United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, UNITED STATES DISTRICT JUDGE
Arsberry, an inmate at Dixon Correctional Center, has filed
suit under 42 U.S.C. § 1983 against Wexford Health
Sources, Inc., several of its personnel, and personnel of the
Illinois Department of Corrections (IDOC), alleging
deficiencies in his medical care. Wexford has moved to
dismiss Arsberry's third amended complaint for failure to
state a claim.
Court begins by noting a matter that it allowed to slip
through the cracks. In his original pro se
complaint, placed for mailing at the prison in or around late
January 2017, Arsberry sued Wexford, four medical doctors
(identified as Dr. Schaffer, Dr. Dominguez, Dr. Bautista, and
Dr. Davila), and Amber Allen, a health care administrator.
About two and one-half months after the complaint was
received by the Clerk, the district judge to whom this case
was previously assigned granted leave to proceed in forma
pauperis, appointed counsel to represent Arsberry, and
deferred issuance of summons pending counsel's filing of
an amended complaint. Counsel's amended complaint, filed
in late November 2017, named only Wexford, not any individual
defendants. The assigned magistrate judge directed service of
summons on Wexford only. Counsel filed a second amended
complaint about seventeen months later, in April 2019, again
naming only Wexford.
in late June 2019, counsel filed a third amended complaint,
naming not just Wexford but also re-naming the four
physicians and administrator Allen, as well as the warden of
Dixon Correctional Center. The third amended complaint split
up the claims against the individual defendants into separate
counts, unlike the original, pro se version of
Arsberry's complaint. The Court has, up to this point,
neglected to conduct the required initial review under 28
U.S.C. § 1915A of the new (or renewed) claims against
the individual defendants. The Court will conduct that review
in this decision, after dealing with Wexford's motion to
dismiss. Lastly, the Court will address motions to dismiss
recently filed by the individual defendants.
Court takes the facts from Arsberry's third amended
complaint. Arsberry is 73 years old and until recently was
housed in Dixon's geriatric unit, which requires an
inmate to be at least 50 years old and have two or more
chronic illnesses. Arsberry alleges that he has a myriad of
serious and chronic medical conditions, including significant
problems in his thoracic and lumbar spine; a severe chronic
skin condition; pain in his right heel, left leg, and left
neck; cardiac problems, including atherosclerotic
calcification of the aortic arch; hepatitis C with scarring
of the liver; gastric ulcers; a hiatal hernia and an inguinal
hernia; nodules throughout his lungs, indicative of early
stage interstitial lung disease and sarcoidosis; and prostate
cancer, albeit in remission.
count 1, his claim against Wexford, Arsberry alleges that
from 2012 through the present, appropriate treatment for
these conditions-in particular, treatment by specialists
outside the prison as well as diagnostic testing that would
be conducted outside the prison-has been improperly delayed.
First, Arsberry alleges that from 2012 through the date a
physician named Chamberlain was appointed at Dixon's
medical director-which Arsberry places in late 2015 or early
2016-he was not referred for specialized treatment at all. He
alleges this was due to what he alleges was Wexford's
policy of refusing to use its "collegial review"
process, which is the process Wexford has established to
determine when to approve a prisoner for outside treatment.
3rd Am. Compl. ¶¶ 23, 24, 29. Second, Arsberry
identifies certain specific incidents in 2018: one in which
an MRI of his spine to determine degenerative progression was
delayed by three months (from July to October 2018), see
Id. ¶ 25; another in which an epidural injection
related to his spinal condition was not provided after
approval by collegial review, see Id. ¶ 26; and
a third in which approval was never given for a biopsy
concerning his skin problems, see Id. ¶ 27.
2 through 10 of the third amended complaint (not including
count 7, which is missing) are asserted against the medical
• In count 2, asserted against Dr. Dominguez, Arsberry
alleges that on various dates from 2012 through January 2015,
Dr. Dominguez refused to treat his back problems and refused
to refer him to a specialist, saying there was nothing he
could do for Arsberry's severe back pain.
• In count 3, against Dr. Schaffer, Arsberry complains
that in July 2012, Dr. Schaffer failed to treat him or refer
him for outside treatment for his severe back pain.
• In count 4, against Dr. Davila, Arsberry alleges that
in June 2015, Dr. Davila failed to provide appropriate
treatment, or refer him for treatment by a specialist, for
his severe back pain as well as for severe abdominal pain
accompanied by bloody diarrhea, anemia, weight loss, and
• In count 5, against Dr. Bautista, Arsberry alleges
that in May 2015, Dr. Bautista failed to treat him or refer
him for outside treatment for his severe back pain.
• In count 6, against Dr. Dominguez, Arsberry alleges
that from August 2012 through January 2015, Dr. Dominguez
failed to provide appropriate treatment or refer Arsberry for
outside treatment for his chronic, painful skin condition.
• In count 8 (there is no count 7), against Dr. Davila,
Arsberry alleges in June 2015, that Dr. Davila (like Dr.
Dominguez before him) failed to provide appropriate treatment
or refer him for outside ...