United States District Court, C.D. Illinois
MERIT REVIEW-AMENDED COMPLAINT
BILLY MCDADE UNITED STATES DISTRICT JUDGE.
proceeding pro se, files an amended complaint under
42 U.S.C. § 1983, alleging deliberate indifference to
his serious medical needs at the Pontiac Correctional Center
(“Pontiac”). The case is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. In reviewing
the Complaint, the Court accepts the factual allegations as
true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649-51 (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. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted).
While the pleading standard does not require “detailed
factual allegations”, it requires “more than an
accusation.” Wilson v. Ryker, 451 Fed.Appx.
588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
alleges that on August 5, 2016, he was seen at Pontiac by
Defendant Dr. Russell, an optometrist. Plaintiff had a
history of cataract in his left eye since 2011 and claims to
have poor vision as a result. Plaintiff has allegedly seen
several specialists who have recommended surgery, and
Defendant Russell apparently concurred. Defendant told
Plaintiff, however, that his condition did not meet the
Wexford criteria for surgical correction and that the
procedure would not be approved.
also claims that the vision in his right eye “goes
away” at times, causing his left eye difficulties to be
more debilitating. The Court interprets Plaintiff's
reference to his right eye as supportive of his left eye
damages claim, rather than as an independent claim regarding
the right eye.
though a private corporation, has potential liability for
constitutional infringement under Monell v. New York City
Department of Social Services, 436 U.S. 658, 691-92
(1978). This is so, if the alleged injury results from the
application of an unconstitutional policy or practice
promulgated or allowed by Wexford. McCauley v. City of
Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (to
adequately plead Monell liability, allegations
“must allow [the court] to draw the reasonable
inference that the [defendant] established a policy or
practice” which caused the injury.) Here, Plaintiff
asserts that he has not received the surgery as Wexford
applies certain criteria to surgical candidates and his
condition does not meet the criteria. This is enough to
establish a colorable claim of an unconstitutional policy or
practice on the part of Wexford.
also names Defendant Russell though these claims are unclear.
A physician may be liable for the failure to follow a
specialist's recommendations if that failure is not based
on sound medical judgment. See Petties v. Carter,
836 F.3d 722, 729 (7th Cir. 2016). “Allegations that a
prison official refused to follow the advice of a medical
specialist for a non-medical reason may at times constitute
deliberate indifference.” Perez v. Fenoglio,
792 F.3d 768, 778 (7th Cir. 2015). In this case, however,
Plaintiff does not assert that it was Defendant Russell who
denied the surgery, or that Russell had the authority to
schedule the surgery over Wexford's denial. See
Lambert v. Adler, 587 Fed.Appx. 976, 977-78 (7th Cir.
2014) (lone physician not liable for failure to refer, where
decision was made by the Prior Authorization Committee).
Plaintiff does not allege enough to establish that Defendant
Russell was deliberately indifferent in not authorizing
surgery where he does not assert that Defendant had the
authority to do so. Plaintiff, however, will be given the
opportunity to replead as to Defendant Russell.
IS THEREFORE ORDERED:
1. This case shall proceed solely on the Eighth Amendment
Monell claim against Defendant Wexford, identified
herein. Any claims not identified will not be included in the
case, except in the Court's discretion upon motion by a
party for good cause shown, or by leave of court pursuant to
Federal Rule of Civil Procedure 15. Defendant Russell is
DISMISSED though Plaintiff will be given an opportunity,
within 30 days, to replead. If Plaintiff does so, he is to
identify the filing as a Second Amended Complaint and is to
include all claims against all Defendants without reference
to a prior pleading.
2. Plaintiff files , a motion for recruitment of pro
bono counsel but does not indicate that he attempted to
secure counsel on his own. Pruitt v. Mote, 503 F.3d
647, 654-55 (7th Cir. 2007).  is DENIED. In the event
that Plaintiff renews his motion for appointment of counsel,
he is to provide copies of the letters sent to, and received
from, prospective counsel.
3. Plaintiff's Motions for Status ,  and ,
are rendered MOOT.
4. The Clerk is directed to send to each Defendant pursuant
to this District's internal procedures: 1) a Notice of
Lawsuit and Request for Waiver of Service; 2) a Waiver of
Service; 3) a copy of the Complaint; and 4) a copy of this
5. If a Defendant fails to sign and return a Waiver of
Service to the Clerk within 30 days after the Waiver is sent,
the Court will take appropriate steps to effect formal
service on that Defendant and will require that Defendant pay
the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2). If a Defendant no longer works at
the address provided by Plaintiff, the entity for which
Defendant worked at the time identified in the Complaint
shall provide to the Clerk Defendant's current work
address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of
effecting service. Documentation of forwarding addresses will
be maintained only by the Clerk and shall not be maintained
in the public docket nor disclosed by the Clerk.
6. Defendants shall file an answer within the prescribed by
Local Rule. A Motion to Dismiss is not an answer. The answer
it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the
issues and claims identified in this Order.
7. Plaintiff shall serve upon any Defendant who has been
served, but who is not represented by counsel, a copy of
every filing submitted by Plaintiff for consideration by the
Court, and shall also file a certificate of service stating
the date on which the copy was mailed. Any paper received by
a District Judge or Magistrate Judge that has not been filed
with the ...