IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JUAN NEELY, ) 

 ) 

 Plaintiff, ) 

 ) 

 vs. ) Case No. 12 C 2231 

 ) 

MICHAEL P. RANDLE, et al., ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

MATTHEW F. KENNELLY, District Judge: 

 Juan Neely has asserted claims against Illinois Department of Corrections 

(IDOC) employees, Wexford Health Sources, Inc., and Wexford Health Sources 

employees pursuant to 42 U.S.C. § 1983. Neely’s complaint also names as 

defendants unknown correctional officers and medical personnel. Currently 

before the Court are motions by the IDOC and Wexford defendants to dismiss all 

of Neely’s claims. For the reasons stated below, the Court grants defendants’ 

motions in part and denies them in part. 

Facts

 The Court draws the following facts from Neely’s complaint and accepts 

them as true for purposes of the motions to dismiss. Hallinan v. Fraternal Order 

of Police of Chi. Lodge No. 7, 570 F. 3d 811, 820 (7th Cir. 2009). 

 Neely is an IDOC prisoner currently serving his sentence at Centralia 

Correctional Center. He states that on April 5, 2010, while at Pinckneyville 
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Correctional Center, he began complaining about pain in one of his teeth. Neely 

alleges that he complained again on May 3, 2010 and was not only denied 

treatment but also placed on the “off call” list so that he could not return to the 

prison’s medical department. On July 29, 2010, Neely was allowed to return to 

the medical department where an examination revealed a swollen, painful cheek 

and a likely abscessed tooth. Neely says that he was told he needed to go to the 

dental department for treatment. He alleges, however, that no referral was 

made. 

 Between August 11 and September 29, 2010, Neely was transferred from 

to Stateville Correctional Center on a writ and then back to Pinckneyville. Neely 

says that pursuant to IDOC policies and procedures regarding the transfer of 

inmates, Pinckneyville and Stateville medical personnel examined him before 

leaving and upon arriving at each prison. He alleges he complained of his tooth 

pain but that medical personnel failed to note any of his complaints in his 

“offender health status transfer summary,” contrary to IDOC policy. 

 Neely claims that once at Stateville, he was told it was “Stateville policy 

not to provide medical treatment to inmates on state writs and that Plaintiff would 

have to wait until he returned to Pinckneyville to have his medical issue 

resolved.” 2d Am. Compl. ¶ 38. During his stay at Stateville, Neely alleges, he 

complained to unknown medical personnel and correctional officers regarding his 

tooth pain and heavily bleeding gums. He says that he was brought to the 

medical department at Stateville and was told that his infected tooth needed to 

be removed. Despite this, Neely contends, he was denied further treatment 
3 

while at Stateville other than being given a few days’ worth of antibiotics. Neely 

also alleges that at Pinckneyville a number of months later, before he was 

transferred to an outside institution for medical care, he was examined by 

medical personnel who also failed to document his serious medical condition on 

his offender health status transfer summary. 

 Neely claims that during the relevant time frame, he filed a number of 

grievances that were ignored by IDOC employees. He alleges that he suffered 

severe pain and distress for months and that the defendants knowingly denied 

him necessary medical attention. 

Discussion

 Defendants have moved to dismiss Neely’s second amended complaint 

pursuant to Federal Rule of Civil Procedure 12(b)(6). All of the defendants argue 

that Neely’s allegations do not reflect the personal involvement or deliberate 

indifference required for liability under section 1983. The IDOC defendants also 

contend that the Eleventh Amendment bars Neely’s official capacity claims. The 

Wexford defendants contend that Neely did not exhaust administrative remedies 

with regard to his claims against them. Various defendants also argue that Neely 

has failed to adequately alleged a policy or practice actionable under Monell. 

 On a motion to dismiss under Rule 12(b)(6), the Court accepts the facts 

stated in the complaint as true and draws reasonable inferences in favor of the 

plaintiff. Hallinan, 570 F.3d at 820. To survive a motion to dismiss, a complaint 

must include enough facts to state a claim for relief that is plausible on its face. 

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). A claim is plausible on its face 
4 

“when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

I. Exhaustion of remedies 

 The Prison Litigation Reform Act of 1996 provides that “[n]o action shall be 

brought with respect to prison conditions . . . by a prisoner . . . until such 

administrative remedies as are available are exhausted.” 42 U.S.C. § 

1997(e)(a). “[I]f a prison has an internal administrative grievance system through 

which a prisoner can seek to correct a problem, then the prisoner must utilize 

that administrative system before filing a claim” under section 1983. Massey v. 

Helman, 196 F.3d 727, 733 (7th Cir. 1999). 

 The Wexford defendants argue that Neely failed to exhaust administrative 

remedies with regard to his claims against them. As a general rule, an inmate 

must comply with the rules established by the state with respect to the form and 

timeliness of grievances. E.g., Pozo v. McCaughtry, 286 F.3d 1022, 1023–25 

(7th Cir. 2002). In this case, unlike in Pozo, Neely alleges that he received no 

response to a number of his grievances. The Seventh Circuit has held that 

prison officials’ failure to respond to an inmate’s grievances renders 

administrative remedies “unavailable” and excuses the prisoner from pursuing 

them further. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). 

 All of that aside, “failure to exhaust is an affirmative defense under PLRA, 

and inmates are not required to specially plead or demonstrate exhaustion in 

their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). See also Dole v. 

Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (“Exhaustion is an affirmative 
5 

defense, and the burden of proof is on the defendants.”). “[A] district court 

should not base a dismissal under Rule 12(b)(6) on its assessment of an 

affirmative defense,” see U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 

626 (7th Cir. 2003), unless the plaintiff “has included in its complaint facts that 

establish an impenetrable defense to its claims” and thus essentially pleads 

himself out of court. Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009). 

Neely alleges that he filed grievances that were received and ignored by various 

defendants. He has not pleaded himself out of court. The exhaustion defense 

does not provide a basis for dismissal under Rule 12(b)(6). 

II. Personal involvement / deliberate indifference 

 Both IDOC and individual Wexford defendants argue that Neely has 

insufficiently alleged the personal involvement and deliberate indifference 

required for liability under section 1983. “Section 1983 creates a cause of action 

based on personal liability and predicated upon fault; thus liability does not attach 

unless the individual defendant caused or participated in a constitutional 

deprivation.” Vance v. Washington, 97 F.3d 987, 991 (7th Cir. 1996). This 

ultimately will require Neely to demonstrate that the particular defendant under 

consideration was personally involved in the particular deprivation alleged or that 

the deprivation occurred at the defendant’s direction or with the defendant’s 

knowledge and consent. See Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 

1995). Liability under the Eighth Amendment in these circumstances requires 

proof that the prison official was deliberately indifferent to the inmate’s serious 

medical need. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Estelle v. Gamble, 
6 

429 U.S. 9, 103-104 (1976); Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000). 

Deliberate indifference has both an objective and subjective element: the inmate 

must have an objectively serious medical condition, and the official must be 

subjectively aware of and consciously disregard a risk to the inmate’s health or 

safety. Farmer, 511 U.S. at 837; Sherrod, 223 F.3d at 610. 

A. IDOC Directors and prison wardens 

 (Randle, Taylor, Ramos, Hardy, Gaetz and Davis) 

 Randle and Taylor were each Director of the IDOC at relevant times. 

Neely alleges that Randle and Taylor were responsible for the “organization and 

supervision of all state-run correctional facilities in Illinois” and that they were 

responsible for providing medical services to inmates. 2d Am. Compl. ¶¶ 6-7. 

Neely also alleges that Randle and Taylor “had personal knowledge of the 

deliberately indifferent provisions of medical care challenged in this case,” that 

“such care was being imposed on inmates at Pinckneyville and Stateville,” and 

that they condoned these practices. Id. ¶ 7. 

 Neely alleges that defendants Ramos and Hardy (Stateville wardens) and 

Gaetz and Davis (Pinckneyville wardens) were responsible for providing medical 

care to inmates and for supervising correctional and medical personnel at their 

respective correctional centers. See 2d Am. Compl. ¶¶ 12, 14, 15 & 17. Neely 

alleges that he filed a number of emergency grievances that were received by 

certain of the wardens, putting them on notice of his condition and need for 

treatment, but that they did not take action. Id. ¶¶ 40 & 43. 

 The Seventh Circuit has stated that “[f]or the purposes of a motion to 

dismiss, a warden cannot be assumed to be directly involved in the prison's day-
7 

to-day operations.” Steidl v. Gramley, 151 F.3d 739, 741-42 (7th Cir. 1998) (“It is 

simply the uniform application of a rule of construction: an inference that a 

warden is directly involved in a prison’s daily operations is not reasonable.”). A 

prison warden is “entitled to relegate to the prison’s medical staff the provision of 

good medical care.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). If 

there is “no personal involvement by the warden [in an inmate’s medical care] 

outside the grievance process,” that is insufficient to state a claim against the 

warden. Gevas v. Mitchell, 492 Fed. Appx. 654, 660 (7th Cir. 2012). Neely 

alleges no actual involvement by the wardens in his medical care other than by 

dealing with, or allegedly ignoring, his grievances. This is insufficient to state a 

claim against them. 

 Neely’s allegations that the wardens supervised medical and correctional 

personnel are not enough to tip the balance in his favor. The Seventh Circuit has 

made it clear not only that a warden is generally entitled to delegate medical care 

to medical staff, but also that “[l]iability depends on each defendant’s knowledge 

and actions, not on the knowledge and actions of persons they supervise.” 

Burks, 555 F.3d at 594. Neely does not allege that the wardens were aware 

(other than via grievances) of conduct by medical or correctional personnel that 

was directed toward him. 

 The same is true of Neely’s claims against Randle and Taylor, who were 

directors of the IDOC during relevant periods. Neely has not plausibly alleged 

that either Randle or Taylor was subjectively aware of his medical condition or 

consciously disregarded a risk to his health. Although Neely alleges that Taylor 
8 

received a number of the emergency grievances that he filed,1

 as with the 

wardens, this is not enough to amount to the requisite personal involvement. 

 For these reasons, the Court dismisses Neely’s individual-capacity claims 

against the warden and IDOC director defendants, except for his Monell claims 

against those defendants, which the Court will address below. 

B. Stateville medical director (Dr. Mahon) 

 Neely originally sued Dr. Parthasarathi Ghosh, who was medical director 

at Stateville, but he recently substituted Dr. Sylvia Mahon after learning that she 

was the medical director during the relevant period. It is unclear from Neely’s 

complaint whether he asserts a claim against Dr. Mahon on any basis other than 

Monell. If that is Neely’s intention, he has failed to state a claim against Dr. 

Mahon (the Court will address the Monell issue later). 

 Neely alleges that Dr. Mahon, in addition to being a treating doctor, had 

the overall responsibility for providing medical service to inmates, including 

Neely. See 2d Am. Compl. ¶ 26. Neely does not allege, however, that he ever 

dealt with or spoke to Dr. Mahon or that she received any of his grievances. Nor 

does Neely provide any allegation that Dr. Mahon was aware of his condition or 

treatment. His allegation that Dr. Mahon, as medical director, had overall 

responsibility for medical care at Stateville is insufficient without more to amount 

to a plausible allegation of her personal involvement, let alone conscious 

disregard of a risk to Neely’s health. Neely has failed to state a claim against Dr. 

 

1

 It is unclear from the second amended complaint whether Neely contends that 

his grievances were received by the Taylor who is identified as IDOC Director or 

by the Taylor who is identified as a Wexford CMT. To the extent Neely intends to 

refer to Taylor the IDOC Director, this analysis applies. 
9 

Mahon in his current complaint (again, other than a Monell claim, which the Court 

will address shortly). 

C. Medical / dental staff (Dr. Gardener, Dr. Mitchell, 

 dental hygienist Searby, CMT Taylor, RN Collins, 

 RPN Rector, LPN Harmon, and Ms. Lanek) 

 Neely sufficiently alleges personal involvement and deliberate indifference 

with regard to defendants Gardener, Mitchell, Searby, Taylor, Collins, Rector, 

Harmon, and Lanek, all of whom are medical staff personnel who dealt with him 

at the prisons. “[K]nowledge and intent ... need not be covered in detail; Fed. R. 

Civ. P. 9(b) provides that ‘[m]alice, intent, knowledge, and other conditions of a 

person's mind may be alleged generally.’” Burks, 555 F.3d at 594. “A prisoner's 

statement that he repeatedly alerted medical personnel to a serious medical 

condition, that they did nothing in response, and that permanent injury ensued, is 

enough to state a claim on which relief may be granted-if it names the persons 

responsible for the problem.” Id.; see also McGowan v. Hulick, 612 F.3d 636, 

640 (7th Cir. 2010) (delays in referring inmate to dentist or oral surgeon over the 

course of several months while inmate continued to suffer significant pain and his 

condition deteriorated was sufficient to state a claim of deliberate indifference); 

Boyd v. Knox, 47 F.3d 966 (8th Cir. 1995) (delay of care coupled with knowledge 

of inmate's suffering, especially after observing inmate's swollen and infected 

mouth, could support a finding of an Eighth Amendment violation). 

 This is, in essence, what Neely has alleged with regard to the medical 

staff defendants. His complaint sets out allegations that he was seen or treated 

by each of these defendants over the course of several months and that each of 
10 

them consciously disregarded his serious medical condition, failed to provide 

adequate care, and failed to document his dental condition and related pain. 

Although defendants contend that they were unaware that Neely suffered an 

objectively serious medical condition or that he did not present objective 

complaints to them, these contentions involve factual issues that are not 

appropriately addressed on a motion to dismiss for failure to state a claim. 

Finally, though defendants point to Neely’s allegations indicating that he received 

some medical attention, this does not defeat his claim. Deliberate indifference to 

a serious medical need can be manifested by ”woefully inadequate action” as 

well as by inaction. See, e.g., Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 

1999). 

 For these reasons, the Court declines to dismiss Neely’s individualcapacity claims against the medical staff defendants. 

III. Monell and official capacity claims 

 Neely concedes that Wexford Health Sources, Inc. cannot be held 

vicariously liable under a respondeat superior theory of liability. See Pl.’s Consol. 

Resp. to Defs.’ Mot. to Dismiss at 11 n.2. He also concedes that the Eleventh 

Amendment bars his claims against the IDOC defendants in their official 

capacities. See id. at 2 n.1. 

 Neely also alleges, however, that defendants Randle and Taylor (both 

IDOC directors), Hardy and Ramos (Stateville wardens), Gaetz and Davis 

(Pinckneyville wardens), Wexford Health Services, and Drs. Gardner and Mahon 

(medical directors of Pinckneyville and Stateville) are liable under Monell v. Dep't 
11 

of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Neely alleges that 

these defendants established, maintained, and condoned policies and practices 

that caused the alleged deprivation of his constitutional rights. See 2d Am. 

Compl. ¶¶ 49-90. 

 An official policy, custom, or practice is actionable under Monell in three 

types of situations: where there is an express policy that, when enforced, causes 

a constitutional deprivation; a widespread practice that, although not expressly 

authorized by law or policy, is so settled that it constitutes a “custom or usage” 

that effectively has the force of law; or causation of the plaintiff’s constitutional 

injury by a person with final policy-making authority. See, e.g., Garrison v. 

Burke, 165 F.3d 565, 571-72 (7th Cir. 1999); see also, Perkins v. Lawson, 312 

F.3d 872, 875 (7th Cir. 2002); Brokaw v. Mercer County, 235 F.3d 1000, 1013 

(7th Cir. 2000). In his second amended complaint, Neely alleges that his injuries 

and the alleged violations of his constitutional right to adequate medical care 

were directly and proximately caused by the policies and widespread practices 

regarding medical treatment that these defendants established or of which they 

were aware and deliberately indifferent. 

 Neely has included sufficient “factual content to nudge his claim . . . 

across the line from conceivable to plausible.” McCauley v. City of Chicago, 671 

F.3d 611, 618 (7th Cir. 2011) (internal quotation marks omitted). In particular, his 

allegations of routine delays and denials of medical care and nonresponsiveness to requests for care, combined with the more specific factual 

allegations regarding how he was dealt with at the two institutions, are sufficient 
12 

to state claims under Monell and to put the defendants on notice of what he is 

alleging. Defendants are not entitled to dismissal on this basis. 

IV. Qualified immunity 

 The individual Wexford defendants also argue that they are entitled to 

dismissal based on the doctrine of qualified immunity. They contend that Neely 

has not sufficiently alleged that their violated any clearly established 

constitutional rights. To assess a claim of qualified immunity, the Court 

determines, first, whether the plaintiff has alleged the deprivation of an actual 

constitutional right, and second, whether the right was clearly established at the 

time of the violation. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999); Doyle 

v. Camelot Care Ctrs., Inc., 305 F.3d 603, 616. The “right must be sufficiently 

clear that a reasonable official would understand that what he is doing violates 

that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). 

 The Court cannot conclude from the face of the complaint that the alleged 

deprivations of medical care that Neely describes were insufficiently serious to 

give rise to a viable Eighth Amendment claim. To put it another way, Neely has 

asserted a facially plausible claim for violation of his Eighth Amendment right 

against cruel and unusual punishment, given his allegations that he was denied 

proper medical care over the course of at least six months for a highly painful 

condition that medical professionals had diagnosed as requiring further 

treatment. And it is beyond question that the right at issue was clearly 

established long before the events that Neely has described. 
13 

 It is conceivable that some of the defendants may be able to demonstrate 

at the summary judgment stage they are entitled to qualified immunity. At the 

current juncture, however, their arguments fail. As the Seventh Circuit has 

stated, qualified immunity is “almost always a bad ground for dismissal” under 

Rule 12(b)(6). See Jacobs v. City of Chicago, 215 F.3d 758, 765 n. 3 (7th Cir. 

2000); id. at 775 (Easterbrook, J., concurring). A plaintiff is not required to plead 

around an anticipated qualified immunity defense. See Gomez v. Toledo, 446 

U.S. 635, 639–40 (1980). To put it another way, Neely is not required to prove 

the absence of qualified immunity in his complaint. At this stage the question is 

whether, taking the complaint’s factual allegations in the light most favorable to 

Neely, there is a plausible basis for a claim that would overcome a qualified 

immunity defense. The answer to that question is yes. If, as Neely alleges, the 

Wexford defendants were aware of his ongoing serious dental condition and 

ignored him or put him off as he alleges, they would not be entitled to qualified 

immunity. As the Court has indicated, even if some defendants may have taken 

some action to treat Neely and deal with his complaints, a defendant may still be 

liable under section 1983 if he takes woefully inadequate action. See, e.g., 

Reed, 178 F.3d at 854. 

Conclusion 

 For the reasons stated above, the Court grants defendants’ motions to 

dismiss in part and denies them in part. The Court dismisses plaintiff’s official 

capacity claims against the IDOC defendants and his respondeat superior claim 

against Wexford Health Sources, Inc. The Court also dismisses plaintiff’s claims 
14 

against defendants Randle, Taylor, Ramos, Hardy, Gaetz, Davis, and Mahon, 

except to the extent he seeks to hold them liable under a Monell theory. The 

Court otherwise denies defendants’ motions. Defendants are directed to answer 

the complaint by no later than July 18, 2013. 

 

 MATTHEW F. KENNELLY 

 United States District Judge 

Date: June 29, 2013