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Tully v. Wexford Health Source

United States District Court, S.D. Illinois

October 2, 2019

BRIAN TULLY, #Y27811, Plaintiff,



         Plaintiff Brian Tully, an inmate of the Illinois Department of Corrections (“IDOC”), who is currently incarcerated at Lawrence Correctional Center (“Lawrence”), brings this civil rights action pursuant to 42 U.S.C. § 1983. Tully claims that Defendants have provided him inadequate medical treatment regarding a shoulder injury he sustained prior to incarceration. He seeks monetary damages and injunctive relief in the form of shoulder replacement surgery.

         The Court must review the Complaint under 28 U.S.C. § 1915A. Under Section 1915A, any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or requests money damages from a defendant who by law is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se Complaint are to be liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         The Complaint

          Tully makes the following allegations in the Complaint (Doc. 1): Prior to incarceration, he received partial shoulder surgery in February 2017. Two months following surgery, he reinjured the shoulder and visited a specialist who recommended that the shoulder be replaced. Because he was arrested later that same month, Tully did not receive the surgery. Upon admission to Lawrence, he notified medical staff of increased pain and reduced mobility in his shoulder. He was referred to an outside doctor who told him that he was going to receive shoulder replacement. Dr. Ritz, who is employed by Wexford Health Sources, approved the recommendation, but as of March 2019, the surgery had still not been scheduled. Id. at p. 6.

         Tully informed the chief medical officer at Lawrence, Dr. Pittman, that his surgery had not been scheduled, and she told him there was nothing she could do other than to extend his physical therapy. His physical therapy, however, was wrongly scheduled for his back, not his shoulder. Id. at pp. 6, 8.

         Preliminary Dismissal

          As an initial matter, the Court notes that the only allegation against the Director of IDOC, John Baldwin, is that he is ultimately responsible for enforcing inmates' Eighth Amendment right to adequate health care. (Doc. 1, p. 7). A defendant cannot be held liable, however, merely because he or she is an administrator or supervisor. Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). “[T]o be liable under § 1983, the individual defendant must have caused or participated in a constitutional deprivation.” Pepper v. Vill. of Oak Park, 430 F.3d 806, 810 (7th Cir. 2005). And so, because Tully is attempting to hold Baldwin liable solely because he is in a supervisory position, he shall be dismissed without prejudice.


         Based on the allegations in the Complaint, the Court designates a single claim:

Count 1: Eighth Amendment claim against Wexford Health Source and Dr. Pittman for deliberate indifference to Tully's serious medical needs regarding his injured shoulder.

         The parties and the Court will use this designation 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 is considered dismissed without prejudice as inadequately pled under Twombly.[1]

         Prison officials may be liable for an Eighth Amendment violation if they are “deliberately indifferent to prisoners' serious medical needs.” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). A condition is considered sufficiently serious if the failure to treat it could result in the unnecessary and wanton infliction of pain. See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Additionally, “[d]eliberate indifference may occur where a prison official, having knowledge of a significant risk to inmate health or safety, administers ‘blatantly inappropriate' medical treatment, Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007), acts in a manner contrary to the recommendation of specialists, Arnett, 658 F.3d at 753, or delays a prisoner's treatment for non-medical reasons, thereby exacerbating his pain and suffering.” Perez v. Fenoglio, 792 F.3d 768, 777 (7th Cir. 2019)(citing McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).

         Tully's allegations that Dr. Pittman, despite the recommendations of specialists, was deliberately indifferent to his shoulder injury by failing to ensure he received adequate and timely treatment causing increase pain and ...

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