United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
Reona J. Daly, United States Magistrate Judge.
matter has been referred to United States Magistrate Judge
Reona J. Daly by United States District Judge David R.
Herndon pursuant to 28 U.S.C. § 636(b)(1)(B), Federal
Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a
Report and Recommendation on the Motion to Dismiss (Doc. 52)
filed by Defendant Wexford Health Sources, Inc. Plaintiff
timely filed a Response (Doc. 55). It is
RECOMMENDED that the District Court
ADOPT the following findings of fact and
conclusions of law and Defendant's Motion be
GRANTED IN PART and DENIED IN PART.
April 25, 2018, Plaintiff, through counsel, filed an Amended
Complaint pursuant to 42 U.S.C. § 1983, the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq., and the Rehabilitation Act, 29 U.S.C.
§794 et seq., alleging his rights were violated while he
was incarcerated at Lawrence Correctional Center
(“Lawrence”). Plaintiff, a partial quadriplegic,
alleges defendants violated his rights by ignoring pleas for
assistance which resulted in him breaking his arm and
refusing to properly treat his broken arm. Although his
claims arose during his incarceration, Plaintiff was not a
"prisoner" on the date he filed the action, as that
term is defined by 28 U.S.C. § 1915A(c), so threshold
review pursuant to § 1915A(a)-(b) was unwarranted.
Because Plaintiff paid his full filing fee, a frivolity
review pursuant to 28 U.S.C. § 1915(e)(2) was also
unnecessary (Doc. 4). Plaintiff is currently proceeding on
Count 1: Defendant IDOC (American with
Count 2: Defendant IDOC (Rehabilitation Act)
Count 3: Defendants Elizabeth Tredway and
John Coe (Eighth Amendment - Deliberate Indifference to
Serious Medical Need)
Count 4: Defendant John Coe (Eighth
Amendment - Deliberate Indifference to Serious Medical Need)
Count 5: Defendant Wexford (Eighth Amendment
Deliberate Indifference - Respondeat Superior)
Count 6: Defendant Wexford (Eighth Amendment
Deliberate Indifference - Institutional Policy or Custom)
Wexford filed a Motion to Dismiss Counts Five and Six.
Defendant argues Count Five should be dismissed because
Plaintiff cannot state a respondeat superior claim against
Wexford under 42 U.S.C. § 1983. Defendant argues Count
Six should be dismissed because Plaintiff's allegations
fail to assert a valid Monell claim. Plaintiff's
counsel acknowledges that there is Seventh Circuit precedent
holding respondeat superior liability does not apply to
private corporations; however, he argues those cases are
erroneous and he would like to preserve the issue for appeal.
Plaintiff relies on dicta from the Seventh Circuit's
decision in Shields v. Ill. Dep't
Corr., 746 F.3d 782');">746 F.3d 782 (7th Cir. 2014). The
Court in Shields discussed the possibility of
extending vicarious liability under 42 U.S.C. § 1983 to
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis, but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.