United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jorge Alonso United States District Judge.
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
following facts are from plaintiff's third amended
complaint, and the Court takes them as true.
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.
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
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.
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.
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.
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.
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.
on these allegations, plaintiff brings ten counts: one count
each against nine named defendants and a tenth count against
unnamed Doe defendants.
STANDARD ON A MOTION TO DISMISS
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.
Statute of limitations
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).
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. ...