United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH, U.S. District Judge.
proceeds pro se from his incarceration in the Danville
Correctional Center. His Complaint is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. This section
requires the Court to identify cognizable claims stated by
the Complaint or dismiss claims that are not
cognizable. In reviewing the complaint, the Court
accepts the factual allegations as true, liberally construing
them in Plaintiff's favor and taking Plaintiff's pro
se status into account. Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2013). However, conclusory
statements and labels are insufficient. Enough facts must be
provided to "'state a claim for relief that is
plausible on its face.'" Alexander v. U.S.,
721 F.3d 418, 422 (7thCir. 2013)(quoted cite
alleges injurious medical care during his incarceration in
the Hill Correctional Center. Plaintiff had back pain caused
by pre-existing problems such as “degenerative disc
disease, scoliosis, [chronic wedge compression], and
compressed discs.” (Compl. p. 5.) On June 22, 2017, Dr.
Bautista prescribed physical therapy, allegedly knowing that
Plaintiff would need to be scheduled to see an outside
physical therapist to learn the exercises properly. On June
26, 2017, Plaintiff arrived at the health care unit for his
physical therapy. Defendant Nurse Parrish asked Plaintiff if
he had been sent out to receive instructions from the
physical therapist. Plaintiff replied no and further stated
that he had not been instructed on how to perform the
physical therapy. Instead of sending Plaintiff to the
physical therapist, Dr. Bautista wrote a list of exercises
for the Plaintiff. Nurse Parrish instructed Plaintiff on how
to perform the exercises using an exercise band, but
Plaintiff felt worse. During the second physical therapy
appointment, Plaintiff “felt a severe pain and shock
run through my body, back, and legs, causing me to hit the
floor, shaking uncontrollably . . . .” (Compl. p. 7.)
Dr. Bautista came in and allegedly admitted that Plaintiff
should never have been using the exercise band. Plaintiff
allegedly still suffers lingering effects from the incident.
states an arguable Eighth Amendment claim for deliberate
indifference to Plaintiff's serious medical needs against
Defendants Dr. Bautista and Nurse Parrish. Negligence or a
mistake is not deliberate indifference, but at some point
alleged incompetence can rise to such a substantial departure
from accepted practice that deliberate indifference can be
inferred. Wexford Health Sources, Inc., cannot be liable
solely as an employer. Wexford is liable only if an
unconstitutional policy or practice caused the deliberate
indifference by Dr. Bautista and Nurse Parrish. However,
Wexford will stay in the case until the record is developed
as to why Dr. Bautista and Nurse Parrish did not send
Plaintiff to a physical therapist.
also sues an unnamed health care administrator, but he does
not say how this individual was personally involved.
Additionally, Plaintiff must identify the name of this person
before he or she can be served. At this point, the unnamed
health care administrator will be dismissed, without
prejudice to filing an amended complaint, which should
include an explanation of how the health care administrator
was personally involved and that person's name, if known.
If Plaintiff files an amended complaint, the proposed amended
complaint must include all claims against all Defendants.
also pursues a state law medical malpractice claim, but to do
so he must attach the affidavit and report required by 735
IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28 U.S.C.
§ 1915A, the Court finds that Plaintiff states an Eighth
Amendment claim against Defendants Bautista, Parrish, and
Wexford Health Sources, Inc. This case proceeds solely on the
claims identified in this paragraph. Any additional claims
shall not be included in the case, except at the Court's
discretion on motion by a party for good cause shown or
pursuant to Federal Rule of Civil Procedure 15.
Plaintiff's malpractice claim is dismissed without
prejudice to refiling with the affidavit and report required
by 735 ILCS 5/2-622(a).
Defendant “Health Care Administrator” is
dismissed, without prejudice, for failure to state a claim.
case is now in the process of service. Plaintiff is advised
to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will
generally be denied as premature. Plaintiff need not submit
any evidence to the Court at this time, unless otherwise
directed by the Court.
Court will attempt service on Defendants by mailing each
Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants
have not filed Answers or appeared through counsel within 90
days of the entry of this order, Plaintiff may file a motion
requesting the status of service. After Defendants have been
served, the Court will enter an order setting discovery and
dispositive motion deadlines.
respect to a Defendant who no longer works at the address
provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be
used only for effectuating service. Documentation of
forwarding addresses shall be retained only by the Clerk and
shall not be maintained in the public docket nor disclosed by
Defendants shall file an answer within 60 days of the date
the waiver is sent by the Clerk. A motion to dismiss is not
an answer. The answer should include all defenses appropriate
under the Federal Rules. The answer and subsequent pleadings
shall be to the issues and claims stated in this Opinion. In
general, an answer sets forth Defendants' positions. The
Court does not rule on the merits of those positions ...