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Malone v. Wexford Healthcare Services, Inc.

United States District Court, S.D. Illinois

June 25, 2018




         This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel 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 for Preliminary Injunction filed by Plaintiff on September 6, 2017 (Doc. 2), the Motion to Dismiss filed by Defendant Wexford on December 18, 2017 (Doc. 33), and the Motion to Dismiss filed by Plaintiff on December 22, 2017 (Doc. 40). For the reasons set forth below, it is RECOMMENDED that the Motion for Preliminary Injunction be GRANTED IN PART, that Wexford's Motion to Dismiss be DENIED, that Plaintiff's Motion to Dismiss be MOOTED, and that the Court adopt the following findings of fact and conclusions of law.


         Plaintiff, William A. Malone, is an inmate incarcerated at the Pinckneyville Correctional Center. He is a three striker (actually a ten striker) in that he has filed more than three lawsuits that have been deemed frivolous.[1] However, he has been permitted to proceed in this suit under the imminent danger exception contained in 28 U.S.C. § 1915(g). In particular, he has been permitted to proceed on one count of deliberate indifference to a serious medical need, to wit, a defective hip replacement and associated conditions, against Wexford Health Sources and Christine Brown, the healthcare unit administrator.

         Along with his complaint, Plaintiff filed a motion for preliminary injunction (Doc. 2). This matter was set for a hearing on the motion prior to Defendants' appearance on October 23, 2017 (Doc. 19). Defendants then filed a motion to dismiss arguing that Plaintiff is not in imminent danger and that his in forma pauperis status should be revoked for failing to disclose his entire litigation history. Plaintiff's “motion to dismiss” is in fact a response to Defendants' motion and will be treated as such. A hearing on the motion to dismiss was held on June 4, 2018 in which Plaintiff appeared by video-conference and Defendants appeared by counsel.

         Findings of fact

         According to Plaintiff's claims and the information provided at the two hearings, he had total bilateral hip replacement surgery on March 3, 2005 (left side) and May 31, 2005 (right side) that resulted in the placement of “30 lbs of steel.” Ever since the surgeries, Plaintiff has been experiencing increasing pain and functional limitations. He states that in 2007 or 2008, he was told that he needed “revision” surgery because of problems with the implanted steel. Plaintiff believes that he suffers from metallosis or metal poisoning caused by the implants. He has not had any other surgery on his hips, including the “revision” surgery.

         Immediately prior to filing the lawsuit, Plaintiff stated that his motor functions were deteriorating, that he had blood in his stool, that his eyesight was failing, that he would faint, that he had untreated asthma, and that he was not provided medical care. He also suffered from nausea and significant weight loss. He had two urinary tract infections (due in part to lack of hygiene products) in addition to 4 other bacterial infections in his ears (which caused temporary deafness). He suffered from lack of sleep and sleep apnea. These events happened at Pinckneyville CC. Plaintiff was transferred to Menard Correctional Center on January 8, 2018. Plaintiff states that he lost 70 pounds since coming to Menard. He can do no exercises or physical therapy and his pain is so bad that he cannot feel when he has bowel movements or when he has to urinate (he has had a catheter in place since 2012). Plaintiff requests an examination by a specialist.

         A month prior to the filing of the Complaint, on July 27, 2017, Plaintiff had an x-ray performed. This x-ray showed no fracture, dislocation or condition other than arthritis (Doc. 38, p. 2). His treating physician at the time, Dr. Alberto Butalid prescribed pain and anti-inflammatory medication to treat his hip complaints (Id.). Dr. Butalid believes Plaintiff's condition can be managed with medication and physical therapy (Id.). Plaintiff testified that he didn't always get the medications prescribed and that they have not been helpful. Plaintiff notes that he has gone through a number of rounds of physical therapy but none have been helpful. He had another x-ray on January 18, 2018 while under the care of Dr. Siddiqui. This x-ray likewise did not show a problem with Plaintiff's implants.

         The Court finds Plaintiff credible, based on his demeanor at the hearing, in his statements regarding the suffering occasioned at the time that he filed his complaint and that he currently is experiencing. Plaintiff genuinely appeared to be concerned and distressed about his medical condition. He also appeared to weigh closer to 200 pounds than the 295 pounds reported in his medical records from the Summer of 2017. While Plaintiff has self-diagnosed metalossis as the culprit of his deteriorating medical state, this Court finds that he has experienced and is experiencing significant pain and functional limitations that may be the result of his implants. This Court further finds that neither Dr. Butalid nor Dr. Siddiqqui are specialized or qualified in evaluating and treating Plaintiff's orthopedic needs. The medical treatment so far, consisting of x-rays, sporadic pain medication, and on-going physical therapy appear to be unhelpful. While Dr. Butalid states that Plaintiff's medical condition had not changed significantly in the last half of 2017, this is contrary to Plaintiff's testimony (which the Court finds credible). Defendants further provided no evidence contradicting Plaintiff's claims of pain and functional limitations and nothing to explain his significant weight loss.

         Conclusions of Law

         Preliminary Injunction

         A preliminary injunction is an “extraordinary and drastic remedy” for which there must be a “clear showing” that Plaintiff is entitled to relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A Charles Alan Wright, Arthur R Miller, & Mary Kay Kane, Federal Practice and Procedure § 2948 (5th ed. 1995)). The purpose of such an injunction is “to minimize the hardship to the parties pending the ultimate ...

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