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Akers v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

October 7, 2014

ROBERT AKERS, #K-68901, Plaintiff,


J. PHIL GILBERT, District Judge.

Plaintiff, currently incarcerated at Menard Correctional Center ("Menard"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 30-year sentence for murder and a five-year sentence for escape. He brings two claims: that he has been denied necessary surgery to correct a painful and dangerous inguinal hernia, and that he was injured in a slip-and-fall accident due to the deliberate indifference of certain Defendants. Along with his complaint, Plaintiff filed a motion for preliminary injunction in which he requests the Court to order Defendants to refer him to a qualified specialist for surgical treatment of his hernia (Doc. 2).

In the complaint (Doc. 1), Plaintiff states that he suffered an injury in June 2012 that caused him to develop the inguinal hernia.[1] His intestines are protruding through the torn tissues, and "externally it is the approximate size of a baseball" (Doc. 1, p. 3). Plaintiff has been seen by several medical professionals at Menard, but none of them have provided adequate treatment. As a result, the injury has become worse over time and his pain has increased.

Plaintiff saw Defendant Dr. Nwaobasi on June 21, 2012, and reported that the hernia was causing him sudden and intensely sharp pain affecting all his daily activities. Defendant Nwaobasi did prescribe pain medication, but said he would not "fix the hernia" with surgery because it was not "life-threatening." Id. Plaintiff contends that the only way to treat a hernia such as his is through surgical repair. He attaches information from the National Institutes of Health (Doc. 1-1, pp. 12-20) describing the risk that an inguinal hernia may become incarcerated (where the protruding intestine or tissue "becomes stuck in the groin or scrotum and cannot go back into the abdomen, " Doc. 1-1, p. 15) or strangulated (where the blood supply to the small intestine may become obstructed if an incarcerated hernia is not treated; lack of blood supply to that organ is an "emergency situation" and is a "life-threatening condition." Id. ). Plaintiff contends that if surgery is not performed, his hernia will continue to get worse until it becomes life-threatening. Because Defendant Nwaobasi provided no treatment other than pain medication which proved ineffective, Plaintiff's abdominal tissue has torn further. This has increased the size of his hernia as well as the degree of his pain (Doc. 1, p. 4).

On September 27, 2013 (nearly 15 months after his initial injury), Plaintiff was seen by Defendant Moldenhauer (nurse practitioner). This Defendant told Plaintiff he would not authorize surgery, and said that "the pain is just something [Plaintiff] will have to deal with." Id. Defendant Moldenhauer gave Plaintiff no treatment whatsoever.

Plaintiff saw Defendant Dr. Shearing (who was then the Medical Director at Menard) on November 1, 2013. Plaintiff explained that he has ongoing intense pain; he cannot cough, sneeze, or blow his nose without needing to hold the hernia in an attempt to avoid further tearing; he has difficulty moving his bowels; any slight and sudden movement causes the tissues to tear; he has difficulty sleeping due to the pain; his digestion is affected; and he cannot exercise at all (Doc. 1, pp. 4-5). Plaintiff told the doctor that according to what he had read about the condition, the only way to treat this type of injury is through surgery (See Doc. 1-1, pp. 12-20). Defendant Shearing responded that he "will not authorize surgical repair, " and offered no other treatment.

Plaintiff asserts that the policies and procedures established by Defendant Wexford Health Sources, Inc. ("Wexford"), to cut the costs of providing care to inmates have caused the above medical-professional Defendants to deny him proper medical care. In turn, these cost-cutting practices have caused Plaintiff to suffer from cruel and unusual punishment in violation of his constitutional rights (Doc. 1, p.5).

Finally, Plaintiff notes that he has filed a grievance against the current Menard Medical Director, Dr. Trost, over the same problems described herein, and anticipates amending his complaint soon to add him as another Defendant (Doc. 1, p. 6).

Plaintiff's second claim is against Defendants Cartwright, Shirtz, Ziegler, and the Unknown Party (John Doe) Grounds Crew Supervisor. He claims that each of these Defendants was deliberately indifferent to a serious risk to Plaintiff's safety when, on January 7, 2014, Plaintiff was required to walk across a slippery, ice-covered outdoor area in order to get from the cell house to the dining hall for lunch. Defendants Cartwright and Shirtz personally saw the obvious safety hazard posed by the ice. However, they and/or Defendant Ziegler (their supervisor) ordered Plaintiff and the other prisoners to walk across the ice, when they instead could have ordered the inmates to be fed in their cells (Doc. 1, pp. 6-7). The John Doe Grounds Crew Supervisor failed in his responsibility to clean up the ice.

A Plaintiff was walking on the slippery surface and trying to maintain his balance, his hernia pain suddenly intensified, at which point he lost his footing completely (Doc. 1, p. 8). He grabbed the hernia in an attempt to prevent it from further tearing, thus he was not able to use his hands to catch himself as he fell. The fall injured his spine and sciatic nerve. Plaintiff was immediately taken to the Health Care Unit in a wheelchair. His injuries kept him bedridden and unable to leave his cell for several days. The next day, the prison went on lockdown due to the weather.

Plaintiff seeks declaratory relief, compensatory and punitive damages, and an injunction ordering Defendants to provide him with hernia surgery.

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 ...

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