing and Baker denied the referrals pursuant to Wexford's policies (Doc. 17-1, p. 20). Plaintiff nevertheless requested treatment by regularly writing to Defendants Johnson, Lochherd, Shearing, Trost, and Walls, without results.

By December 26, 2013, Plaintiff's vision in both eyes had deteriorated. Defendant Lochherd diagnosed Plaintiff with a left eye cataract. She confirmed that Plaintiff was finally eligible for the removal procedures that Dr. Ahmed had recommended twenty-one months earlier. However, Plaintiff did not meet with an outside specialist until March 5, 2014. The provider failed to detect the left eye cataract and could not see the right eye scar tissue, due to the thickness of the cataract in that eye. Plaintiff was referred to a retina specialist for an appointment on April 3, 2014.

Because Menard was on lockdown, the appointment was cancelled and not rescheduled until May 16, 2014. At the appointment, the specialist again diagnosed Plaintiff with a left eye cataract, but could not see the right eye scar tissue because of the right eye cataract. Removal of the cataract was, once again, recommended. Defendant Lochherd agreed to submit another referral for right eye cataract surgery the same day (Doc. 17-1, pp. 22-23). Wexford approved this request.

In preparation for surgery, Plaintiff met with Defendant Trost on June 12, 2014. When reviewing the authorization forms, Plaintiff noticed that surgery was indicated for the left cataract and not the right. He pointed out the error. Defendant Trost confirmed that the form, in fact, listed the wrong eye and agreed to correct the error. However, no correction was made.

Plaintiff learned of this on June 26, 2014, when he was taken for surgery (Doc. 17-1, p. 24). Given the more than two year wait for right eye cataract surgery, Plaintiff insisted that his right eye cataract be removed, instead of his left. Surgery restored some vision in Plaintiff's right eye, but scar tissue remains. His left eye cataract also remains.

On July 3, 2014, Defendant Lochherd agreed to submit a referral for the third procedure to Plaintiff's right eye, for removal of scar tissue. However, due to an institutional lockdown that began shortly thereafter and continued into August 2014, Plaintiff has been unable to undergo the procedure. Meanwhile, Plaintiff's vision remains limited in his right eye and is deteriorating in his left eye. He cannot see to read or write. He must close his right eye to do so and, even then, he can only see a distance of five feet. He suffers from daily headaches. He requires headache medicine and eye drops, which have been denied.

Plaintiff now challenges Wexford's "cost over care" and "one good eye" policies, as well as its failure to train medical staff. He sues Eric Johnson (site optometrist), Christine Lochherd (site optometrist), J. Trost (site medical director), Robert Shearing (site medical director), Gail Walls (nursing director), and Dr. Baker (utilization management physician) for depriving him of adequate eye care. He seeks a temporary restraining order to "remove scar tissue in [Plaintiff's] right eye and upon healing, immediately remove [a] cataract in [his] left eye" (Doc. 17-2, p. 32). In addition, Plaintiff seeks declaratory judgment, preliminary and permanent injunctive relief, and monetary damages (Doc. 17-2, pp. 30-34).

Merits Review Under 28 U.S.C. § 1915A

This matter is now before the Court for preliminary review of Paragraphs 114-182 and 292-310 of the amended complaint pursuant to 28 U.S.C. § 1915A (Doc. 17-1, pp. 16-27; Doc. 17-2, pp. 15-18). Under § 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez ...


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