United States District Court, N.D. Illinois, Western Division
G. Reinhard Judge.
Wexford Health Sources, Inc.'s motion to dismiss  is
denied. Defendant Mershon's motion to dismiss  is
denied. Defendant Varga's motion to dismiss  is
denied. Defendant White's motion to dismiss  is
denied. The parties are ordered to contact Magistrate Judge
Johnston's operations specialist within 14 days to
discuss the scheduling of a settlement conference.
Brandon Irvin, incarcerated at Dixon Correctional Center
(“Dixon”), brings this lawsuit pursuant to 42
U.S.C. § 1983 claiming deliberate indifference to his
serious medical condition and inadequate medical treatment
while in custody at Dixon. Plaintiff brings his claims
against the Illinois Department of Correction's
(“IDOC”) medical service provider Wexford Health
Sources, Inc. (“Wexford”), Dixon warden John
Varga, Wexford's nurse practitioner Kristina Kay Mershon,
and IDOC's Administrative Review Board
(“ARB”) member Dave White. Plaintiff's
complaint also claims Wexford maintained a custom, policy, or
practice that resulted in a deprivation of plaintiff's
filed an amended complaint (through appointed counsel) on
April 12, 2019 . On May 8, 2019, defendants Wexford and
Varga filed motions to dismiss plaintiff's amended
complaint , . On June 27, 2019, defendant Mershon
filed a motion to dismiss plaintiff's amended complaint
. On July 8, 2019, defendant White filed a motion to
dismiss plaintiff's amended complaint . Plaintiff
responded to all four motions to dismiss on August 21, 2019
, , , . Defendants Mershon and Wexford filed
replies to plaintiff's response on September 12, 2019
, . All motions are now before the court.
to plaintiff's amended complaint, plaintiff was in
custody at Dixon from at least 2017. In early 2017, he
requested a low bunk permit for his back pain and was denied
this request. In December 2017, plaintiff slipped and fell in
his cell while climbing to his top bunk. Following his fall,
on January 11, 2018, plaintiff saw defendant Mershon for
abdominal pain. At that visit, defendant Mershon diagnosed
plaintiff with a hernia. Defendant Mershon told plaintiff
that Wexford would not pay for a hernia surgery because
Wexford deemed it to be “cosmetic.” Plaintiff
instead was told to “push the hernia in” and
avoid strenuous activity. Plaintiff was warned that the
hernia could grow, become more painful, and could result in
infection. On January 11, 2018, plaintiff filed a grievance
requesting a low bunk permit and surgery for his hernia.
Within his grievance, plaintiff discussed his chronic back
pain, the denial of his low bunk permit, the fall in his
cell, the denial of hernia surgery, and the possible
complications of the hernia. Defendant Varga reviewed the
grievance on January 18, 2018. Plaintiff's grievance was
received by the ARB on January 26, 2018. ARB member defendant
White reviewed the grievance on February 1, 2018. Defendant
White noted there would be no further redress of
also alleges in his amended complaint that defendant Wexford
maintains a policy or practice of ignoring prisoners'
serious medical needs in the interest of cost-cutting to
maximize profits. These policies and practices include
delaying or denying treatment of prisoners for conditions
requiring surgery, such as a hernia repair. Defendants'
refusal to provide plaintiff with hernia surgery as well as
reasonable accommodations to prevent further injury to his
hernia place plaintiff at risk for medical complications,
including hernia strangulation and infection, as well as
continued pain and suffering.
complaint, plaintiff claims defendants' actions and
inactions amount to deliberate indifference to his serious
medical needs in violation of 42 U.S.C. § 1983, against
the individual defendants and Wexford. Plaintiff's
complaint seeks money damages.
evaluating a Rule 12 (b)(6) motion to dismiss, the court must
“accept all well-pleaded facts as true and draw all
reasonable inferences in favor of the . . . non-moving
parties.” Bonnstetter v. City of Chicago, 811
F.3d 969, 973 (7th Cir. 2016) (internal citations omitted).
“A Rule 12(b)(6) motion challenges the sufficiency of
the complaint itself.” Id. “To state a
claim, a complaint must first provide ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief.'” Id. (citing
Fed.R.Civ.P. 8(a)(2)). “The statement of the claim must
sufficiently give ‘fair notice of what the ... claim is
and the grounds upon which it rests' to the
defendants.” Id. (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To state a
claim for relief, a complaint must provide more than
“abstract recitations of the elements of a cause of
action or conclusory legal statements.” Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Instead, a
plausible claim must include “‘factual
content' sufficient to allow the court ‘to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Charleston v. Board of
Trustees of the University of Illinois at Chicago, 741
F.3d 769, 772 (7th Cir. 2013) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).