IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

Donzell Thomas 

 Plaintiff, 

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 v. ) No. 20 C 4564 

Samuel Chmell, et al. 

 Defendants. 

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MEMORANDUM OPINION AND ORDER 

 Donzell Thomas, an inmate at Stateville Correctional Center, 

sues David Gomez, individually and in his official capacity as 

Warden of Stateville; Rob Jeffreys, individually and in his official 

capacity as Acting Director of Stateville; Marlene Henze, 

individually and in her official capacity as Medical Director of 

Wexford Health Sources, Inc.; the Illinois Department of 

Corrections; and Wexford Health Sources, Inc., alleging that they 

violated the Eighth Amendment by providing constitutionally 

inadequate medical care for ongoing symptoms he experienced after 

undergoing knee replacement surgery.1 In Count I of the complaint, 

1 The First Amended Complaint also names as defendants Samuel 

Chmell, who is a doctor at the University of Illinois Hospital, and 

the Hospital itself, but plaintiff has dismissed these parties 

voluntarily. 

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plaintiff asserts a claim of deliberate indifference to his serious 

medical needs. In Count II, he claims that the injuries he alleges 

were caused by unconstitutional policies, practices, or customs.2 

In separately filed motions, each defendant has moved to 

dismiss the complaint in its entirety. The motions are resolved as 

follows. 

I. 

 The first amended complaint recounts that on September 24, 

2019, plaintiff was transported to the University of Illinois 

Hospital (“UIH”) for knee replacement surgery based on a referral 

by Dr. Henze. Plaintiff awoke from his surgery in “excruciating 

pain in the lower part of his left leg and ankle area,” which a 

nurse said was normal and offered pain medication. Compl. at ¶ 26. 

An hour or so later, two resident physicians examined plaintiff’s 

leg and said that everything looked fine. 

Later that evening, two nurses came to see plaintiff and 

reported that the doctor wanted them to assist him in trying to 

walk to the door. After only a few steps, however, plaintiff became 

dizzy and returned to his bed, asking the nurses to inform the 

doctor that his leg was severely painful and hot. When a nurse 

returned to check plaintiff’s vital signs at around 2:00 or 3:00 

2 Although plaintiff asserts each claim against “defendants,” I 

construe Count I as asserting individual liability claims for 

deliberate indifference against each of Henze, Gomez, and Jeffreys, 

and Count II as Monell claims against Wexford and IDOC. 

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am, he asked for something for his pain and again told the nurse 

that his lower leg was extremely hot. Approximately an hour later, 

plaintiff received pain medication, but it was not effective. Id. 

at ¶¶ 28-29. 

 The next morning, September 25, 2019, plaintiff again 

attempted to walk with the assistance of two nurses and a walker, 

but he had to return to his bed after only ten steps. Despite 

excruciating pain and hotness in his leg, a physician told a 

correctional officer that plaintiff was to be discharged. 

Correctional staff advised plaintiff to invoke “Condition H,” which 

he believed allowed him to receive immediate medical care at the 

hospital. Plaintiff attempted to exercise “Condition H,” informing 

hospital staff that he needed to see “necessary and appropriate 

medical providers,” but he was denied such care. Plaintiff was 

discharged the same day, after security or law enforcement personnel 

informed him that “Condition H did not apply to inmates.” Compl. at 

¶ 33. 

Back at Stateville, plaintiff’s condition worsened. The severe 

pain in his lower leg continued, and his leg remained “hot and began 

turning a dark red color.” Id. at ¶ 36. Plaintiff returned to UIH 

on October 7, 2019, where Dr. Chmell, the physician who had 

supervised his surgery, examined him and “immediately ordered xrays” after noting that plaintiff’s leg was “unusually hot.” Id. at 

¶ 37. After the x-rays were taken, Dr. Chmell informed plaintiff 

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that he had two hairline fractures in his tibia/fibula that most 

likely occurred during his surgery and that would heal on their own 

in six to nine weeks.3 

Over the ensuing weeks, plaintiff attempted physical therapy 

at Stateville but stopped because “the pain was too much.” Id. at 

¶ 38. He returned to UIH in late October or early November where he 

saw a different orthopedic doctor. This doctor told him that he did 

not have any hairline fractures and ordered additional scans to 

determine the cause of the pain and swelling in plaintiff’s lower 

leg. Id. On January 29, 2020, plaintiff returned to UIH for an MRI, 

but the procedure was discontinued after 40 minutes because it was 

too painful. Id. at ¶ 40. The MRI was rescheduled for February 29, 

2020, and was completed at that time. 

After his MRI, plaintiff consulted two orthopedic surgeons at 

UIH who confirmed that plaintiff had no fractures in his tibia or 

fibula and found his results “highly suspicious for multifocal 

longitudinally oriented intramedullary infarcts within the proximal 

and distal tibial diaphysis.” Compl. at ¶ 43. Both physicians found 

these findings “odd” and requested additional tests and the opinion 

of a bone specialist, stating that plaintiff’s condition was 

3 Plaintiff alleges that “[t]his conclusion was false, and Dr. 

Chmell knew or should have known it to be false at the time he made 

it.” While this allegation was presumably relevant to plaintiff’s 

claims against Dr. Chmell and/or UIH, it does not appear to be 

relevant to plaintiff’s claims against the remaining defendants, as 

he does not allege any involvement by them in the diagnosis. 

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“something they’ve never dealt with before.” Id. Back at Stateville, 

plaintiff consulted Dr. Henze, who became “alarmed” after seeing 

the MRI results and told plaintiff that “infarcts” cause “death, 

blood clots, and heart attacks” when they get into the blood, and 

said further that she had never seen infarcts in the bones. Dr. 

Henze confirmed that plaintiff would be seen “soon” by a bone 

specialist. Id. at ¶ 44. Plaintiff believes that he was scheduled 

for consultation with a bone specialist in mid-April, but his 

appointment was canceled due to the Covid-19 shut down. In June of 

2020, Dr. Henze told plaintiff that UIH’s orthopedic department 

“did not want to see Plaintiff unless he had broken bones or was in 

a life or death situation.” Id. at ¶ 46. Nevertheless, on June 24, 

2020, plaintiff underwent surgery on his neck at UIH, at which time 

he complained that his leg was hurting and asked to be tested for 

signs of a blood clot. After an ultrasound confirmed the absence of 

blood clots, he was discharged and returned to Stateville without 

consulting anyone in the UIH’s orthopedic department. 

Plaintiff filed grievances with the Illinois Department of 

Corrections on October 8, 2019, April 21, 2020, and June 19, 2020, 

complaining about his deficient medical care. In each grievance, he 

complained that Dr. Henze refused to see him concerning his leg 

condition. As of the date of his amended complaint, i.e., February 

5, 2021, plaintiff’s pain in his leg was ongoing, and he had not 

been seen by a bone specialist. Id. at ¶¶ 47-48. 

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II. 

 A motion to dismiss tests the sufficiency of a complaint, not 

the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 

1520 (7th Cir. 1990). For present purposes, I accept plaintiff’s 

factual allegations as true and draw all reasonable inference in 

his favor. See Lavalais v. Village of Melrose Park, 734 F.3d 629, 

632 (7th Cir. 2013). I need not, however, accept the truth of any 

legal conclusions plaintiff asserts. Community Bank of Trenton v. 

Schnuck Markets, Inc., 887 F.3d 803, 825 (7th Cir. 2018). 

The Eighth Amendment protects incarcerated people from prison 

conditions that cause “the wanton and unnecessary infliction of 

pain.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Pyles v. Fahim, 

771 F.3d 403, 408 (7th Cir. 2014). “Denying or delaying treatment 

to an incarcerated person suffering from avoidable pain” can give 

rise to an Eighth Amendment claim. Howell v. Wexford Health Sources, 

Inc., 987 F.3d 647, 653 (7th Cir. 2021). To prevail on such a claim, 

the plaintiff must show that he 1) suffered from an objectively 

serious medical condition; and 2) that the defendant was 

deliberately indifferent to a risk of serious harm from that 

condition. Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). 

Section 1983 creates a private right of action against any 

“person” who deprives another, under the color of law, of rights 

guaranteed by federal law, including the Constitution. 42 U.S.C. § 

1983. “A key part of § 1983’s doctrinal structure is the difference 

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between individual and governmental liability.” Howell 987 F.3d at 

653. Individual liability requires personal involvement in the 

constitutional violation and “depends on each defendant’s knowledge 

and actions, not on the knowledge or actions of persons they 

supervise.” Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009). 

A local government may be liable for damages under § 1983 if the 

constitutional violation is caused by: “(1) an express government 

policy; (2) a widespread and persistent practice that amounted to 

a custom approaching the force of law; or (3) an official with final 

policymaking authority.” Howell 987 at 653. In other words, neither 

an individual supervisor nor a governmental entity can be held 

vicariously liable under § 1983. See Burks, 555 F.3d at 594-95; 

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 

691 (1978). 

The Monell doctrine governing municipal liability also applies 

to private corporations such as Wexford. See Shields v. Illinois 

Dep’t of Corrections, 746 F.3d 782, 786 (7th Cir. 2014). 

Accordingly, the “critical question” bearing on Wexford’s liability 

is whether its policies or customs caused the constitutional 

violations plaintiff alleges. Glisson v. Indiana Dep’t of 

Correction, 849 F.3d 372, 379 (7th Cir. 2017) (en banc). 

Applying these principles in the context of Eighth Amendment 

claims brought by prisoners, courts have held that a non-medical 

prison supervisor such as a warden or prison director “is entitled 

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to relegate to the prison’s medical staff the provision of good 

medical care,” Burks, 555 F.3d at 595, and may be held individually 

liable only if he “knows of and disregards an excessive risk to 

inmate health or safety,” Farmer v. Brennan, 511 U.S. 825, 837 

(1994). See also Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 

2011) (supervisor “must know about the conduct and facilitate it, 

approve it, condone it, or turn a blind eye”). As for private 

corporations such as Wexford, because responsibility for the care 

of incarcerated people may be “so diffused that no individual is 

accountable for failures to provide adequate healthcare,” Howell 

987 F.3d at 655, “a policy to do nothing (a ‘policy of inaction’)” 

can support Monell liability if the plaintiff can show “that the 

institution made a conscious decision not to act,” Walker v. Wexford 

Health Sources, Inc., 940 F.3d 954, 966 (7th Cir. 2019) (quoting 

Glisson, 849 F.3d at 379-80, 381)). 

Individual Liability 

To survive dismissal of his deliberate indifference claims, 

plaintiff must allege sufficient factual material to inform the 

individual defendants of the basis for his claim and to raise a 

plausible inference that they “acted with a sufficiently culpable 

state of mind,” which is to say, something akin to recklessness. 

Arnett 658 F.3d at 751. The first amended complaint does not cross 

this threshold as to defendants Gomez and Jeffreys. Indeed, it 

attributes no conduct at all to these defendants, whose names appear 

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only in the case caption and in paragraphs identifying them as 

parties. 

“The state-of-mind element is measured subjectively: The 

defendant must know of facts from which he could infer that a 

substantial risk of serious harm exists, and he must actually draw 

the inference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 

658, 662 (7th Cir. 2016). The first amended complaint does not 

allege any facts from which to draw an inference that Gomez or 

Jeffreys was aware of a serious risk to plaintiff. Plaintiff argues 

that Illinois law and Department of Corrections regulations 

establish obligations relating to inmate grievance procedures that 

Gomez and Jeffreys failed to discharge. Setting aside that a theory 

of individual liability premised on these defendants’ failure to 

establish or conduct appropriate grievance procedures is not one 

that emerges from plaintiff’s factual allegations (which are silent 

as to Stateville’s grievance procedures), the Seventh Circuit “has 

consistently held that 42 U.S.C. § 1983 protects plaintiffs from 

constitutional violations, not violations of state laws” or 

departmental regulations. Thompson v. City of Chicago, 472 F.3d 

444, 454 (7th Cir. 2006) (internal quotation marks and citation 

omitted). See also Neely v. Randle, No. 12 C 2231, 2013 WL 3321451, 

at *3 (N.D. Ill. June 29, 2013) (“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 

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the warden.”) (citing Gevas v. Mitchell, 492 Fed. Appx. 654, 660 

(7th Cir. 2012) (alterations in Neely). 

Plaintiff’s cited authorities are not to the contrary, as the 

complaints in those cases asserted a factual basis beyond the mere 

filing of grievances to suggest that prison officials knew about 

and ignored the plaintiffs’ serious medical needs. See, e.g., Hardy 

v. Godinez, No. 12 C 6033, 2017 WL 2569605, at *8 (N.D. Ill. June 

12, 2017) (“Plaintiff’s amended complaint asserts he notified each 

of the Defendant officials...through grievances, letters, and 

personal conversations about the adverse living conditions”); Ruiz 

v. Williams, 144 F. Supp. 3d 1007, 1015 (N.D. Ill. 2015) (in 

addition to filing four grievances, the plaintiff sent “numerous 

letters” to the warden regarding his medical condition and severe 

pain). By contrast, the complaint in this case offers no facts 

suggesting that either Gomez or Jeffreys actually knew about 

plaintiff’s medical condition or had any personal involvement in 

the constitutional violations he alleges. Accordingly, it fails to 

state a claim against them under § 1983.4

Plaintiff has, however, pled sufficient facts to raise a 

plausible damages claim against Dr. Henze in her individual 

capacity. Assuming, as I must, the truth of plaintiff’s allegations, 

4 Gomez and Jeffreys will remain in the case in their official 

capacities, however, as plaintiff seeks injunctive relief in 

addition to damages, and they “would be responsible for ensuring 

that any injunctive relief is carried out.” Gonzalez v. Feinerman, 

663 F.3d 311, 315 (7th Cir. 2011). 

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Dr. Henze immediately recognized the seriousness of plaintiff’s 

“infarctus” diagnosis, which she understood as a condition that 

could cause “death, blood clots, and heart attacks.” Given this 

understanding, even assuming that UIH was restricting consultations 

during the peak of the Covid-19 crisis and seeing only patients 

with “broken bones” or in a “life or death situation,” Dr. Henze’s 

own assessment of plaintiff’s condition suggests that he fit that 

bill. Accordingly, plaintiff is entitled to discovery to 

investigate what steps, if any, Dr. Henze took to ensure that 

plaintiff receive the specialist consult she deemed appropriate, 

and to uncover why, a year later, plaintiff still had not been seen 

(and, for all that the present record reveals, still has not been 

seen) by a bone specialist. 

Governmental/Institutional Liability 

Although plaintiff names two separate institutional 

defendants—IDOC and Wexford—his complaint does not specify whose 

policies, practices, or customs he claims are responsible for his 

injuries. IDOC has not appeared in the case (although the docket 

indicates that it was served with process), but it must be dismissed 

in any event because “it is not a person subject to suit under 

§ 1983.” Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017). Indeed, 

plaintiff’s response brief clarifies that Wexford is the 

institutional target of his Monell claim. See Resp., DN 47 at 6-7. 

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The complaint alleges that the following (Wexford) “policies, 

practices, and/or customs” violated his Eighth Amendment rights: 

 A failure to properly examine prisoners’ needs for 

continued medical care onsite once notified; 

 A failure to properly meet with prisoners to evaluate 

and discuss their medical conditions, complaints and 

needs; 

 A failure to properly address prisoners’ medical 

conditions and needs and ensure appropriate treatment 

and care is provided; 

 A failure to properly schedule and secure follow-up 

medical appointments, follow orders and 

recommendations of medical providers; and 

 A failure to provide necessary access and secure 

appropriate treatment with medical specialists when 

medically necessary. 

Compl. at ¶ 61(A)-(E). Wexford argues that to survive dismissal, 

plaintiff must allege something more than his individual experience 

to suggest the existence of a policy or widespread practice, and 

that the facts he alleges are generally insufficient to suggest the 

existence of a policy or widespread practice. I disagree. 

As to the first argument, while it is true that a common path 

toward Monell liability begins with allegations of “a widespread 

practice or custom affecting other individuals,” Howell, 987 F.3d 

at 655, “[t]here is no magic number of injuries that must occur 

before [a defendant’s] failure to act can be considered deliberately 

indifferent,” Glisson 849 F.3d at 382, and “repeated deliberate 

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indifference toward the plaintiff” himself—which is what plaintiff 

asserts here—may be adequate, Howell, 987 F.3d at 655. As to 

Wexford’s second argument, the very decision it cites for the 

pleading standard that applies to Monell claims, McCormick v. City 

of Chicago, 230 F.3d 319, 324 (7th Cir. 2000), reversed the lower 

court’s decision dismissing a complaint that contained “boilerplate 

allegations...entirely lacking in any factual support that a 

municipal policy does exist.” The Seventh Circuit noted that 

“plaintiffs need not allege all, or any of the facts logically 

entailed” by their claims, and held that conclusory allegations 

“buttressed by facts alleging wrongdoing by the City” sufficed to 

state a Monell claim. Id. at 325 (internal quotation marks and 

citations omitted). 

Here, plaintiff does more than simply parrot the elements 

Monell requires. He recounts a year-long struggle with 

“excruciating” leg pain and his fruitless efforts to receive a 

specialist appointment that Dr. Henze herself believed was 

appropriate based on her understanding of his apparently rare and 

undisputedly serious infarctus diagnosis. During this time, 

plaintiff repeatedly sought treatment and filed multiple grievances 

decrying Dr. Henze’s inattention. While it may be that UIC policies 

and Covid-19 conditions played some role in the delay in his 

treatment, the facts plaintiff alleges are sufficient to raise an 

inference that the failure to follow up on Dr. Henze’s specialist 

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referral after she acknowledged that his condition was both serious 

and outside her own expertise reflects a policy of inaction. 

III. 

For the foregoing reasons, the motion to dismiss brought by 

defendants Gomez and Jeffreys is granted. The motion to dismiss 

brought by defendant Henze is denied as to plaintiff’s individual 

claim for deliberate indifference. The motion to dismiss brought by 

Wexford is denied as to plaintiff’s Monell claim. Plaintiff may 

proceed on Count I as to Dr. Henze in her individual capacity and 

on Count II as to Wexford, and he may pursue his claim for injunctive 

relief. 

 

 ENTER ORDER:

 

__________________________ 

 Elaine E. Bucklo 

 United States District Judge 

Dated: November 3, 2021 

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