United States District Court, N.D. Illinois, Eastern Division
ERIC L. ROBINSON, Plaintiff,
WEXFORD HEALTH SOURCES, INC., Defendants.
MEMORANDUM OPINION AND ORDER
M. ROWLAND UNITED STATES DISTRICT JUDGE
Eric L. Robinson (“Mr. Robinson”) filed a civil
action under 42 U.S.C. § 1983 against Defendants Wexford
Health Services, Inc. (“Wexford”) and the
Illinois Department of Corrections (“IDOC”),
alleging deliberate indifference to medial needs. On February
21, 2018, the district court granted Mr. Robinson's
motion to voluntarily dismiss IDOC, leaving only Wexford as a
defendant. (Dkt. 96). Before the Court is Wexford's
motion for summary judgement. For the reasons set forth
below, Wexford's Motion for Summary Judgment  is
December 10, 2015, Mr. Robinson, a diabetic, arrived at
Stateville Northern Reception and Classification Center
(“Stateville NRC”) after being transferred from
Peoria County Jail (“Peoria”). (Dkt. 122,
¶4). While at Peoria, Mr. Robinson had a history of
refusing insulin from medical staff. (Id.
¶¶35-45). The Peoria medical staff summarized this
information in a transfer form and provided it to the
Stateville NRC medical staff. (Id. ¶46).
arrival to Stateville NRC, Mr. Robinson received an
examination from Wexford employee Diane Schwarz, a
physician's assistant. (Dkt. 122, ¶49). Wexford
provides medical services to IDOC prisons pursuant to its
contract with the State of Illinois. (Id. ¶5).
Although Mr. Robinson took insulin and Metformin, another
diabetes medication, at Peoria, PA Schwarz reduced his
Metformin prescription by half and did not give him insulin.
(Id. ¶¶53-54). PA Schwarz's reasons
for changing Mr. Robinson's prescription-and the validity
of those reasons-are disputed by the parties.
January 1, 2016, Mr. Robinson entered Stateville NRC's
infirmary and Dr. Roz, a Wexford employee, prescribed various
insulins and procedures to monitor Mr. Robinson's
diabetes. (Dkt. 128, ¶39). Mr. Robinson claims, and
Wexford disputes, that he submitted “at least 10 sick
calls to IDOC correctional officers” and “at
least 6 sick calls to Wexford employees” in the 21 days
leading up to his infirmary visit. (Id.
¶¶8-10). The parties dispute the procedure for
handling these sick call requests and whether they were
received. Mr. Robinson further claims-and Wexford
disputes-that he experienced increasingly worsening symptoms
prior to his infirmary visit including swelling of the
extremities, blurred vision, dizziness, pain in his hands and
feet, intermittent seizures, loss of consciousness, loss of
bladder control and temporary blindness. (Id.
¶¶36, 37). Mr. Robinson claims that he experienced
some immediate relief after receiving insulin on January 1,
2016 but continued to suffer severe pain in his hands and
feet. (Id.). Mr. Robinson alleges that Wexford,
through its de facto policies and practices, caused
him to suffer and showed deliberate indifference to his
medical needs. (Dkt. 77, ¶¶79-86).
Summary Judgment Standard
judgment is proper where “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A genuine factual
dispute exists when there is enough evidence that a
reasonable jury could find in favor of the nonmoving party.
Whiting v. Wexford Health Sources, Inc., 839 F.3d
658, 661 (7th Cir. 2016); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In construing the
evidence and facts supported by the record in favor of the
non-moving party, the Court gives the non-moving party
“the benefit of reasonable inferences from the
evidence, but not speculative inferences in [its]
favor.” White v. City of Chicago, 829 F.3d
837, 841 (7th Cir. 2016) (internal citations omitted).
judgment is proper against “a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which the party
will bear the burden of proof at trial.”
Celotex, 477 U.S. at 323; see also White,
829 F.3d at 841 (summary judgment warranted where a
reasonable juror could not find in favor of the non-moving
party “on the evidence submitted in support of and
opposition to the motion for summary judgment.”)
(internal citation omitted). “As the ‘put up or
shut up' moment in a lawsuit, summary judgment requires a
non-moving party to respond to the moving party's
properly-supported motion by identifying specific, admissible
evidence showing that there is a genuine dispute of material
fact for trial.” Grant v. Trustees of Indiana
Univ., 870 F.3d 562, 568 (7thCir. 2017) (citations and
quotation marks omitted).
Robinson's § 1983 claim against Wexford, a private
corporation that provides medical services for Stateville,
must be evaluated under Monell v. Dep't of Social
Servs. of the City of New York, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). Monell claims apply
equally to municipalities and to “§ 1983 claims
brought against private companies [such as Wexford] that act
under color of state law.” Whiting, 839 F.3d
at 664 (citing Shields v. Ill. Dep't of Corr.,
746 F.3d 782).
under Monell may be established in three ways:
“(1) an express policy that causes a constitutional
deprivation when enforced; (2) a widespread practice that is
so permanent and well-settled that it constitutes a custom or
practice; or (3) an allegation that the constitutional injury
was caused by a person with final policymaking
authority.” Spiegel v. McClintic, 916 F.3d
611, 617 (7th Cir.), cert. denied, 140 S.Ct. 51
(2019) (quoting Estate of Sims ex rel. Sims v. Cty. of
Bureau, 506 F.3d 509, 515 (7th Cir. 2007)). To prevail
under Monell, Mr. Robinson must provide evidence
that would allow a reasonable jury to conclude that
“his injury was caused by a Wexford policy, custom, or
practice of deliberate indifference to medical needs, or a
series of bad acts that together raise the inference of such
a policy.” Shields, 746 F.3d at 796;
Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978). The policy, custom or
practice “must be the direct cause or moving force
behind the constitutional violation.” Woodward v.
Correctional Medical Services of Illinois, Inc., 368
F.3d 917, 927 (7th Circ. 2004).
Robinson fails to provide competent evidence of an
unconstitutional policy or widespread practice sufficient to
survive summary judgment. Mr. Robinson does not claim that
Wexford has an explicit unconstitutional policy; rather, a
“de facto policy to withhold medication and to
not perform medical[ly] prescribed medical treatment as a
cost cutting and efficiency measure.” (Dkt. 77,
¶79). A de facto policy claim falls under the
“widespread practice” theory of liability.
See e.g. LaPorta v. City of Chicago, 277
F.Supp.3d 969, 981 (N.D. Ill. 2017) (noting that one theory
of liability under Monell is “a widespread
common practice that by virtue of its ubiquity constitutes a
de facto custom or usage with the force of
law”). To establish a “widespread practice,
” Plaintiff must offer “evidence that there is a
true municipal policy at issue, not a random event.”
Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir.
2005); Daniel v. Cook Cty., 833 F.3d 728, 734 (7th
Cir. 2016) (“a mere isolated event” is
insufficient to prove widespread practice). The Seventh
Circuit has noted that “the gravamen” of a
Monell claim “is not individual
misconduct” on the part of certain employees,
“but a widespread practice that permeates a
critical mass of an institutional body.” Rossi v.
City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015)
(emphasis in original). When relying on indirect proof to
show widespread practice, as Mr. Robinson does here, a
“plaintiff must introduce evidence demonstrating that
the unlawful practice was so pervasive that acquiescence on
the part of policymakers was apparent and amounted to a
policy decision.” Dixon v. City. of Cook, 819
F.3d 343, 348 (7th Cir. 2016) (internal quotations omitted).
only evidence Mr. Robinson provides of a widespread practice
is: (1) his own testimony that he made 16 sick call requests,
at least 6 delivered directly to Wexford employees, over a 21
day period prior to his infirmary visit that went unanswered;
(2) Dr. Fisher's testimony that the average vial of
insulin costs about $78.00 while a dose of Metformin costs
“pennies”; and (3) testimony by Dr. Fisher
admitting that Wexford was concerned about the sick call
process, yet Wexford “chose to adhere to its
client's wishes, and do nothing.” (Dkt. 123 at
10-12; Dkt. 128, ¶¶ 3, 9-10, 12, 27). This
evidence, taken in the light most ...