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Arsberry v. Wexford Health Sources, Inc.

United States District Court, N.D. Illinois, Western Division

January 2, 2020

LONNIE ARSBERRY, Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., WARDEN DONALD ENLOE, AMBER ALLEN, BESSIE DOMINGUEZ, DR. SHAFFER, DR. BAUTISTA, and DR. DAVILA, Defendants.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, UNITED STATES DISTRICT JUDGE

         Lonnie 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.

         The 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.

         Then, 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.

         Facts

         The 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.

         In 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.

         Counts 2 through 10 of the third amended complaint (not including count 7, which is missing) are asserted against the medical doctors.

• 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 dehydration.
• 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 ...

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