United States District Court, C.D. Illinois, Rock Island Division
DARROW UNITED STATES DISTRICT JUDGE
the Court is Defendant Wexford Health Sources, Inc.'s
(“Wexford”) motion to dismiss Count II of
Plaintiff Howard Frye's Complaint, ECF No. 13. For the
following reasons, the motion is GRANTED.
September 2014, Frye was incarcerated at Hill Correctional
Center, a prison operated by the Illinois Department of
Corrections (“IDOC”) in Galesburg, Illinois.
During this month, he developed a perirectal abscess on his
right buttock. The condition was painful, and Frye complained
to Defendant Sood, a doctor employed by Wexford. Wexford
contracts with IDOC to provide medical care to inmates.
provided Frye with a drug, Bactrim, to treat the infection.
However, he did not provide further treatment, like draining
the abscess. Frye alleges that this was because he was
scheduled to be released from prison in October of 2014, the
next month. Frye was duly released on October 10, and went to
Trinity Hospital in Moline, Illinois for further treatment.
The hospital admitted him and drained the abscess. Frye had
to return to the hospital “throughout” October to
receive a course of intravenous antibiotics to treat the
abscess and the infection that had caused it.
sued Wexford, Sood, and the State of Illinois on September
12, 2016, ECF No. 1. He alleged (I) that Sood was
deliberately indifferent to his serious medical need in
violation of 42 U.S.C. § 1983 and the Eighth Amendment,
Compl. 2-3; (II) that Wexford promulgated a policy or
practice of denying medical care to inmates like himself in
violation of 42 U.S.C. § 1983 and the Eighth Amendment,
Compl. 3-4; and (III) sought an order requiring the State of
Illinois to indemnify Wexford and Sood for their liability,
id. at 4. On January 31, 2017, Wexford moved to
dismiss Count II.
Legal Standard on a Motion to Dismiss
reviewing a motion to dismiss, a court must accept as true
all well-pleaded facts in the complaint, and draw all
reasonable inferences in favor of the plaintiff. Scanlan
v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012). A court
will dismiss a complaint if it fails to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). In
determining whether such a claim has been stated, a court
should first identify pleadings that “because they are
no more than conclusions, are not entitled to the assumption
of truth.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). It should then take the remaining, well-pleaded
factual allegations, “assume their veracity[, ] and . .
. determine whether they plausibly give rise to an
entitlement to relief.” Id. This means that a
complaint must provide “allegations that raise a right
to relief above the speculative level.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). The
plausibility determination is “a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 679. A complaint must also describe its claims in
sufficient detail to give a defendant “fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)) (alteration in Bell Atlantic).
argues that allegations against it must be dismissed because
Frye has failed to plead a claim that plausibly gives rise to
an entitlement to relief. Mem. Supp. Mot. Dismiss 3-7, ECF
No. 14. The Court agrees.
U.S.C. § 1983 creates civil liability for anyone who
“under color of any statute, ordinance, regulation,
custom, or usage . . . subjects . . . any citizen of the
United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws.” Ordinarily, the liberties secured by the Bill of
Rights create no positive obligation on behalf of state
agents to act or intervene to provide help or medical
assistance. See DeShaney v. Winnebago County Dep't of
Social Services, 489 U.S. 189, 196 (1989). However,
courts have long recognized an exception: when the government
incarcerates people, rendering them unable to protect
themselves or to provide for their own health, the Eighth
Amendment's ban on cruel and unusual punishment prohibits
the government from acting with deliberate indifference to
serious threats to their health or safety. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). Private companies that
contract with the government like Wexford, and their
employees, can act under color of state law, and have
repeatedly been found by courts in this circuit to do so in
the context of providing medical services to inmates.
See, e.g., Glisson v. Indiana Dep't of
Corr., 849 F.3d 372, 378-79 (7th Cir. 2017); Shields
v. Illinois Dep't of Corr., 746 F.3d 782, 789 (7th
are liable for constitutional harms under § 1983 only if
their policy or custom causes the harm, or the harm is caused
by someone with final policymaking authority. Thomas v.
Cook Cty. Sheriff's Dep't, 604 F.3d 293, 303
(7th Cir. 2010) (citing Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658, 690 (1978)).
That is to say that the theory of respondeat superior
liability, in which an employer is liable for the torts of
his employees, does not apply to constitutional torts
committed by municipal agents under § 1983. Id.
As the law in this circuit stands, the same is true of
private companies who contract with state agencies and act
under color of law: the companies may only be liable if a
policy, custom, or person with final policymaking authority
causes the harm. See Iskander v. Vill. of Forest
Park, 690 F.2d 126, 128 (7th Cir. 1982). But see
Shields, 746 F.3d at 794-95 (questioning whether it
makes sense to shield corporations from respondeat superior
liability under § 1983).
does not contest that it contracted with Illinois, and that
as a result, it and Sood acted under color of law in
providing treatment to Frye. Rather, Wexford argues, Frye has
made only sketchy and conclusory allegations that Wexford