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Almond v. Wexford Health Source, Inc.

United States District Court, N.D. Illinois

June 22, 2017

Charles Almond, Plaintiff,
v.
Wexford Health Source, Inc., et al, Defendants.

          ORDER

          FREDERICK J. KAPALA District Judge

         Dr. Shicker's motion to dismiss [77] is granted. Dr. Shicker is terminated from this case.

         STATEMENT

         Plaintiff, Charles Almond, an inmate of the Illinois Department of Corrections (“IDOC”) housed in the Dixon Correctional Center (“DCC”), brought this suit against defendants, Wexford Health Sources, Inc. (“Wexford”); Jill Wahl, M.D.; Bessie Dominguez, M.D.; Hector Garcia, M.D.; Louis Shicker, M.D.; and Assistant Warden Charles Fasano. Almond alleges a violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983, claiming that a wide-spread medical practice allowed for deliberate indifference to his medical needs, causing him permanent disability. Before the court is Dr. Shicker's Rule 12(b)(6) motion to dismiss Almond's claim against him on the grounds that he has failed to state a claim upon which relief may be granted.

         I. BACKGROUND[1]

         On or about May 16, 2013, Almond was injured while running in the prison yard. At the time the injury occurred, Dr. Shicker was the IDOC Medical Director. This job entailed overseeing the medical services for all correctional centers, including the DCC. On May 18, 2013, Almond reported the injury of his right knee and leg to a staff nurse. This nurse was an employee of Wexford. She examined him and provided him with crutches, pain medication, and an ace wrap to help manage the pain. Almond continued to complain of pain on May 24, May 31, and June 17, 2013.

         On June 21, 2013, Dr. Dominguez examined Almond after he complained of severe pain and claimed that he had fallen out of his bunk due to the condition. Dr. Dominguez gave him a permit for a lower bunk, gym restriction, and pain medication. Almond visited Dr. Dominguez once again on July 15, 2013, and complained that the treatment was ineffective. Dr. Dominguez decided to keep the same treatment plan and continued to recommend it at subsequent visits.

         On September 12, 2013, Almond was examined by Dr. Wahl, who suspected that Almond suffered from a quadricep tear to the right knee. Dr. Wahl recommended that Almond receive a consult from an orthopedic physician. On September 25, 2013, after a medical consultation, Wexford decided to deny referring Almond to an orthopedic physician and instead to continue treatment onsite. During this time, Almond suffered an injury to his right hip and elbow due to the previous injury to his right knee.

         On December 10, 2013, Wexford authorized an offsite consultation with an orthopedic specialist. Almond was transported to an orthopedic specialist at the University of Illinois Chicago Medical Center, on March 7, 2014. The specialist diagnosed a quadricep tendon tear in the right knee. He recommended an MRI to examine the injury further and also suggested that Almond be examined by an orthopedic surgeon. The MRI revealed a partial rupture of the quadriceps tendon and an old healed avulsion fracture and prior tear of the medial meniscus.

         On October 7, 2014, Almond was sent back to the orthopedic specialist, who noted that he was examining Almond “by mistake, ” and once again recommended that Almond see a surgeon. On January 12, 2015, Almond saw an orthopedic surgeon who recommended surgery on the right knee. On March 3, 2015, Almond received the surgery on his right knee, but alleges that he is permanently disabled due to the delay in diagnosis.

         In his second amended complaint, Almond alleges that Dr. Shicker and Wexford had notice of a wide-spread practice by medical personnel at the DCC, whereby inmates were routinely denied access to proper medical attention. Almond claims that Dr. Shicker and Wexford were deliberately indifferent to this practice by failing to properly discipline prior instances of medical neglect by their agents, which encouraged future abuse of the medical rights of inmates and caused the unconstitutional treatment resulting in his injury.

         Before the court is Dr. Shicker's motion to dismiss Almond's second amended complaint. Dr. Shicker argues that Almond's second amended complaint should be dismissed for failure to state a plausible claim because he does not allege that Dr. Shicker was personally involved in the alleged deliberate indifference to his medical needs. Almond, on the other hand, argues that the second amended complaint states a valid claim because Dr. Shicker should have had notice of an unconstitutional policy or practice and did nothing to try to prevent it.

         II. ANALYSIS

         When deciding a defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court accepts all of the well-pleaded factual allegations of the complaint as true, and draws all reasonable inferences in favor of the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To state a claim under the Federal Rules, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[D]etailed factual allegations” are not required, but the plaintiff must ...


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