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Dixon v. Obaisi

United States District Court, N.D. Illinois, Eastern Division

August 1, 2019

WILLIE DIXON, Plaintiff,
v.
DR. SALEH OBAISI, DR. FISHER, DR. FE FUENTES, REMONA L. LAWLESS, DR. ADRIEN FEINERMAN, DR. STEPHEN RITZ, DR. THOMAS M. LEHMAN, DR. ELAZEGUL, WEXFORD HEALTH SOURCES, INC., and DOES, Defendants.

          MEMORANDUM OPINION AND ORDER

          Hon. Jorge Alonso United States District Judge.

         Plaintiff Willie Dixon (“Dixon”) has filed a ten-count third-amended complaint, in which he alleges that defendants were deliberately indifferent to his medical needs while he was incarcerated at two prisons over the course of more than twenty years. Before the Court are six motions to dismiss plaintiff's claims.

         I. BACKGROUND

         The following facts are from plaintiff's third amended complaint, and the Court takes them as true.

         In the summer of 1993, while he was incarcerated at Stateville Correctional Center (“Stateville”), plaintiff injured his left shoulder while playing softball. Plaintiff suffered “incredible pain, ” and a medical technician gave him medication for pain. For the next decade at Stateville, plaintiff continued to experience pain from the injury. Twice (once on September 16, 1997 and once on October 31, 1997) plaintiff requested a magnetic resonance imaging (“MRI”) test of his shoulder injury. Plaintiff was, instead, given an x-ray examination. Plaintiff did not file a grievance with respect to his medical care at Stateville before 2003, because he did not think it would help. Nonetheless, his shoulder pain continued and began to affect his left arm and thumb.

         In 2003, plaintiff was transferred to Menard Correctional Center (“Menard”). During his time at Menard, plaintiff continued to suffer from pain in his shoulder. He was given medication for pain. When he requested an MRI (twice in December 2008 and once in March 2009), he was denied. On August 5, 2008, plaintiff met with defendant Remona Lawless (“Lawless”), a nurse. Plaintiff asked Lawless for more medical treatment and for help with managing his pain. Lawless gave plaintiff a prescription for pain pills. On December 9, 2008, when plaintiff spoke to defendant Fe Fuentes (“Dr. Fuentes”), Dr. Fuentes told plaintiff that, because his “injury was an old injury it would come and go.” Plaintiff told Dr. Fuentes that his pain never goes away, to which Dr. Fuentes responded that plaintiff should sleep on his right side rather than his left.

         In 2011, plaintiff transferred back to Stateville, where he was treated by defendant Saleh Obaisi (“Dr. Obaisi”), among others. Plaintiff complained to Dr. Obaisi about constant pain in his shoulder, arm and thumb. Plaintiff requested (on October 21, 2012 and March 5, 2014) an MRI. Instead of an MRI, Dr. Obaisi ordered, on April 4, 2014, a steroid shot for plaintiff's shoulder. The steroid shot did not alleviate plaintiff's pain, and plaintiff requested additional options for pain management.

         In 2015, plaintiff received approval for an MRI. Plaintiff does not say which health care provider ordered the MRI, but it was approved by defendant Stephen Ritz (“Dr. Ritz”), who was employed by defendant Wexford Health Sources, Inc. (“Wexford”) as its Corporate Medical Director of Utilization. Wexford contracts with Illinois Department of Corrections to provide medical care to prisoners. Dr. Ritz was responsible for, among other things, approving or denying requests for particular treatment and diagnostic tests, including MRIs.

         Plaintiff's MRI test was performed at an outside medical facility on October 19, 2015. Dr. Obaisi received the results on October 28, 2015. Once he saw the results of the MRI, Dr. Obaisi diagnosed plaintiff with damage to his cervical vertebral column. Dr. Obaisi ordered an appointment with an outside specialist, and Dr. Ritz approved the order. Dr. Obaisi did not send the MRI results to the outside specialist.

         Plaintiff met with outside specialists at least twice. At the first visit (the date of which is not clear from the complaint), a physician told plaintiff his arm pain might have been caused by his original shoulder injury. At the second visit, on March 11, 2016, the physician told plaintiff he could do nothing without the MRI results.

         Plaintiff was scheduled for surgery on November 4, 2016. Plaintiff took the results of his MRI with him to the surgery. During the surgery, doctors fused plaintiff's spine. After the surgery, plaintiff requested a follow-up appointment with an outside doctor. Dr. Ritz denied the request on December 12, 2016. Plaintiff had follow-up appointments on May 12, 2017 and April 27, 2018. At the April 27, 2018 visit with the specialist, plaintiff was prescribed physical therapy. Back at Stateville, defendant Dr. Elazegul failed to put in a request for physical therapy.[1]

         Based on these allegations, plaintiff brings ten counts: one count each against nine named defendants and a tenth count against unnamed Doe defendants.

         II. STANDARD ON A MOTION TO DISMISS

         In considering a motion to dismiss, the Court accepts as true the factual allegations in the complaint and draws permissible inferences in favor of the plaintiff. Boucher v. Finance Syst. of Green Bay, Inc., 880 F.3d 362, 365 (7th Cir. 2018). The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must “give the 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)). A complaint need not provide detailed factual allegations, but mere conclusions and a “formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. To survive a motion to dismiss, a claim must be plausible. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Allegations that are as consistent with lawful conduct as they are with unlawful conduct are not sufficient; rather, plaintiffs must include allegations that “nudg[e] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         III. DISCUSSION

         A. Statute of limitations

         A number of defendants move to dismiss plaintiff's claims as barred by the statute of limitations. Failure to comply with a statute of limitations is an affirmative defense. See Stuart v. Local 727, Int'l Bhd. of Teamsters, 771 F.3d 1014, 1018 (7th Cir. 2014); Fed.R.Civ.P. 8(c)(1). A plaintiff need not plead around an affirmative defense, and the Court may dismiss on the basis of an affirmative defense only where a plaintiff alleges, and thus admits, the elements of the affirmative defense. Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613- 14 (7th Cir. 2014); United States Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003).

         The events plaintiff alleges in his complaint commenced in 1993, and plaintiff filed this suit on October 10, 2017. Plaintiff seeks relief under § 1983 for alleged deliberate indifference, and such claims are governed by Illinois's two-year statute of limitations for injuries. Wilson v. Wexford Health Sources, Inc., __ F.3d __, __, Case No. 18-2499, 2019 WL 3369100 at *1 (7th Cir. ...


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