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Merriwether v. Wexford Medical Sources

United States District Court, S.D. Illinois

August 3, 2017



          NANCY J. ROSENSTENGEL United States District Judge.

         Plaintiff Emanuel Merriwether is currently proceeding on one count, pursuant to 42 U.S.C. § 1983, alleging Defendants Wexford, Baldwin, Lashbrook, Brown, and Love conspired to violate his Eighth Amendment rights by instituting a policy of elevating cost over medical care. (Doc. 6, pp. 4, 12). Merriwether's claim relates to the treatment of his vascular ulcers at the Pinckneyville Correctional Center.[1] Merriwether raised several other claims in his original complaint, all of which were dismissed without prejudice for failing to adequately state a claim. (Doc. 6, p.12).[2]

         Procedural History and Orders

         On November 15, 2016, within 21 days of the filing of an answer, Merriwether filed a motion for leave to file an amended complaint. (Doc. 35). In light of the timing of the filing, the Clerk of Court docketed the amended complaint (Doc. 52) pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), and this matter was stayed pending screening of the amended complaint pursuant to 28 U.S.C. § 1915A. On August 3, 2017 Doc. 52 was struck as incomplete (Doc. 55) and Merriwether's motion to amend (Doc. 39) was granted. The Clerk of Court filed the amended complaint submitted on November 18, 2016, which the Court construes as Merriwether's first Federal Rule of Civil Procedure 15(a) (1)(B) amendment. Merriwether's November 18, 2016 amended complaint (Doc. 57) is now before the Court for preliminary review pursuant to § 1915A.

         Preliminary Review

         Merriwether is attempting to cure some of the deficiencies noted in this Court's screening order (Doc. 6) by setting forth allegations against previously dismissed defendants in addition to new claims against new defendants. Section 1915A provides:

(a) Screening - The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

         An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         Upon careful review of the amended complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

         The Amended Complaint

         Merriwether's Amended Complaint alleges claims against twenty individuals, the Illinois Department of Corrections, and Wexford Medical Sources. Merriwether generally alleges that Defendants failed to adequately treat his medical conditions, which include vascular ulcers, nerve damage, chronic pain, and mental illness. He also alleges that he was retaliated against, that his cell was shaken down for no reason, that he was placed on suicide watch for no reason, that his property was destroyed, and that he was otherwise harassed by various prison personnel.

         According to the amended complaint, Merriwether was admitted to the Illinois Department of Corrections on January 8, 2016 at the Northern Reception Center. Merriwether immediately began receiving treatment for his vascular ulcers by Dr. Razi who provided wound care supplies and medications. Some point thereafter, however, Dr. Scott changed the treatment plan in favor of a lower cost plan-Merriwether informed Dr. Scott that the change was causing his condition to get worse and his sores to become more infected. In addition, Nurse Christine Brown refused to refer Merriwether to an outside specialist, and Nurse Jaime failed to follow a “standing medical order” and provide medical supplies. Defendants further failed to adequately change his bandages which may lead to the amputation of his legs. Merriwether sent a letter to Wexford and grieved the matter to Warden Lashbrook but received no response. Merriwether now is “paraplegic” and suffers from severe headaches due to pain, infected wounds, depression, and mental and emotional distress because of this conduct.

         Dr. Scott also has discontinued psychiatric medication (prescribed by Dr. Thakur) and failed to provide other mental health treatment, all in retaliation for filing grievances against him. On October 10, 2016, Merriwether was found with extra medication that he intended to use to commit suicide. The next day, Dr. Scott discontinued certain psychiatric and other medication.[3] Thereafter, on October 27, 2016, Dr. Scott used less bandages than were necessary and failed to treat his infected legs-Merriwether states that the pain and smell of his wounds was unbearable and offensive to others.

         As to Nurses Jamie and Rueter, Merriwether states they taunted and verbally harassed him and provided treatment “as they would want them done” regardless of standing orders. They also compelled security guards to threaten and intimidate him and discussed his medical issues, without his consent, with security guards and other inmates, all in retaliation for grievances. Finally, when Merriwether was placed in segregation, Correctional Officer (“Officers”) Adams failed to provide him with “co-hesive wraps” for a period of three days, thus contributing to infections, pain, and nerve damage.

         Merriwether then provides a narrative under the heading “Complaint of Conspiracy and Retaliation, ” in which he outlines events that began on October 27, 2016. Much of these events do not state any claim. He states that Officers McDonald, Porter, Sweeny, and Webb entered his cell, 5B-14, and left it in shambles with the approval of Correctional Officer Love. During this shakedown, some of Merriwether's property was discarded, including items that were used to elevate his legs to relieve poor blood circulation. The shakedown was at the behest of the Warden. On the next shift (the 3 to 11 shift), Merriwether asked Sergeant Scro to summon a nurse for medical care. Sergeant Scro indicated that a nurse was on the way and Nurse Elizabeth came to Merriwether's cell 30 minutes later. She told Sergeant Scro to take Merriwether's wheelchair “per administration.” Merriwether's wheelchair was taken and his cell was then searched again by Scro, Burrow, and Walla. During the next shift (11 to 7 shift), Officers Johnson and Water, along with Nurse Daugherty came to Merriwether's cell for a medication pass and Officer Johnson told Merriwether “I don't know what the fuck you two have done or did. But the warden told us to fuck over you two.”[4] Then Nurse Daugherty wrote out two tickets for failing to comply with “the mouth check when taking medication.” He then was denied breakfast by Johnson, Water, and Goldsborough and moved to an isolation cell. Ms. Mason explained to Merriwether that the move was for his safety and well-being and in anticipation of a jail transfer. On October 31, 2016, Merriwether was then placed on suicide watch by Ms. Hill and Lt. Frank at the directions of a Major and the Warden-Merriwether did not want to be on suicide watch because of the constant light and the 15 to 30 minute checks.

         The narrative continues with an event involving a paper on the window of the isolation door, Warden Lashbrook's visit to his cell, his forcible removal from the cell, and being stripped naked. Merriwether claims that Warden Lashbrook orchestrated these events in retaliation for writing grievances and filing lawsuits.


         As noted above, Merriwether is already proceeding on Count 1:

Count 1: Wexford, Baldwin, Lashbrook, Brown, and Love conspired to violate Merriwether's Eighth Amendment rights by instituting a policy to refuse to provide adequate health care due to its cost;

         Counts 2-5 of the original complaint were dismissed without prejudice. (Doc. 6). The following Counts can be gleaned from ...

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