United States District Court, N.D. Illinois, Eastern Division
JULIO C. GUERRERO, Plaintiff,
WEXFORD HEALTH SOURCES, INC. Defendants.
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge
Guerrero, an inmate at Stateville Correctional Center, brings
claims against a variety of prison employees (and Wexford
Health Sources, which provides healthcare services at the
prison, and several Wexford employees) for deliberate
indifference to his foot deformity and resulting pain. The
named employees of the Illinois Department of Corrections
(“IDOC”) - Shanal Barnett, Michael Lemke,
Dorretta O'Brien, Royce Brown-Reed, Salvador Godinez, and
David Gomez - have moved to dismiss the counts against them
under Fed.R.Civ.P. 12(b)(6). For the reasons stated below,
the motion to dismiss is granted in part and denied in part.
purposes of this motion, all factual allegations in the
complaint are accepted as true and all reasonable inferences
are drawn in the plaintiff's favor. See Antonelli v.
Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). The Court
summarizes only the facts that are relevant for the IDOC
defendants' motion, and thus does not recite much of the
medical information and grievances that are relevant to the
Guerrero has had a genetic deformity in his feet since
childhood, which causes him to have “flat feet”
with no arches and collapsed insteps. Am. Compl.
(“Compl.”) ¶ 14, ECF No. 31. This condition
causes him “extreme pain in his feet, knees, and lower
back, rendering it difficult for him to walk or to perform
any kind of physical activity” without custom orthotic
shoes. Id. Guerrero had such shoes growing up, and
he had such shoes in prison until June of 2012, when the
shoes were lost in his transfer between prisons. Id.
at ¶ 14-15. Beginning in late 2012, Guerrero tried to
convince medical staff at Stateville to prescribe him custom
orthotic shoes but struggled to even get appointments to see
medical staff. See Id. at ¶ 17-24.
IDOC defendants first enter the picture on October 14, 2013,
when a grievance officer denied one of Guerrero's
requests for shoes and to see the doctor because according to
Royce Brown-Reed (the Healthcare Unit Administrator) the
medical staff had told Guerrero to purchase shoes from the
commissary and he had done so. See Compl. Ex. E.
Brown-Reed determined a referral to the Medical Director (the
only doctor on staff) was not necessary. Id.
Guerrero's grievance had specifically explained that the
commissary shoes did not have the arch support he needed to
alleviate his symptoms. See Compl. Ex. D. Warden
Michael Lemke checked the “I concur” box on this
grievance denial. See Compl. ¶ 26.
bulk of Guerrero's claims against the IDOC defendants
stem from an October 29, 2013 cell house round performed by
Lemke, Brown-Reed,  and Assistant Warden Dorretta O'Brien.
See Compl. ¶ 28. During the rounds, Guerrero
approached these defendants and explained that he needed an
appointment with the Medical Director to receive treatment
for his flat feet. See Id. at ¶ 29. He further
explained that Wexford was failing to provide him with a
remedy, an appointment with the Medical Director, or an
appointment with an orthopedist. Id. Guerrero showed
Lemke and O'Brien his shoes, which showed “balding
on the insides of the shoes and Plaintiff's collapsed
arches touching the ground.” Id. Finally, he
explained his pain levels, to which Lemke and O'Brien
responded “Wow, that's bad!” Id.
They wrote Guerrero's name on a list and said they would
look into it.
point, O'Brien told Guerrero to speak with Brown-Reed
directly, which he did. See Compl. ¶ 30.
Guerrero also showed Brown-Reed his inadequate shoes and
explained his pain. Id. At some point (it is unclear
whether it was before or after the other conversations),
Brown-Reed told O'Brien that Guerrero's problems were
not covered by IDOC healthcare. Id.
on October 29, Guerrero wrote a letter to Salvador Godinez,
the Director of IDOC, summarizing the October 29, 2013 cell
house round interactions and pleading with him to provide
Guerrero with the medical care he sought. Compl. ¶ 30.
It is not clear what, if any, response Guerrero received.
2014, Guerrero was finally allowed to see the Medical
Director, and was granted over the counter insoles for his
shoes, which he alleges did not assist with his problems.
See Id. at ¶ 33-34. On July 23, 2014, he fell
while playing basketball (as a result of the ill-fitting
insoles) and injured his ankle. See id. at ¶
35-36. Guerrero was treated by Shanal Barnett, a medical
technician, over the course of three visits. See Id.
at ¶ 36. During these visits, Barnett prescribed pain
medication and monitored his condition, but did not determine
the cause of his injury beyond the fall. Id. It does
not appear that Guerrero ever discussed the insoles or his
foot problem with Barnett.
continued through this period to file grievances and
otherwise contest his inability to receive treatment by an
orthopedist. On April 29, 2015, Deputy IDOC Director David
Gomez was approached by Guerrero during cell house rounds.
Compl. ¶ 42. In Spanish,  Guerrero explained that his pain
was worsening and that he was not being treated. Id.
He showed Gomez the balding shoes and that his arches touched
the ground. Id. Gomez asked whether he had exhausted
the grievance process, and when Guerrero confirmed that he
had, Gomez wrote down Guerrero's name and number and said
“I'll see what I can do, but I can't promise
you anything.” Id. Gomez also told Guerrero
“I know what I would do, ” which Guerrero alleges
suggested litigation as a remedy. Id.
motion moves to dismiss Count II, which is against only
Lemke, O'Brien, Godinez, and Gomez and only in their
official capacities, and Count III, which is against all the
IDOC and medical defendants in their individual
capacities. See Mot. at 2, ECF No. 65. Count
II requests only injunctive relief, while Count III requests
damages. The IDOC defendants argue that Count II should be
dismissed because “the named Defendants are no longer
situated in a capacity with Stateville or the IDOC to ensure
that the injunctive relief would be carried out.”
Id. They request Count III be dismissed because
“Plaintiff fails to allege that the IDOC Defendants
were personally involved in the alleged deprivation of
rights, nor can it be inferred that Defendants' [sic] had
the requisite knowledge.” Id. For the reasons
stated below, the motion to dismiss is denied as to every
defendant except Barnett (for all counts) and Gomez and
O'Brien as to Count II only.