United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.
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.
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).
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).
First Amended Complaint
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.).
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
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).
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.).
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).
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.).
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).
“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).
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
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).
any claims of deliberate indifference against Wexford are
dismissed without prejudice, and Wexford shall be dismissed
without prejudice as a defendant in this action.
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
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 ...