United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge.
to 42 U.S.C. § 1983, Plaintiff filed his second amended
complaint alleging deliberate indifference against various
Defendants related to treatment for his spinal cord
compression (Doc. 58). Specifically, the complaint alleges
that Defendants denied him adequate medical care for his
condition (Count I), that some of the Defendants failed to
intervene to prevent the deliberate indifference by other
Defendants (Count II), that Defendants Bharat Shah and
Wexford Health Sources, Inc. (“Wexford”)
committed medical malpractice under Illinois law (Count III),
and that Defendant Wexford is liable for the actions of its
employees under a theory of respondeat superior
(Count IV). This matter is before the Court on two motions to
dismiss. Defendant Wexford has filed a motion to dismiss
(Doc. 48) seeking to dismiss Count 4 of Plaintiff's
amended complaint alleging respondeat superior
liability. Plaintiff has filed a response (Doc. 55).
Defendant Wexford filed a reply (Doc. 60). Defendant Ronald
Vitale also filed a motion to dismiss (Doc. 72) to which
Plaintiff responded (Doc. 76). Based on the following, the
Court GRANTS Defendant Wexford's motion to dismiss (Doc.
48) but DENIES Defendant Vitale's motion to dismiss (Doc.
filed his second amended complaint on January 13, 2017 (Doc.
58). Plaintiff's amended complaint alleges that he began
showing symptoms of spinal cord compression in the spring of
2014 (Doc. 58, p. 1). These symptoms included pain in his
right shoulder blade, tingling and numbness in his right arm
and hand, and tingling and pain in his left arm and finger
first reported his symptoms to Defendant Loretta Wilford on
May 13, 2014 and she scheduled Plaintiff to see the doctor
the following day (Doc. 58, p. 5). Plaintiff met with
Defendant Bharat Shah for the first time regarding his
symptoms on May 14, 2014 (Id.). Defendant Shah
instructed Plaintiff to do back exercises and ordered that
his blood pressure be monitored (Id.). Plaintiff
alleges that his condition continued to worsen and that he
complained to Defendants Phyllis Maston, Leanda Davis, Lynne
Johnson, Loretta Wilford, Susan Hardin, and Rhonda Bennett
every day from May 15, 2014, to May 21, 2014 (Id. at
5-6). Defendants did nothing during this period except take
Plaintiff's blood pressure (Id. at 6). Plaintiff
saw Defendant Maston on May 20, 2014, and complained of
numbness in his fingers on his right hand, tingling down both
sides of his waist, issues with gripping in his right hand,
difficulties walking, and pain in his lower back
(Id. at 6). Defendant Maston only noted that
Plaintiff had a follow-up appointment in eight days
was seen again by Defendant Shah on May 28, 2014, and
Plaintiff complained again of increasing numbness and
tingling (Doc. 58, p. 6). He also complained that he had no
gripping ability in his right hand and that he had difficulty
walking (Id.). Defendant Shah allegedly did not
provide Plaintiff with any care for his condition. Plaintiff
alleges that he saw Defendant Shah several more times from
June to July 2014 and he continued to display deliberate
indifference to Plaintiff's deteriorating condition
(Id. at 7-8).
point during his incarceration at Southwest, Plaintiff saw
Defendant Ronald Vitale, the warden, walking about the
facility (Doc. 58 at 8). He approached Defendant Vitale and
complained of his ailments, which on that date were so severe
that he could barely walk due to the pain, tingling, and
numbness (Id.). Defendant Vitale did nothing in
response to Plaintiff's complaint (Id.).
was released from prison on September 15, 2014, and went to
Gateway Regional Medical Center ER on September 26, 2014
(Id. at 9). At that time he obtained an MRI and was
diagnosed with severe spinal cord compression (Id.).
He was transferred to SSM Health St. Mary's Hospital for
emergency surgery for the compression (Id.).
Plaintiff's complaint alleges that Defendants refused to
treat Plaintiff's condition and that, as a result, his
spinal cord condition worsened, leaving him with pain which
he continues to experience (Id.).
response, Defendants Wexford and Vitale have filed motions to
dismiss (Docs. 48, 72). Defendant Wexford seeks to dismiss
Plaintiff's Count IV, which alleges that Defendant
Wexford is liable under the doctrine of respondeat
superior for the actions of its employees under both
state law and § 1983 (Doc. 48). Defendant Wexford argues
that respondeat superior doctrine is not applicable
to § 1983 litigation and that it is not a proper action
under state law. Plaintiff conceded that under circuit
precedent his § 1983 claim against Wexford cannot
proceed on a theory of respondeat superior (Doc.
60). However, as to his state law claim for respondeat
superior liability, he argues the claim can proceed
(Id.). Defendant Vitale also argues that the Court
should dismiss the claims against him as they are
insufficient to allege deliberate indifference or a failure
to intervene (Doc. 72). As to Defendant Vitale's motion,
Plaintiff argues that at this early stage in the litigation,
his allegations are sufficient as to deliberate indifference,
and as to the failure to intervene claim, he argues Defendant
Vitale has forfeited a response (Doc. 76).
Rule of Civil Procedure 12(b)(6) governs motions to dismiss
for failure to state a claim upon which relief can be
granted. The United States Court of Appeals for the Seventh
Circuit has explained that although a complaint need not
contain detailed factual allegations to avoid Rule 12(b)(6)
dismissal, it must contain “enough facts to state a
claim for relief that is plausible on its face.”
Scott v. Chuhak & Tecson, P.C., 725 F.3d 772,
782 (7th Cir. 2013) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). See also Burke
v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th
Cir. 2013). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” D.B. ex rel. Kurtis B.
v. Kopp, 725 F.3d 681, 684 (7th Cir. 2013) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The
claim (or complaint) must “go beyond mere labels and
conclusions” and contain “enough to raise a right
to relief above the speculative level.” G&S
Holdings, LLC v. Continental Casualty Co., 697 F.3d 534,
537-38 (7th Cir. 2012) (quoting Twombly, 550 U.S. at
555). Stated another way: “to withstand a Rule 12(b)(6)
challenge after Iqbal and Twombly,
‘the plaintiff must give enough details about the
subject-matter of the case to present a story that holds
together, ' and the question the court should ask is
‘could these things have happened, not
did they happen.'” Estate of Davis v.
Wells Fargo Bank, 633 F.3d 529, 533 (7th Cir. 2011)
(quoting Swanson v. Citibank, N.A., 614 F.3d 400,
404-05 (7th Cir. 2010) (emphasis in original)).
“must still approach motions under Rule 12(b)(6) by
‘construing the complaint in the light most favorable
to the plaintiff, accepting as true all well-pleaded facts
alleged, and drawing all possible inferences in her
favor.'” Hecker v. Deere & Co., 556
F.3d 575, 580 (7th Cir. 2009), cert. denied, 558
U.S. 1148 (2010) (quoting Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008). The court takes well-pleaded
facts as true, but does not accept as ...