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McDonald v. Obaisi

United States District Court, N.D. Illinois, Eastern Division

September 13, 2017

DONALD LEE MCDONALD, Plaintiff,
v.
SALEH OBAISI and WEXFORD HEALTH SOURCES INC., Defendants.

          MEMORANDUM OPINION & ORDER

          Joan B. Gottschall United States District Judge

         The plaintiff, Donald Lee McDonald (“McDonald”), is a prisoner at Stateville Correctional Center (“Stateville”) in Joliet, Illinois. 1st Am. Compl. (“FAC”) ¶ 4, ECF No. 19. This litigation concerns his medical care. McDonald alleges that he has suffered from spinal stenosis for years. Spinal stenosis “is a narrowing of the open spaces in the spine, which can put pressure on the spinal cord and the nerves that travel through the spine to the arms and legs.” FAC at 3 n.1 (citation omitted). McDonald has complained of severe, chronic lower back pain for years, but, he alleges, Stateville medical personnel have provided, and continue to provide, inadequate care. See FAC ¶¶ 7-14. As a result, McDonald claims that he has needlessly suffered agonizing pain and that he still needs surgery. FAC at 1. In his amended complaint, which the court refers to simply as the complaint, McDonald brings claims under 42 U.S.C. § 1983, the Eighth Amendment, and Illinois law. Defendants move to dismiss three counts for failure to state a claim upon which relief can be granted. For the following reasons, the court grants the motion in part and denies it in part.

         I. BACKGROUND

         This case is a partial sequel to McDonald v. Wexford Health Sources, Inc., No. 1:09-cv- 04196 (N.D. Ill.). See generally McDonald v. Wexford Health Sources, Inc., No. 09 C 4196, 2015 WL 3896929, at *1-4 (N.D. Ill. June 23, 2015) (summarizing claims and evidence at summary judgment). McDonald names two defendants in this case: Wexford Health Sources, Inc. (“Wexford”) and Dr. Saleh Obaisi (“Obaisi”). Under contract with the Illinois Department of Corrections, Wexford provides medical care to Stateville prisoners, FAC ¶ 5, and Obaisi “is responsible for implementing, overseeing, and supervising medical care at Stateville, ” FAC ¶ 6. McDonald sues Obaisi in his individual capacity. FAC ¶ 6. The prior McDonald case concerned McDonald's medical care during an earlier period in which Dr. Parthasarathi Ghosh served as Stateville's medical director. See FAC at 4 n.2.

         The court takes the following facts from the complaint and accepts them as true for purposes of deciding defendants' motion. McDonald suffered severe lower back pain for years before 2013. He “consistently requested medical attention from Wexford staff to reduce or eliminate the pain.” FAC ¶ 7. By April 2013, the pain had begun to spread to his extremities. FAC ¶ 8. Obaisi considered ordering two diagnostic tests, an MRI (magnetic resonance imaging) and EMG (electromyography), to diagnose McDonald but decided not to do so. FAC ¶ 8. Another Wexford employee whose identity is unknown reevaluated McDonald on August 30, 2013. FAC ¶ 9. The unknown doctor recommended that Obaisi reevaluate McDonald and scheduled an appointment with Obaisi, but the reevaluation never took place. FAC ¶ 9. Almost two years later, on July 28, 2015, Obaisi ordered an MRI and EMG. FAC ¶ 10. The findings in the report on the MRI, which Wexford received in September 2015, were “significant, ” prompting Wexford doctors “to “suspect surgery will be necessary sooner rather than later.” FAC ¶ 11 (quoting unspecified source). Another unknown Stateville doctor recommended that McDonald receive a neurosurgical consultation. FAC ¶ 11.

         McDonald alleges that Wexford staff provided improper and inadequate care before and after he was diagnosed with spinal stenosis. FAC ¶¶ 12-14. For instance, Obaisi and other Wexford doctors sometimes prescribed pain medication for McDonald, but Wexford employees, such as nurses, refused to distribute it to him. FAC ¶ 13. McDonald asked them why, but he got no answer. FAC ¶ 13. He had yet to receive surgery when he filed his first amended complaint. FAC at 1.

         II. LEGAL STANDARD

         A Rule 12(b)(6) motion “tests the sufficiency of the complaint, not the merits of the case.” McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012). A complaint need only set forth a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         To survive a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this standard when its factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subject-matter of the case to present a story that holds together.”). For purposes of a motion to dismiss, the court takes all facts alleged by the plaintiff as true and draws all reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations that merely recite the elements of a claim are not entitled to this presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).

         III. § 1983 CLAIMS

         In 42 U.S.C. § 1983, Congress created a damages remedy for violations of federal law by a person acting “under color of” state law. See, e.g., Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017); Brown v. Randle, 847 F.3d 861, 865 (7th Cir. 2017). In count seven, McDonald seeks to impose § 1983 liability on Wexford, a private corporation which has been contracted by the Illinois Department of Corrections to provide medical services at Stateville, under the doctrine of respondeat superior. Count three aims to hold Wexford and Obaisi liable under a “supervisory liability” theory.

         A. Respondeat Superior For Wexford (Count Seven)

         The well-established doctrine of respondeat superior “makes employers liable for their employees' actions within the scope of their employment.” Shields v. Ill. Dep't of Corr., 746 F.3d 782, 793 (7th Cir. 2014) (citing Restatement (3d) of Agency § 2.04 (2006)) (other citations omitted). McDonald asserts that Wexford is vicariously liable for its employees' actions, including Obaisi's, under Illinois law. FAC ¶¶ 56-57. Defendants do not take issue with McDonald's use of respondeat superior for his claims under Illinois law. But, Wexford contends, McDonald cannot use respondeat superior to impose vicarious liability on it under § 1983. See FAC ¶ 58 (alleging that “Wexford, as a private corporation acting under color of state law, should additionally be held liable under 42 U.S.C. § 1983 for the conduct of its employees acting within the scope of their employment”).

         As McDonald concedes, Wexford wins this argument under binding Seventh Circuit precedent. FAC at 15 n.4; Resp. to Mot. to Dismiss 15 (“Resp.”), ECF No. 36. The Seventh Circuit explained in Shields, supra, that its “controlling precedents” hold that “a private corporation cannot be held liable under § 1983 unless the constitutional violation was caused by an unconstitutional policy or custom of the corporation itself. Respondeat superior liability does not apply to private corporations under § 1983.” Shields, 746 F.3d at 789 (citing Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)). Shields upheld the dismissal of a § 1983 claim against Wexford for this very reason. Id. But the Shields court opined that this rule “deserve[s] fresh consideration, though it would take a decision by [the Seventh Circuit] sitting en banc or pursuant to Circuit Rule 40(e), or a decision by the Supreme Court to overrule” controlling Seventh Circuit precedent. Id.; see also Id. at 789-96; id. at 801 (Tinder, J., concurring in the judgment). Based on this language, McDonald says that he pleaded his ยง 1983 respondeat superior theory to preserve it for possible appeal. Resp. 15. Because this court must follow binding Seventh Circuit precedent until the Seventh Circuit or Supreme Court tells ...


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