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Viverette v. Wexford Health Sources, Inc.

United States District Court, S.D. Illinois

July 24, 2015

JIMMY VIVERETTE, No. M35784, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., C. BROOKS, UNKNOWN PARTY NURSE JANE DOE, JAMES TRAVIS, N. BAKER, and STEVE DUNCAN, Defendants.

MEMORANDUM AND ORDER

NANCY J. ROSENSTENGEL, District Judge.

Plaintiff Jimmy Viverette is an inmate currently housed in Lawrence Correctional Center. Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for deprivations of his constitutional rights with respect to the denial and/or delay in providing him medical treatment.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. 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). Frivolousness is an objective standard that refers to a claim that "no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

According to the complaint, on December 21, 2014, Plaintiff was playing basketball when he heard a pop from the back of his leg. He was unable to walk and asked a guard for help. Nurse C. Brooks came out with a wheelchair and took Plaintiff back to the health care unit. Plaintiff told Nurse Brooks what happened; she completed an injury report, noting that follow-up with a physician's assistant ("PA") was needed, but on a separate assessment form she indicated no referral to a doctor was necessary, only referral to a PA. Nurse Brooks told Plaintiff that he had torn a muscle-a medical decision formed without input from a physician. In any event, Nurse Brooks did not inform the head doctor, Dr. Coe, that plaintiff had a torn muscle. She also made Plaintiff hop back to his cell. Nurse Brooks never arranged for a follow-up exam, so Plaintiff was left in pain and without treatment.

Plaintiff submitted his own written request(s) for medical care; a month after his injury he was seen by Nurse Jane Doe. That nurse asked why Plaintiff was just then informing the health care unit about his injury. Plaintiff explained that he had been seen by Nurse Brooks. Nurse Doe gave Plaintiff Motrin and said she would arrange for Plaintiff to be seen by the PA. Plaintiff had to wait an additional three days until he was seen by PA Travis. The PA observed that Plaintiff had Achilles tendon pain. No x-rays were taken, and nothing was done to relieve his pain. A follow-up exam was ordered, but he was not seen by anyone.

On March 18, 1015, Plaintiff was seen by Nurse N. Baker. Baker scheduled Plaintiff to see the PA a few days later, on March 23. After examining Plaintiff, the PA arranged for Plaintiff to see Dr. Coe.

On March 30, 2015, three months after his injury, Plaintiff finally saw a doctor. Dr. Coe ordered an ultrasound exam. On April 3, Plaintiff was given a splint and boot. He was also approved for an orthopedic consultative exam. Plaintiff saw the orthopedist on May 12, and on May 26, Plaintiff's Achilles tendon was surgically repaired.

Plaintiff attributes the delay and lack of treatment to negligence and a policy and practice of requiring inmates to be seen by a nurse on three occasions before being seen by a physician. He also indicates that his injury was sufficiently obvious and that he should have been immediately seen by a physician.

Wexford Health Sources, Inc., Nurse C. Brooks, Nurse Jane Doe, Physician's Assistant James Travis, Nurse N. Baker, and Warden Steve Duncan are all sued in their official and individual capacities. Plaintiff seeks compensatory and punitive damages, as well as injunctive relief from Warden Duncan. Plaintiff demands a change in the health care unit's policy and practice of having inmates see a nurse three times, and for injured inmates to be placed on the first available physician's call line.

Based on the allegations in the complaint, the Court finds it convenient to frame the pro se action into the following overarching claim.

Count 1: Defendants Wexford Health Sources, Inc., Nurse C. Brooks, Nurse Jane Doe, Physician's Assistant James Travis, and Nurse N. Baker were deliberately indifferent to Plaintiff's serious medical needs, in violation of the Eighth Amendment; Warden Duncan is a ...


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