Sidney Peterson v. Wexford Health Sources, Inc.

                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 19-2592


        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
           No. 19-cv-415 — Charles P. Kocoras, Judge.


   Before KANNE, SCUDDER, and ST. EVE, Circuit Judges.
    KANNE, Circuit Judge. Illinois inmate Sidney Peterson was
injured after he personally applied a caustic medication to
treat his genital warts. He now seeks to hold the prescribing
doctor, the attending nurses, and Wexford Health Sources,
Inc., accountable under state and federal law.
2                                                            No. 19-2592

    Peterson’s federal claims end here because he failed to
state a claim for deliberate indifference against any of the de-
fendants. However, all parties agree that Peterson’s state-law
negligence claims were timely brought. We agree, and those
claims may continue.
    We affirm the district court’s dismissal of Peterson’s delib-
erate indifference claims, and we reverse its dismissal of Pe-
terson’s state-law negligence claims and remand for further
                             I. BACKGROUND
    In January 2015, Sidney Peterson suffered from genital
warts while incarcerated at the Stateville Correctional Center
in Joliet, Illinois. 1 Dr. Arthur Davida—a physician at Stateville
and employed by Wexford Health Sources, Inc.—prescribed
Peterson a topical medication known as Podocon-25 to re-
move his warts.
    Podocon-25 contains a caustic substance called podophyl-
lin. It should be applied sparingly and then removed thor-
oughly with soap and water. Its packaging, in accordance
with FDA regulations, states that “PODOCON-25© IS TO BE
DISPENSED TO THE PATIENT.” It also warns of potential
“ADVERSE REACTIONS: The use of topical podophyllin has
been known to result in paresthesia, polyneuritis, paralytic

    1 We accept as true the facts stated in the operative complaint for pur-

poses of this appeal and review them in the light most favorable to Peter-
son. Perez v. Fenoglio, 

792 F.3d 768

, 774 (7th Cir. 2015) (citing Thulin v.
Shopko Stores Operating Co., LLC, 

771 F.3d 994

, 997 (7th Cir. 2014)).
No. 19-3465                                                      3

ileus, pyrexia, leukopenia, thrombocytopenia, coma and
    But Dr. Davida did not apply the Podocon-25 to Peterson’s
genital warts. Neither did Sarah Mays, a licensed practical
nurse at Stateville, nor Loreatha Coleman, a registered nurse
there. Instead, Mays and Coleman instructed Peterson to ap-
ply the treatment himself. He did so and suffered personal in-
juries as a result. (It is unclear whether Peterson used the
medication in the presence of nursing staff or alone in his cell;
his first complaint indicated the latter, but the operative com-
plaint is silent.)
    The procedural background of this case is more involved
than its facts. In January 2016, Peterson filed a federal com-
plaint pro se against Dr. Davida, Mays, Coleman, and multiple
prison officials—several correctional officers, the prison war-
den and assistant warden, and the deputy director of the Illi-
nois Department of Corrections—under 42 U.S.C. § 1983. In
this first complaint, he alleged that the medical staff had
caused him personal injuries, namely “severe soars [sic] on
his penis” and resulting “permanent injuries and erectile dis-
function,” when he was required to apply the Podocon-25
himself in his cell and despite the fact that it “is not to be used
by a person with diabetes.” He also alleged that the other de-
fendants had destroyed his shower pass permits that Dr.
Davida had granted to him as part of his treatment or that
they had otherwise failed to intervene to correct the situation.
    In March 2016, the district court conducted a review pur-
suant to 28 U.S.C. § 1915A. In its March 16 order, the court
granted Peterson’s motion for leave to proceed in forma pau-
peris, denied his motion for attorney representation, and dis-
missed his claims against all defendants except three
4                                                    No. 19-2592

correctional officers. Peterson was advised that he could seek
to file an amended complaint.
    After obtaining counsel, Peterson filed an amended com-
plaint in July 2016, reasserting his claims under § 1983 and
adding Wexford as a defendant. This amended complaint di-
vided his claims into two parts: first, the Podocon-25 claims
against Dr. Davida, Mays, Coleman, and Wexford; and sec-
ond, the shower-pass claims against the prison officials. Pe-
terson alleged more detail about Podocon-25’s properties and
packaging and less detail about how and where the medica-
tion was administered than in his initial pro se complaint. Af-
ter discovery, the parties stipulated to dismissal, and the case
was accordingly dismissed without prejudice on January 25,
    On January 21, 2019—nearly one year later—Peterson
filed the operative complaint, again with the assistance of
counsel, claiming deliberate indifference under § 1983 and
negligence under Illinois law against Dr. Davida, Mays, Cole-
man, and Wexford regarding his treatment with Podocon-25.
   Mays and Coleman filed a partial motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), arguing that Peter-
son failed to allege sufficient facts for deliberate indifference
and that his negligence claims should be barred by sovereign
immunity and the statute of limitations. In response, Peterson
supplemented his allegations with further detail about Podo-
con-25 and its intended application.
    On May 23, 2019, the district court granted the motion af-
ter finding that, although the complaint pled the existence of
a serious medical condition, it failed to sufficiently allege that
the defendants had the requisite state of mind for deliberate
No. 19-3465                                                      5

indifference. The district court also held that Peterson’s negli-
gence claims were barred by the statute of limitations because
his first complaint in January 2016 did not contain those alle-
gations. Further, the relation-back doctrine did not apply be-
cause it governs only amendments to a complaint, not an en-
tirely new filing. Peterson filed a motion to reconsider, which
the district court denied.
    Following Mays and Coleman’s successful motion to dis-
miss, Dr. Davida and Wexford moved for judgment on the
pleadings under Rule 12(c). The district court granted the mo-
tion and dismissed the case with prejudice in a docket entry,
without discussion, on July 30, 2019. Judgment was entered
the next day in favor of the defendants. Peterson timely ap-
                            II. ANALYSIS
    We review de novo the district court’s decision granting a
motion to dismiss for failure to state a claim, “accepting as
true all well-pleaded facts and drawing reasonable inferences
in [Peterson’s] favor.” United Cent. Bank v. Davenport Est. LLC,

815 F.3d 315

, 318 (7th Cir. 2016) (citing McReynolds v. Merrill
Lynch & Co., Inc., 

694 F.3d 873

, 879 (7th Cir. 2012)). For a plead-
ing to survive, the plaintiff need allege “only enough facts to
state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 

550 U.S. 544

, 570 (2007). But “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 

556 U.S. 662

, 678 (2009) (citing 

Twombly, 550 U.S. at 555

   We review the district court’s order granting a motion for
judgment on the pleadings the same way—“de novo, asking
whether the well-pleaded factual allegations viewed in favor
6                                                    No. 19-2592

of the nonmoving party state a facially plausible claim for re-
lief.” Sinn v. Lemmon, 

911 F.3d 412

, 418 (7th Cir. 2018) (citing
Gill v. City of Milwaukee, 

850 F.3d 335

, 339 (7th Cir. 2017)).
    A. Deliberate Indifference
    “To determine if the Eighth Amendment has been violated
in the prison medical context, we perform a two-step analysis,
first examining whether a plaintiff suffered from an objec-
tively serious medical condition, and then determining
whether the individual defendant was deliberately indiffer-
ent to that condition.” Petties v. Carter, 

836 F.3d 722

, 727–28
(7th Cir. 2016) (en banc) (citing Farmer v. Brennan, 

511 U.S. 825

834 (1994)).
    Here, Defendants do not dispute that Peterson suffered
from an objectively serious medical condition. We turn then
to the second step and consider whether Peterson alleged
facts plausibly stating a claim that Mays, Coleman, Dr.
Davida, and Wexford were deliberately indifferent to his con-
     To satisfy this subjective step, the complaint must allege
that the defendants acted with a “sufficiently culpable state of

Farmer, 511 U.S. at 834

(quoting Wilson v. Seiter, 

501 U.S. 294

, 297 (1991)). “[D]eliberate indifference entails some-
thing more than mere negligence” but “something less than
acts or omissions for the very purpose of causing harm or
with knowledge that harm will result.”

Id. at 835;

see also Es-
telle v. Gamble, 

429 U.S. 97

, 106 (1976) (“Medical malpractice
does not become a constitutional violation merely because the
victim is a prisoner.”). “[T]he official must both be aware of
facts from which the inference could be drawn that a
No. 19-3465                                                      7

substantial risk of serious harm exists, and he must also draw
the inference.” 

Farmer, 511 U.S. at 837


    “Prison officials must provide inmates with medical care
that is adequate in light of the severity of the condition and
professional norms.” Perez v. Fenoglio, 

792 F.3d 768

, 777 (7th
Cir. 2015). Demonstrating that the inmate received some treat-
ment “does not automatically defeat a claim of deliberate in-

Id. (quoting Edwards v.


478 F.3d 827

, 831
(7th Cir. 2007)). “Deliberate indifference may occur where a
prison official, having knowledge of a significant risk to in-
mate health or safety, administers ‘blatantly inappropriate’
medical treatment … .”

Id. (quoting Edwards, 478

F.3d at 831).
In other words, “[a] plaintiff can show that the professional
disregarded the need only if the professional’s subjective re-
sponse was so inadequate that it demonstrated an absence of
professional judgment, that is, that ‘no minimally competent
professional would have so responded under those circum-
stances.’” Arnett v. Webster, 

658 F.3d 742

, 751 (7th Cir. 2011)
(quoting Roe v. Elyea, 

631 F.3d 843

, 857 (7th Cir. 2011)); see also
Holloway v. Del. Cnty. Sheriff, 

700 F.3d 1063

, 1073 (7th Cir.
   1. Mays, Coleman, and Dr. Davida
    In the operative complaint, Peterson alleges that Podocon-
25 contains “a powerful caustic and severe irritant” and that
its packaging repeatedly and prominently warns that it is to
be applied only by a physician and is not to be dispensed to
the patient.
    Peterson then makes allegations specific to the individual
defendants. He alleges that Dr. Davida “prescribed for plain-
tiff a medication known as ‘Podocon-25’” and that he
8                                                           No. 19-2592

“ignored the FDA mandated warnings and directed that a
non-physician apply the Podocon-25 to plaintiff’s genital
warts.” The remaining allegations against Dr. Davida relate
to his employment under Wexford.
    Regarding Mays and Coleman, Peterson alleges that “[t]he
job duties of defendant Mays included applying the Podocon-
25 to plaintiff’s genital warts” and that “Mays refused to ap-
ply the Podocon-25 to plaintiff’s genital warts, instructing
plaintiff to do it himself.” He further alleges that “Mays knew
that plaintiff would suffer personal injuries if plaintiff at-
tempted to apply the Podocon-25 to his genital warts.” Peter-
son makes the same allegations against Coleman.
    In response to Mays and Coleman’s motion to dismiss, Pe-
terson supplemented the complaint’s allegations. 2 He listed
the possible “adverse reactions” described on the packaging
and stated that Podocon-25 is to be “sparingly” applied and
then “thoroughly removed” with alcohol or soap and water,
which were not available to him.
   To state a claim for deliberate indifference against these
defendants, Peterson must allege that they were “aware …
that a substantial risk of serious harm exist[ed],” 

Farmer, 511 U.S. at 837

, and that their “subjective response was so inade-
quate that it demonstrated an absence of professional judg-

Arnett, 658 F.3d at 751

. As the district court pointed
out, Peterson makes conclusory allegations that these defend-
ants had the requisite state of mind, stating that they “ignored

    2 In “opposing a Rule 12(b)(6) motion,” Peterson was free to “elabo-
rate on his factual allegations so long as the new elaborations are con-
sistent with the pleadings.” Geinosky v. City of Chicago, 

675 F.3d 743

, 745
n.1 (7th Cir. 2012).
No. 19-3465                                                      9

the FDA mandated warnings” and “knew that [Peterson]
would suffer personal injuries.” There are no related factual
claims from which we could draw an inference that they “ac-
tually kn[e]w about yet disregard[ed] a substantial risk of
harm to [Peterson’s] health or safety.” Rasho v. Elyea, 

856 F.3d 469

, 476 (7th Cir. 2017) (citing 

Petties, 836 F.3d at 728

). We
acknowledge that “Rule 9(b) allows states of mind to be al-
leged generally,” Armstrong v. Daily, 

786 F.3d 529

, 547 (7th
Cir. 2015); see also Burks v. Raemisch, 

555 F.3d 592

, 594 (7th Cir.
2009), but the deliberate indifference standard is not satisfied
by these conclusory statements alone. Peterson’s allegations
regarding his treatment ultimately sink his complaint.
    Let’s consider the course of treatment as described by the
complaint. Peterson did receive treatment for his genital
warts. Of course, the “receipt of some medical care does not
automatically defeat a claim of deliberate indifference if … the
treatment was ‘so blatantly inappropriate as to evidence in-
tentional mistreatment likely to seriously aggravate’ a medi-
cal condition.” 

Edwards, 478 F.3d at 831

(quoting Snipes v. De-

95 F.3d 586

, 592 (7th Cir. 1996)) (emphasis in original).
But Peterson does not allege that prescribing Podocon-25 was
“blatantly inappropriate.”

Id. Indeed, the complaint

that one of the components of Podocon-25 is “prescribed for
the removal of soft genital warts.” Peterson’s claim instead re-
lies on how the medication was administered.
    Significantly, the administration of Podocon-25 is where
the complaint is most lacking. The complaint says only that
Dr. Davida directed a “non-physician” to apply the medica-
tion. As Peterson’s counsel clarified at oral argument, “non-
physician” refers to a nurse rather than an inmate. So Peterson
has alleged only that Dr. Davida, a licensed physician,
10                                                    No. 19-2592

instructed a licensed nurse to apply a prescribed medication
appropriate for treating the patient’s condition. Although Pe-
terson cites Echols v. Craig in support, Dr. Davida’s alleged ac-
tions do not come close to the alleged conduct in Echols. See
Echols v. Craig, 

855 F.3d 807

, 812 (7th Cir. 2017) (finding “no
difficulty concluding that [the plaintiff] state[d] a plausible
claim of deliberate indifference” where he alleged that the
doctor “knew he broke a drill bit during the [tooth] extrac-
tion, … sutured his gum without accounting for the broken
pieces, … obtained an X-ray that confirmed its presence but
did nothing to address the problem”).
   As for the nurses, Peterson alleges only that it was within
their “job duties” to apply the medication, yet they instructed
Peterson to apply the Podocon-25 himself. It does not matter
whether Dr. Davida instructed them or whether they inde-
pendently chose to dispense the medication to Peterson. Hol-

loway, 700 F.3d at 1075

(“A nurse may … act with deliberate
indifference if he or she ‘ignore[s] obvious risks to an inmate’s
health’ in following a physician’s orders.” (quoting Rice ex rel.
Rice v. Corr. Med. Servs., 

675 F.3d 650

, 683 (7th Cir. 2012))). Re-
gardless, the allegations fail to state a claim that their actions
were “so inadequate that [they] demonstrated an absence of
professional judgment, that is, that ‘no minimally competent
professional would have so responded under those circum-

Arnett, 658 F.3d at 751


Roe, 631 F.3d at 857

    At bottom, Peterson’s complaint fails to allege that any of
these three defendants were “aware … that a substantial risk
of serious harm exist[ed],” 

Farmer, 511 U.S. at 837

, and that
their “subjective response was so inadequate that it demon-
strated an absence of professional judgment.” 

Arnett, 658 F.3d at 751

. Peterson’s allegations that Dr. Davida prescribed an
No. 19-3465                                                      11

appropriate medication and instructed the nurses to adminis-
ter it and that Mays and Coleman dispensed that medication
to Peterson for him to apply himself do not evince “something
approaching a total unconcern for the prisoner’s welfare in
the face of serious risks.” Donald v. Wexford Health Sources, Inc.,

982 F.3d 451

, 458 (7th Cir. 2020) (quoting Rosario v. Brawn, 

670 F.3d 816

, 821 (7th Cir. 2012)). We therefore conclude that Pe-
terson failed to state a claim for deliberate indifference against
Dr. Davida, Mays, and Coleman.
   2. Wexford
    Peterson has likely waived any arguments directed to the
district court’s judgment in favor of Wexford by simply fail-
ing to raise them on appeal. Gable v. City of Chicago, 

296 F.3d 531

, 538 (7th Cir. 2002) (finding that the plaintiffs “waived
two of their arguments on appeal by not developing them in
their opening brief”); see also Henry v. Hulett, 

969 F.3d 769

785–86 (7th Cir. 2020) (explaining that “waiver is the ‘inten-
tional relinquishment or abandonment of a known right’”
(quoting United States v. Olano, 

507 U.S. 725

, 733 (1993)). But
even absent waiver, Peterson’s complaint fails to state a claim
against Wexford for deliberate indifference.
    Peterson asserts that Wexford is liable under § 1983 “for
the wrongdoing of its employee defendant Davida under the
doctrine of respondeat superior.” This theory fails. Under Mo-
nell and its progeny, a corporation can be liable under § 1983
only for its own policies and practices, not under a theory of
respondeat superior. Monell v. Dep’t of Soc. Servs. of New York,

436 U.S. 658

, 691 (1978); accord Whiting v. Wexford Health
Sources, Inc., 

839 F.3d 658

, 664 (7th Cir. 2016); Shields v. Ill.
Dep’t of Corrs., 

746 F.3d 782

, 796 (7th Cir. 2014); Iskander v. Vil-
lage of Forest Park, 

690 F.2d 126

, 128 (7th Cir. 1982). Despite
12                                                  No. 19-2592

calls to reconsider our precedent, “we have chosen to leave
Iskander undisturbed,” Wilson v. Wexford Health Sources, Inc.,

932 F.3d 513

, 522 (7th Cir. 2019) (citing Gaston v. Ghosh, 

920 F.3d 493

, 498 (7th Cir. 2019) (Hamilton, J., concurring)), and
Peterson presents no reason for us to take another look.
    Furthermore, “‘if the plaintiff’s theory of Monell liability
rests entirely on individual liability,’ as [Peterson’s] does
here, then ‘negating individual liability will automatically
preclude a finding of Monell liability.’” 

Donald, 982 F.3d at 463


Whiting, 839 F.3d at 664

). This claim against Wexford
must therefore, at any rate, meet the same fate as the claim
against Dr. Davida.
     B. Timeliness of Negligence Claims
    The district court dismissed Peterson’s negligence claims
because it concluded that the statute of limitations had run.
All parties now agree that this conclusion is incorrect and re-
quest that we reverse the dismissal of the state-law claims. We
must oblige, for we agree that the district court was mistaken.
   Peterson filed his first complaint on January 25, 2016;
amended it in July 2016; and voluntarily dismissed it on Jan-
uary 25, 2018. The initial and amended complaint related to
Peterson’s alleged injury from 2015.
    Peterson then filed the present complaint on January 21,
2019, and included negligence counts for the first time, the
district court found. Because Peterson exhausted his adminis-
trative remedies on January 10, 2016, and the statute of limi-
tations in Illinois is two years for personal-injury claims, 735
ILCS 5/13-202, the district court concluded that Peterson’s
negligence claims fell outside the limitations period. The
court further concluded—correctly—that the relation-back
No. 19-3465                                                                  13

doctrine under Federal Rule of Civil Procedure 15(c) and 735
ILCS 5/2-616 could not save the claims because that doctrine
only applies to amendments of existing complaints, not new
causes of action.
    However, the district court did not take into account 735
ILCS 5/13-217, under which plaintiffs have an “absolute right
to refile their complaint within one year” of its voluntary dis-
missal. Timberlake v. Illini Hosp., 

676 N.E.2d 634

, 636 (Ill. 1997);
735 ILCS 5/13-217 (West 1994). 3 Under this savings statute, a
plaintiff refiling an action can bring new claims “that arose
from the ‘same transaction’ alleged in the prior action.” Rocha
v. Rudd, 

826 F.3d 905

, 910 n.3 (7th Cir. 2016) (quoting Richter
v. Prairie Farms Dairy, Inc., 

53 N.E.3d 1

, 15 (Ill. 2016)).
     Peterson, by refiling this complaint, was not limited to al-
leging only the causes of action in his original complaint; ra-
ther, he was at liberty to include any claims “arising from a
single group of operating facts.” 

Richter, 53 N.E.3d at 15

ing Hayashi v. Ill. Dep’t of Fin. And Pro. Regul., 

25 N.E.3d 570

(Ill. 2014)). His negligence claims relate to the events underly-
ing the initial complaint’s deliberate indifference claims.
Thus, regardless of whether Peterson brought his negligence
claims in his first two complaints, the savings statute pro-
tected those claims from the two-year statute of limitations.

    3 In 1995, the Illinois legislature amended this statute when it enacted
Public Act 89-7, § 15, but the Supreme Court of Illinois struck down the
entire act in Best v. Taylor Mach. Works, 

689 N.E.2d 1057

(Ill. 1997). Hudson
v. City of Chicago, 

889 N.E.2d 210

, 214 n.1 (Ill. 2008); Rocha v. Rudd, 

826 F.3d 905

, 909 n.1 (7th Cir. 2016). The operative language of this statute therefore
comes from the pre-1995 version. 

Rocha, 826 F.3d at 909

14                                                No. 19-2592

The district court erred in dismissing Peterson’s negligence
claims for being untimely.
                      III. CONCLUSION
    We AFFIRM the district court’s dismissal of Peterson’s de-
liberate indifference claims against all defendants. We
REVERSE the dismissal of his negligence claims and
REMAND for further proceedings consistent with this opin-

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