Burns v. Wexford Health Services

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.

         Plaintiff Shaune Burns, an inmate of the Illinois Department of Corrections (“IDOC”) who is currently incarcerated at Lawrence Correctional Center (“Lawrence”), brings this civil action pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights. Plaintiff claims that Defendants have been deliberately indifferent to his serious medical needs by not ensuring that he receives his medications on time.

         The Court dismissed Plaintiff's complaint on September 13, 2019, for failure to state a claim and denied his motion for preliminary injunction. (Doc. 8). Plaintiff has now filed a First Amended Complaint, (Doc. 10), and a Motion to Reinstate his motions for preliminary injunctive relief and appointment of counsel (Doc. 9).

         The First Amended Complaint is now before the Court for preliminary review pursuant to 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 Court must also consider whether any claims are improperly joined and subject to severance or dismissal. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

         The First Amended Complaint

         In the Amended Complaint, Plaintiff alleges the following: He suffers from H. pylori, which is treated by taking the medication Omeprazole. (Doc. 10, p. 3). Without this medication he vomits blood, which is painful and feels like lava, he is unable to keep food down, and has constant intense burning in his throat and chest. (Id. at p. 9). If his illness goes untreated, Plaintiff's condition could progress into cancer. (Id.).

         Plaintiff arrived at Stateville Correctional Center (“Stateville”) on March 2, 2018. (Id. at p. 3). Upon arrival, Plaintiff was seen by doctor John/Jane Doe #2, who told Plaintiff that he was nullifying his current prescription for Omeprazole and writing him a new prescription for Famotidine as treatment for his H. pylori. (Id.). Plaintiff told John/Jane Doe #2 that he had previously been prescribed that medication and it was ineffective causing him sever stomach pain. John/Jane Doe #2 said he would prescribe Plaintiff a stronger dose of Famotidine. (Id. at p. 4). The medication was ineffective and caused Plaintiff severe stomach pain. He discontinued taking the medicine and submitted several sick call slips to John/Jane Doe #2 requesting to be prescribed Omeprazole. (Id. at p. 4, 5). Plaintiff was not called to sick call until March 9, 2018, and John/Jane Doe #2 wrote him a two week prescription for Omeprazole. Plaintiff did not receive his prescription order until he had become so sick that he passed out and was taken to the health care unit and prescribed antibiotics for three weeks. (Id. at p. 4).

         Plaintiff states that, although he submitted a sick call slip on March 2, 2018, he did not receive an evaluation until March 9, 2018, because John/Jane Doe #1 failed to process his sick call request within twenty-four hours and schedule an evaluation within three days of the request being received. (Id. at p. 5).

         When Plaintiff's two week supply of Omeprazole was down to the last week, he put in a request for a refill in accordance with the refill policy of Wexford Health Sources (“Wexford”). (Id. at p. 6). He ran out of the prescription around March 26, 2018, but did not receive a refill until sometime in April. (Id.).

         On April 16, 2018, Plaintiff was transferred to Lawrence. When he arrived at Lawrence, his supply of Omeprazole was taken and given to medical staff. (Id. at p. 6). He went to sick call on April 20, 2018, to submit to a blood test unrelated to his medication issues. (Id. at p. 7). He brought with him a milk carton containing the bloody vomit that he had thrown up that day. (Id.). Plaintiff spoke with John/Jane Doe #4 and explained that he had been sick every day since his arrival because he did not have his prescription. John/Jane Doe #4 said he was only there to take Plaintiff's blood so Plaintiff would have to wait for other nurses to get to Plaintiff's request. John/Jane Doe #4 made Plaintiff leave sick call without any medication. (Id.). After a few more days without his medicine, he filed a grievance on April 22, 2018. (Id. at p. 6). Plaintiff received Omeprazole on May 14, 2018. (Id. at p. 7).

         On May 16, 2019, Plaintiff submitted a refill request for Topiramate, Docusate, Excedrin, and Omeprazole, informing pharmacy nurse Jackman that his medications needed refilled. (Id. at p. 8). His medications ran out, however, before he received his refills. (Id.).

         Preliminary Dismissal

         Plaintiff attempts to brings claims against Wexford as the private corporation who is responsible for staffing all IDOC facilities with medical personnel. (Doc. 10, p. 2). He states that when an inmate is in possession of a prescription and needs a refill, pursuant to Wexford's refill policy implemented at Stateville and Lawrence, seven days prior to the prescription running out the inmate must: (1) remove the sticker from the package; (2) affix that sticker to a request form; and (3) forward the request to the pharmacy department nurse. (Id. at p. 6). The pharmacy nurse is then responsible for processing the request and ensuring the inmate receives his medication refill prior to finishing the current supply. (Id.). Plaintiff claims that, despite knowing that the policy causes medications to go unfilled on several occasions, Wexford refuses to modify its refill policy or hold employees accountable for failing to ensure medications are refilled in a timely manner. (Id. at p. 8).

         Wexford “cannot be held liable under § 1983 unless the constitutional violation was caused by an unconstitutional policy or custom of the corporation itself. Respondeat superior liability does not apply to private corporations under § 1983.” Shields v. Illinois Dep't of Corr., 746 F.3d 782, 789 (7th Cir. 2014).

         Plaintiff claims that Wexford's “refill policy has played a direct role in plaintiff not receiving his medication refill in a timely manner on three separate occasions.” (Doc. 10, p. 7). The facts in the Complaint, however, describe a refill policy and how, despite this policy, Plaintiff did not receive his refill before he ran out of the prescription supply. He does not allege that his rights were violated because Wexford's policy was being followed and that the policy caused Defendants to be deliberately indifferent to his condition, which is what is needed to hold Wexford liable.

         Furthermore, Wexford cannot be held liable for failing to ensure medications are refilled in a timely manner by employees. (Id. at p. 8). This is merely another way of seeking to hold Wexford liable because of its supervisory authority over its staff, or its failure to properly exercise that authority. Supervisor liability, the doctrine of respondeat superior, is not applicable to Section 1983 actions, whether it is applied to an individual supervisor or a corporate entity. Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted).

         Accordingly, any claims of deliberate indifference against Wexford are dismissed without prejudice, and Wexford shall be dismissed without prejudice as a defendant in this action.

         Discussion

         Based on the allegations of the Complaint, the Court finds it convenient to designate the claims in this case into the following two Counts:

Count 1: Eighth Amendment claim against John/Jane Doe #1 and John/Jane Doe #2 for deliberate indifference to serious medical needs by failing to ensure that Plaintiff received his medication refills in a timely manner while at Stateville.

Count 2: Eighth Amendment claim against Nurse Jackman, John/Jane Doe #4, Cunningham, Nurse McFarland, and Warden Brookhart for deliberate indifference to serious medical needs by failing to ensure that Plaintiff received his medication ...