IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ELBERT WILLIAMS, ) 

 ) 

 Plaintiff, ) 

 ) 

 vs. ) No. 12 C 1875 

 ) 

DANIELLE ERICKSON and ) 

WEXFORD HEALTH SOURCES, INC., ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge: 

 Plaintiff Elbert Williams, a prisoner in the Illinois Department of Corrections, has 

asserted claims under federal and state law against Danielle Erickson and Wexford 

Health Sources, Inc. arising from his contention that he was repeatedly refused 

assistance in changing his colostomy bag over a four hour period. Defendants have 

moved to dismiss Williams’ complaint for failure to state a claim. For the reasons stated 

below, the Court denies defendants’ motion except with respect to one of Williams’ state 

law claims, on which the Court defers ruling.

Facts 

 The Court takes the following facts from the allegations in Williams’ complaint. 

Williams is an inmate at Stateville Correctional Center. He suffers from ulcerative colitis 

and underwent a colostomy in February 2011. As a result of the colostomy, Williams’ 

fecal waste is passed into a colostomy bag. He is able to change his own colostomy 

bag. New colostomy bags, however, come in sealed packages, and as an inmate, 

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Williams does not have access to the tools needed to open the packages. As a result, 

he is dependent on prison staff to provide him with new colostomy bags. 

 In March 2011, Williams underwent a post-surgical examination at a hospital in 

Chicago. Upon his return to Stateville, he was housed at the prison’s health care unit, 

which is operated and staffed by Wexford. While Williams was at the health care unit, 

his colostomy bag overfilled, causing it to detach from his body. Williams alleges that 

he asked Erickson, a nurse at the facility, to open the seal on a new colostomy bag so 

that he could change the bag. He alleges that Erickson repeatedly refused his 

requests. As a result, Williams alleges, he was forced to spend four hours covered in 

feces before another staff member assisted him. Williams has sued to recover 

damages. 

 Williams, who is represented by court-appointed counsel, asserts six claims in 

his amended complaint. Counts 1 and 2 are claim under the Eighth Amendment to the 

Constitution, alleging deliberate indifference to serious medical needs and improper 

conditions of confinement. Count 3 is a state law “healing art malpractice” claim. 

Counts 4 and 5 allege, respectively, intentional infliction of emotional distress and 

negligent infliction of emotional distress. Count 6 is a claim of “institutional negligence” 

against Wexford. 

Discussion 

 Defendants have moved to dismiss all six claims pursuant to Federal Rule of 

Civil Procedure 12(b)(6). When considering a motion to dismiss under that Rule, the 

Court accepts the facts alleged in the complaint as true and “draws all possible 

inferences in [the plaintiff’s] favor.” Heyde v. Pettinger, 633 F.3d 512, 517 (7th Cir. 

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2011). To survive the motion, the complaint must include enough facts to state a claim 

for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A 

claim is plausible on its face “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. 

1. Count 1 – Eighth Amendment deliberate indifference claim 

 A prison official violates the Eighth Amendment’s bar against cruel and unusual 

punishment if she displays “deliberate indifference to serious medical needs of 

prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A claim of deliberate 

indifference has both an objective and a subjective component. The objective 

component – which is the one that defendants focus upon in their motion – requires the 

plaintiff to show that his medical need was objectively serious. See, e.g., Greeno v. 

Daley, 414 F.3d 645, 653 (7th Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 834 

(1994)). A medical need is considered objectively serious if it has been diagnosed by a 

physician as requiring treatment or if it is “so obvious that even a lay person would 

recognize the necessity for a doctor’s attention.” Id. 

 Williams’ allegations regarding his colostomy and his resulting need for medical 

equipment are sufficient to satisfy either or both of these criteria. First, it is a 

reasonable inference from Williams’ complaint that a physician prescribed the use of 

colostomy bags to capture the fecal waste discharged through the surgical opening that 

was created as a result of his colostomy. Second, a reasonable fact finder easily could 

find it obvious to any lay person that when a colostomy bag is full, it needs to be 

replaced, and if it has become detached, this needs to be remedied. Indeed, it would 

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be difficult to state the contrary proposition with a straight face. See Ferebee v. Cejas, 

161 F.3d 2 (4th Cir. 1998) (unpublished); cf. Wellman v. Faulkner, 715 F. 2d 269, 274 

(7th Cir. 1983) (describing lack of sufficient colostomy bags as an aspect of plaintiffs’ 

proof of deliberate indifference to prisoners’ serious medical needs). The absence of 

physical pain may be a factor, but it is not dispositive; indeed, pain is not one of the 

requirements for proving a serious medical need. See, e.g., Seventh Cir. Civil Jury 

Instr. 7.12 & 7.13 (2009). 

2. Count 2 – conditions of confinement claim 

 The Eighth Amendment is violated if officials are “deliberately indifferent to 

conditions that deny the minimal civilized measures of life necessities.” Budd v. Motley, 

711 F.3d 840, 842 (7th Cir. 2013). This includes adequate sanitation and hygiene. Id. 

 Defendants argues that Williams’ allegations amount only to “mere discomfort or 

inconvenience” and that “’[i]nmates cannot expect the amenities, conveniences and 

services of a good hotel.’” Defs.’ Mot. at 3 (quoting Harris v. Fleming, 839 F.2d 1232, 

1235 (7th Cir. 1988). That is a far cry from what Williams has alleged. He contends 

that he required to sit in fecal waste for four hours while medical personnel who had the 

means of remedying the problem deliberately ignored him. That is anything but a claim 

seeking the “services of a good hotel.” See, e.g., Garrett v. Schwatz, No. 10-cv-955-

GPM, 2011 WL 3207135, at *3-4 (S.D. Ill. July 27, 2011) (collecting cases). A 

reasonable inference may likewise be drawn that being exposed to fecal waste for that 

period of time may represent a health hazard. 

 Defendants also argue that because Williams concedes that Erickson told him 

that the health care unit did not have scissors, that demonstrates the absence of 

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deliberate indifference. Williams does not, however, concede the truth of Erickson’s 

statement. And even if the statement was true as far as it went, the Court cannot say at 

this stage of the proceedings that no other reasonable alternative was available – such 

as using some other tool or going somewhere else to obtain scissors. Defendants are 

not entitled to dismissal of Count 2. 

3. Count 3 – healing art malpractice claim

 A provision of the Illinois Code of Civil Procedure requires that in any action for 

damages “by reason of medical, hospital, or other healing art malpractice,” the plaintiff 

must file with his complaint an affidavit stating that the affiant has reviewed the facts 

with a knowledgeable and qualified “health professional” who practices in the particular 

field and that the health professional has determined in a written report “that there is a 

reasonable and meritorious cause” for the filing of the lawsuit. A copy of the written 

report must also be included. See 735 ILCS 5/2-622(a). Williams provided no such 

affidavit or report with his amended complaint. Defendants move to dismiss Count 3 on 

this basis. 

 Under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny, when state 

law supplies the rule of decision for a case in federal court, the federal court applies 

state substantive law but federal procedural law. See, e.g., Gacek v. Am. Airlines, Inc., 

614 F.3d 298, 301 (7th Cir. 2010). Williams argues, among other things, that section 2-

622(a)’s requirements are procedural, not substantive, and thus do not apply. 

 The Court is unaware of any Seventh Circuit decision that decides this issue,1

 

1 Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000), cited by defendants, did not address the Erie 

issue but rather implicitly assumed that section 2-622 applies in federal court while concluding 

that the district court in that case had erred in dismissing a non-compliance malpractice claim 

with prejudice rather than without prejudice. See id. at 613-14. 

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and other courts have divided on the point. The Court believes that this issue requires 

more extended review and treatment. It therefore defers ruling on this particular issue 

for the time being and will address it in due course. The Court notes that because of 

the near-complete overlap between this claim and the others Williams has asserted, 

deferral of ruling will not significantly affect discovery, at least in its early stages. 

4. Count 4 – intentional infliction of emotional distress 

 To state a claim for intentional infliction of emotional distress under Illinois law, 

the plaintiff must allege that the defendant’s conduct was extreme and outrageous, the 

defendant knew it was highly probable that her conduct would cause the plaintiff severe 

emotional distress, and the conduct did in fact cause the plaintiff severe emotional 

distress. See, e.g., Fox v. Hayes, 600 F. 3d 819, 842 (7th Cir. 2010). Defendants argue 

that the first element is lacking in this case because only a single incident was involved. 

Williams alleges, however, that Erickson refused him aid at least four times. Am. 

Compl. ¶ 24. And although repetition may be a significant factor in determining whether 

conduct was extreme and outrageous, the Court is unaware of any case saying that 

repetition is required in order to state a claim. Cf. Pavlik v. Kornhaber, 761 N.E.2d 175, 

187, 326 N.E.2d 731, 746 (2001) (“It may be the pattern, course and accumulation of 

acts that make the conduct sufficiently extreme to be actionable, whereas one instance 

of such behavior might not be.” (emphasis added). At this stage of the proceedings, 

the Court cannot say that it is implausible that deliberate conduct causing Williams to sit 

in fecal waste for four hours is sufficiently extreme or outrageous to be actionable. 

 The Court also rejects defendants’ argument that Williams has alleged only 

embarrassment, which is not actionable. Williams has specifically alleged that the 

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condition was such that no reasonable person should be expected to endure it, which is 

all the law requires. See Am. Compl. ¶ 45. The difference between actionable and 

non-actionable conduct in this area can often be a matter of degree. Until there is 

further factual development, the Court cannot say that Williams’ allegations are legally 

insufficient to state a claim. 

5. Count 5 – negligent infliction of emotional distress 

 Defendants’ primary argument in favor of dismissal of Williams’ claim for 

negligent infliction of emotional distress is that he cannot satisfy the so-called “zone of 

danger” rule. This rule applies, however, only in cases involving claims by bystanders. 

The Illinois Supreme Court has expressly held that it does not apply to direct victims, 

which is what Williams alleges he was. Corgan v. Muehling, 143 Ill. 2d 296, 304, 5674 

N.E.2d 602, 606 (1991). 

 The Court also rejects defendant’s contention that Count 5 should be dismissed 

because it duplicates other claims. It quite plainly does not; it alleges a different level of 

fault from Count 4. 

6. Count 6 – “institutional negligence” 

 The Court agrees with Williams that Count 6, his “institutional negligence” claim, 

states a viable claim. Illinois law recognizes an administrative and managerial duty on 

the part of a hospital to review and supervise the treatment of its patients. Advincula v. 

United Blood Servs., 176 Ill. 2d 1, 15, 678 N.E. 2d 1009, 1023 (1996). Williams alleges 

that Wexford did an unreasonable job of selecting, staffing and supervising its 

employees. See Am. Compl. ¶¶ 57-66. This is sufficient to state a claim under Illinois 

law. The Court disagrees with defendants’ argument that Williams is attempting to 

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replead a dismissed section 1983 claim against Wexford here; Count 6 quite plainly 

asserts a claim under state law. 

Conclusion

 For the reasons stated above, the Court denies defendants’ motion to dismiss 

with respect to Counts 1, 2, 4, 5, and 6, and defers ruling with respect to Count 3. 

Defendants are directed to answer all claims other than Count 3 by no later than 

September 11, 2013. 

 

 MATTHEW F. KENNELLY 

 United States District Judge 

Date: August 21, 2013 

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