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Xavier v. Myers

United States District Court, S.D. Illinois

September 16, 2019

PACHECO XAVIER, Plaintiff,
v.
DR. MYERS, and WEXFORD HEALTH SOURCES, INC., Defendants.

          MEMORANDUM AND ORDER

          J. Phil Gilbert United States District Judge.

         Plaintiff Pacheco Xavier, an inmate of the Illinois Department of Corrections (“IDOC”) who is currently incarcerated at Centralia Correctional Center (“Centralia”), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In the Complaint, Plaintiff alleges Defendants at Pinckneyville Correctional Center (“Pinckneyville”) were deliberately indifferent to his serious medical needs under the Eighth Amendment. Plaintiff seeks monetary damages.

         This case is now before the Court for preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b).

         The Complaint

         In his Complaint, Plaintiff makes the following allegations: While housed at Pinckneyville in November 2017, Plaintiff felt a sharp pain in his lower abdomen while cleaning his cell. (Doc. 1, p. 3). A large knot formed. He sought medical treatment from nurses on several occasions and they informed him that he had a hernia and that they would monitor his condition. They also told him that he needed surgery to repair the hernia. He eventually saw Dr. Myers for his condition and Dr. Myers also stated that he would monitor his condition but did not provide him with further care. (Id.). Dr. Myers also refused to provide him with any pain medication. He was provided with milk of magnesia and stool softeners as the hernia made it difficult for him to defecate. (Id.). According to Plaintiff's grievance, he was eventually referred to an outside specialist who determined that his hernia required surgical repair. (Id. at p. 9). Despite the specialist's recommendation, Dr. Myers repeatedly denied Plaintiff's request for surgery. (Id. at p. 3). Dr. Myers denied surgery three times before the procedure was finally approved by Wexford Health Sources, Inc. (“Wexford”). During that time period, Plaintiff continued to suffer from pain and difficulties with his bowels. (Id. at pp. 3, 9). Plaintiff had surgery to repair his hernia on May 29, 2019. (Id. at p. 7).

         Discussion

         Based on the allegations in the Complaint, the Court finds it convenient to designate the following single count in this pro se action:

Count 1: Dr. Myers and Wexford Health Sources, Inc. were deliberately indifferent under the Eighth Amendment to Plaintiff's hernia pain.

         The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the Complaint but not addressed in this Order should be considered dismissed without prejudice as inadequately pled under the Twombly pleading standard.[1]

         Plaintiff states a viable claim for deliberate indifference against Dr. Myers for delaying Plaintiff's surgery to repair his hernia and for failing to provide him with pain medication. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (delay in treatment).

         However, Plaintiff fails to state a claim against Wexford for deliberate indifference. Wexford is a private corporation that employs prison medical providers to provide medical care at the prison. The corporation cannot be liable on this basis alone because respondeat superior liability is not recognized under § 1983. Shields v. Illinois Dept. of Corr., 746 F.3d 782 (7th Cir. 2014) (citing Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)). Wexford will only be liable for deliberate indifference if an unconstitutional policy or practice of the corporation caused the constitutional deprivation. Plaintiff fails to cite to any such policy or practice. As such, Wexford is DISMISSED without prejudice from Count 1.

         Motion for Counsel

         In his Motion for Counsel (Doc. 3), Plaintiff indicates that he is not currently represented by an attorney. He does not, however, indicate whether he has contacted any attorneys seeking representation. Based on this lack of evidence the Court cannot determine if Plaintiff has made a reasonable attempt to obtain counsel. Should Plaintiff choose to move for recruitment of counsel at a later date, the Court directs Plaintiff to (1) contact at least three attorneys regarding representation in this case prior to filing another motion, (2) include in the motion the name and addresses of at least three attorneys he has contacted, and (3) if available, attach the letters from the attorneys who declined representation. Plaintiff should also include in his motion a specific statement as to why he believes recruitment of counsel is necessary in his case. Plaintiff's motion for counsel (Doc. 3) is DENIED without prejudice.

         D ...


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