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Barrow v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

October 8, 2014

RONALD BARROW # N-52087, Plaintiff,



Now before the Court for consideration is Plaintiff Ronald Barrow's third amended complaint (Doc. 30). This Court dismissed two earlier versions of the complaint (Docs. 12, 23) under Federal Rule of Civil Procedure 8, after Plaintiff filed a 461-page initial submission (Doc.

1) and an 86-page amended complaint (Doc. 19). Plaintiff has, on more than one occasion, filed proposed amended complaints before reviewing this Court's orders dismissing earlier iterations of the pleading (Docs. 19, 24). The Court has attempted to simplify this matter for Plaintiff by severing certain claims into a separate lawsuit for expedited handling of the more pressing issues (Doc. 19). See Barrow v. Wexford Health Sources, Inc., et al., Case No. 14-cv-941 (S.D. Ill. Aug. 28, 2014). The Court has also provided Plaintiff with numerous opportunities to re-plead his claims.

For Plaintiff, the third time is the charm. As discussed in detail below, Plaintiff's third amended complaint survives preliminary review under 28 U.S.C. § 1915A, and he shall be allowed to proceed with his Eighth Amendment medical needs claims against Wexford Health Sources, Inc., Robert Shearing, John Trost, Gail Walls, and Kimberly Butler.[1]

Merits Review Under 28 U.S.C. § 1915A

This case is now before the Court for a preliminary review of the third amended complaint pursuant to 28 U.S.C. § 1915A. 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 v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). After reviewing the allegations in the third amended complaint under this standard, the Court finds that it survives threshold review.

Third Amended Complaint

Plaintiff is currently incarcerated at Menard Correctional Center ("Menard"), where he is serving a life sentence for murder, among other convictions. He has been housed at Menard since 1985. In his third amended complaint (Doc. 30), Plaintiff claims that Menard officials deprived him of adequate medical care for several chronic health conditions over the course of many years (pp. 8-17). Plaintiff now sues Wexford Health Sources, Inc. ("Wexford"), Robert Shearing (doctor), John Trost (doctor), Gail Walls (nursing director), and Kimberly Butler (warden) for violating his right to receive adequate medical care under the Eighth Amendment. He seeks declaratory judgment, monetary damages, and injunctive relief (pp. 18-20).

According to the third amended complaint, the Illinois Department of Corrections ("IDOC") contracted with Wexford to provide health care staff and services to prisons within the IDOC, including Menard (p. 1). According to Plaintiff, however, Wexford has consistently failed in its duty to provide constitutionally adequate medical care to Plaintiff. This is due, in part, to Wexford's policy, custom, or practice of elevating "cost over care" (p. 8). In order to save money, Wexford routinely refuses to fill critical medical staff positions, delays or denies off-site medical care, and delays or denies prescription refills, among other things. This policy, custom, or practice has allegedly "caused Plaintiff to suffer countless experiences of untimely and inadequate medical care and treatment" (p. 8). The third amended complaint goes on to allege that in order to avoid liability, Wexford structures "its affairs so that no one person is responsible for Plaintiff's health care, solely to make it impossible to pin point responsibility on an individual" (p. 9). Plaintiff now wishes to proceed against Wexford, based on a respondeat superior theory of liability or, alternatively, an unconstitutional policy, custom, or practice of elevating "cost over care."

Plaintiff also generally claims that Wexford, Shearing, Trost, and Walls denied Plaintiff access to his prescription refills (p. 10). Plaintiff suffers from a number of chronic medical conditions, including a back, knee, and shoulder problem and diverticulosis. These conditions necessitate the regular use of medications, including prescription medications. Associated with some of these medications is an increased risk of stroke, heart attack, or death, if the medication is suddenly stopped (p. 11). Despite these risks, Defendants have consistently denied, delayed, or failed to deliver prescription refills to Plaintiff (pp. 11-12).

Defendants have also provided inadequate medical care for Plaintiff's chronic back problem since 2009 (p. 12). After waiting a year for an MRI, Plaintiff was diagnosed with lower back disc damage following an MRI on June 25, 2010. Wexford delayed Plaintiff's referral to an off-site specialist for seven weeks. The specialist recommended physical therapy, epidural steroid injections, pain management treatment, and, if necessary, surgery. Despite these recommendations, Plaintiff never received physical therapy[2] (p. 13). Steroid injections were delayed, [3] and pain medication ( i.e., Ultram) was suddenly stopped or denied. Defendants never reviewed Plaintiff's treatment plan or scheduled follow-up testing. As a result, Plaintiff suffered unnecessary back pain from 2009 through 2012. In connection with this condition, Plaintiff also seeks a temporary restraining order (Doc. 28) for a more recent aggravation of this condition, which will be addressed in more detail below.

In addition, Plaintiff claims that Defendants failed to adequately treat his chronic rectal bleeding and diverticulosis (p. 14). Plaintiff has suffered from rectal bleeding since 2006. He was not diagnosed with diverticulosis until 2007.[4] Wexford delayed an initial colonoscopy to diagnose the condition for seven months and a follow up colonoscopy to monitor the condition for two years. A specialist recommended a high fiber diet and Metamucil, which Defendants denied (pp. 14-15). As a result, Plaintiff's symptoms worsened, causing Plaintiff to suffer from multiple infections; each time, the infections were allegedly handled with deliberate indifference, including the early termination of antibiotics and inordinately delayed blood testing.

Plaintiff also complains of a chronic knee injury that Defendants failed to treat (pp. 15-16). The injury was not diagnosed for approximately ten years. After Plaintiff received an x-ray and a diagnosis, no physical therapy, pain treatment, or surgery were provided (p. 16). Plaintiff continues to suffer from unnecessary pain and a limited range of movement in his knee.

Finally, Plaintiff complains of a chronic shoulder injury that Defendants failed to treat. Plaintiff waited for a shoulder x-ray for more than a year. When a specialist recommended an MRI to diagnose a possible rotator cuff injury, one was never provided. In fact, Plaintiff alleges that he has received no medical care, treatment for pain, or surgery for the condition. He continues to suffer from unnecessary pain and a limited range of activity.


The Court now finds it convenient to divide the pleading into six counts, all of which are consistent with Plaintiff's designation of each count in the third amended complaint. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The ...

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