United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
B. Gottschall United States District Judge
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.
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.
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.
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.
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).
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).
§ 1983 CLAIMS
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.
Respondeat Superior For Wexford (Count Seven)
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
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 § 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 ...