United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Phil Gilbert United States District Judge.
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.
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).
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).
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.
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
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).
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
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