United States District Court, C.D. Illinois
MERIT REVIEW OF AMENDED COMPLAINT
A. BAKER, UNITED STATES DISTRICT JUDGE
Court had dismissed the plaintiff's complaint, without
prejudice, at merit review for failure to exhaust
administrative remedies pursuant to 42 U.S.C. §
1997(e)(a). See Order (d/e #10). Plaintiff appealed
and the Seventh Circuit Court of Appeals vacated and
remanded, asserting that the case should not have been
“dismissed sua sponte at screening” for
failure to exhaust remedies. See Mandate (d/e #33).
matter is now reinstated, the Court GRANTS Plaintiff's
previously filed Motion for Leave to Amend , and directs
the Clerk to file the Amended Complaint. The Court now
undertakes a merit review of the Amended Complaint pursuant
to 28 U.S.C. § 1915A. In reviewing the Amended
Complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir.
2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to “state a
claim for relief that is plausible on its face.”
Alexander v. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted).
Amended Complaint Plaintiff alleges a history of severe dry
mouth and vocal cord pain since 2008. In July 2014, he was
referred to an outside specialist and diagnosed with
neurological dry mouth and weak vocal cords. He was
prescribed Neurontin and Biotene, a prescription mouthwash.
That same year, Plaintiff was also diagnosed with blocked
salivary glands which, at times, cause sores to develop in
alleges that Wexford Health Sources and Boswell Pharmacy
Services have refused to provide him Biotene. He alleges that
he told Defendant Anderson that he was being denied Biotene
and she has refused to intervene. He also complained to Dr.
Andrew Tilden and Nurse Jennifer Tinsley, telling them that
he was suffering severe pain as a result. Defendants Tilden
and Tinsely allegedly failed to prescribe or otherwise
provide Biotene to him. Dr. Tilden purportedly told Plaintiff
that Wexford would not allow the ordering of Biotene or
referral to an outside specialist due to the costs involved.
Plaintiff claims that Defendants' actions violated his
Eighth Amendment rights and rights under the American with
Disabilities Act (“ADA”) and the Rehabilitation
successfully pleads a claim for deliberate indifference to a
serious medical need against Defendants Dr. Tilden, Jennifer
Tinsley, and Terri Anderson. He also states a case against
Wexford based on the allegations that Wexford had an official
policy which caused him harm. Plaintiff, however, fails to
allege facts to establish that Boswell Pharmacy Services was
personally responsible for his injury. Here, Plaintiff claims
that the medical providers refused to prescribe him Biotene.
Boswell Pharmacy Services could not be liable for failing to
provide a medication which had not been ordered. Furthermore,
Plaintiff does not establish that Boswell, apparently a
private company, was acting under color of state law for
§ 1983 liability. A private party's conduct can be
considered state action only if there is a sufficiently close
nexus between the state and the private conduct so that the
action “may be fairly treated as that of the State
itself.” Wade v. Byles, 83 F.3d 902, 904-05
(7th Cir. 1996) (internal citations omitted). Plaintiff
identifies no such nexus and Boswell is DISMISSED.
claims under the Americans with Disabilities and
Rehabilitation Act fail as Plaintiff does not allege that he
was discriminated against him due to a disability. See
Resel v. Fox, 2001 WL 1654524, * 4 (7th Cir. Dec. 20,
2001)(“a prison official does not violate the ADA when
failing to attend to the medical needs of ... disabled
prisoners.”); Perrey v. Donahue, 2007 WL
4277621, * 4 (N.D. Ind. Dec. 3, 2007)(“The
Rehabilitation Act was not intended to require prison
officials to provide medical treatment to prisoners with a
serious medical needs.”).
claim against the Illinois Department of Corrections
(“IDOC”), is dismissed as IDOC is not a (person)
amendable to suit under ' 1983. See Thomas v.
Illinois, 697 F.3d 612, 613 (7th Cir. 2012)(“a
state and its agencies are not suable ‘persons'
within the meaning of section 1983…” (citing,
Will v. Mich. Dep't of State Police, 491 U.S.
58, 70-71 (1989)).
IS THEREFORE ORDERED:
Clerk is DIRECT to file Plaintiff's Amended Complaint
Pursuant to its merit review of the Amended Complaint under
28 U.S.C. § 1915A, this case shall proceed on
Plaintiff's claim for deliberate indifference to a
serious medical need against Defendants Tilden, Tinsley,
Anderson and Wexford. Plaintiff's ADA and Rehabilitation
Act claims are DISMISSED. Defendants Boswell Pharmacy
Services and IDOC are DISMISSED. Any additional claims shall
not be included in the case, except at the court's
discretion on motion by a party for good cause shown or
pursuant to Federal Rule of Civil Procedure 15.
Plaintiff's , Motion to recruit pro bono
counsel is DENIED. Under Pruitt v. Mote, 503 F.3d
647, 654-55 (7th Cir. 2007), the Court asks: (1) has the
indigent Plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if
so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself? Here Plaintiff
provides two letters he ostensibly sent to prospective
counsel. He has not, however, provided any responses which he
received. In the event Plaintiff renews his motion for
appointment of counsel, he should list the attorneys to whom
he wrote and should attach any letters sent to or received
from those attorneys.
case is now in the process of service. The plaintiff is
advised to wait until counsel has appeared for the defendants
before filing any motions, in order to give the defendants
notice and an opportunity to respond to those motions.
Motions filed before defendants' counsel has filed an
appearance will generally be denied as premature. The
plaintiff need not submit any evidence to the court at this
time, unless otherwise directed by the court.
court will attempt service on the defendants by mailing each
defendant a waiver of service. The defendants have 60 days
from the date the waiver is sent to file an answer. If the
defendants have not filed answers or appeared through counsel
within 90 days of the entry of this order, the plaintiff may
file a motion requesting the status of service. After the