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Cervantes v. Wexford Health Source, Inc.

United States District Court, S.D. Illinois

November 29, 2016

RAMIRO CERVANTES, #R-44942, Plaintiff,


          NANCY J. ROSENSTENGEL United States District Judge.

         Plaintiff Ramiro Cervantes, an inmate who is currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”), brings this pro se action for alleged violations of his constitutional rights under 42 U.S.C. § 1983 (Doc. 10). Cervantes's original complaint was dismissed for failure to state a claim, and he was simultaneously granted leave to file an amendment, which he did in a timely fashion (after the Court granted an extension of time to do so).

         In his amended complaint, Cervantes raises a number of claims relating to the medical care he has received at Pinckneyville. He relies upon Section 1983, as well as the Americans with Disabilities Act (the “ADA”), in making his claims. In connection with his claims, Cervantes names Wexford Health Source, Inc., Vipin Shah (doctor), Mark Scott (doctor), Christine Brown (health care unit administrator), Angel Rector (nurse), Jacqueline Lashbrook (warden), (First name unknown) Kelley (nurse), Thomas Spiller (warden), Michael Edwards (assistant warden of programs/ADA coordinator), and Larue Love (assistant warden of programs/ADA coordinator). He seeks monetary compensation and injunctive relief in the form of adequate medical treatment.

         This case is now before the Court for a preliminary review of the amended complaint pursuant to 28 U.S.C. § 1915A. Under Section 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 a 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).

         The Amended Complaint

         Cervantes alleges that on or about January 31, 2015, while he was at the health unit for his evening bath, he was forced to bathe using a gurney set-up, which was abnormal (Doc. 10 at 7). He alleges that the gurney set-up was used because the ADA coordinator-Defendant Edwards-had made some specific order about his contact with other inmates in the healthcare unit (Id. at 8). During his bath, nurses were not paying attention to him and were just standing around by the nursing station (Id. at 11). Specifically, he says Defendant Kelley and others did not keep a close enough watch on him (Id.). The odd set-up caused him to fall on the ground (Id. at 7). He suffered a sore wrist (his only functional wrist as he is paralyzed from the waist down and has no use of his right arm) and general malaise (Id. at 7-8, 11). Though he asked multiple individuals to address his pain, he did not get attention until approximately February 4, 2015, during a physical therapy call pass (Id. at 8).

         Defendant Nurse Rector examined his wrist, saw bruising, and scheduled him for an x-ray (Id.). On February 9, 2015, Cervantes also verbalized his concerns about his wrist to Defendant Brown while Defendant Rector stood within earshot (Id. at 9). Brown allegedly admitted that the gurney set-up was dangerous (Id.). Rector contributed that the x-rays were negative for a fracture or break, though they did show arthritis (Id. at 9-10). At the same time, he complained that his catheter was past due for a change (Id.). Defendant Brown indicated that she would look into the issues (Id.).

         The next day Cervantes asked Defendant Kelley about the catheter, and she informed him it had not yet arrived (Id. at 10). On February 12, 2015 (forty or more days after his last catheter change), Cervantes asserts that his catheter was changed (Id.). He claims that the untimely catheter change is an ongoing issue that has caused him to suffer a urinary tract infection (“UTI”) in the past (Id. at 10-11).

         Cervantes also claims that he should be allowed to shower on a daily basis, as opposed to only three times a week (Id. at 11-12). He insists that other ADA inmates are allowed to shower daily (Id.).

         On April 14, 2015, Cervantes was seen by Defendant Dr. Shah for his wrist injury. (Id. at 12). He notified Dr. Shah that an earlier Tylenol prescription was ineffective to treat the pain (Id. at 12). Shah took no further steps (Id.). On the same date, Cervantes filed a grievance complaining of his wrist pain (Id.). After the grievance, the institution ordered him a wrist sleeve (Id.). Cervantes specifically contends that the delays in treating his wrist “could have worsened his current state of health (paralysis chest down)” (Id. at 13).

         Rather than addressing his needs in a timely fashion, Cervantes contends that the entire Pinckneyville medical staff decided to take the “easier/cheaper route, but much less effective course of treatment (Tylenol)” (Id. at 133). As a result of Defendants' conduct, Cervantes seeks monetary compensation and a declaration that Defendants acted inappropriately in violation of his constitutional rights (Id. at 15).

         In a Memorandum of Law attached to his amended complaint, Cervantes asserts that he has objective evidence that he was given inadequate medical care and consequently suffered harm to his health and safety. (Doc. 10-1 at 2). He also contends that he has subjective evidence that Defendants acted with deliberate indifference and in furtherance of a custom or policy of providing inadequate medical care (Id.).


         Based on the allegations, the Court finds it convenient to divide the pro se amended complaint into the following enumerated claims. 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 designation of these counts does not constitute an opinion regarding their merit.

Count 1: Eighth Amendment deliberate indifference claim against Defendant Kelley for failing to properly supervise or assist Cervantes with his evening bath on or about January 31, 2015;
Count 2: Eighth Amendment deliberate indifference claim against Defendant Edwards for issuing a standing order that led to Cervantes having to use the gurney for a bath on January 31, 2015;
Count 3: Eighth Amendment deliberate indifference claim against Defendant Rector for failing to adequately respond to Cervantes's complaints about his wrist pain;
Count 4: Eighth Amendment deliberate indifference claim against Defendant Brown for failing to adequately address Cervantes's wrist pain and his need for a catheter change;
Count 5: Eighth Amendment failure to treat claim against Defendant Dr. Shah for failing to provide adequate treatment of Cervantes's wrist ...

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