Knox v. Melven et al
MERIT REVIEW ORDER entered by Chief Judge James E. Shadid on 10/10/2017. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Dismiss Defendants Dr. Tilden and Assistant Warden Emily Ruskins for failure to state a claim upon which relief can be gr anted pursuant to by 28 U.S.C. §1915A; 2) deny Plaintiff's motion for counsel with leave to renew, 5 ; 3) attempt service on Defendant pursuant to the standard procedures; 4) set an internal court deadline 60 days from the entry of this or der for the Court to check on the status of service and enter scheduling deadlines and 5) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE FULL WRITTEN ORDER.(SAG, ilcd)
Tuesday, 10 October, 2017 03:02:26 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
STEPHEN L. KNOX,
WARDEN MELVIN, et al.,
MERIT REVIEW ORDER
This cause is before the Court for merit review of the Plaintiff’s complaint. The
Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s complaint, and through
such process to identify and dismiss any legally insufficient claim, or the entire action if
warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant
who is immune from such relief.” 28 U.S.C. §1915A.
Plaintiff, a pro se prisoner, claims Defendants Warden Melvin, Dr. Tilden and
Assistant Warden Emily Ruskins violated his constitutional rights and his rights
pursuant to the Americans with Disabilities Act (ADA) at Pontiac Correctional Center.
Plaintiff has lupus and a severe spinal injury which sometimes requires him to use a
wheelchair. Nonetheless, Plaintiff says the Defendants refuse to house him in a cell
with ADA accommodations for his condition. Plaintiff says he is not allowed a
wheelchair when needed and Dr. Tilden has instead approved crutches. However,
Plaintiff says this provides little help since he can’t bring the crutches in his cell and he
can’t use the crutches on the yard. Consequently, Plaintiff says he has trouble getting
around in his cell. He is unable to reach the light in his cell, he had trouble getting to
his sink and toilet, and he is “force(d) to crawl around.” (Comp., p. 5). In addition,
Plaintiff says he can not go out for yard time since he is not allowed either a wheelchair
Assistant Warden Ruskins is the ADA coordinator and Warden Melvin has the
final approval for such a request, but neither will approve his requests for an
accommodation. In addition, Dr. Tilden has refused to recommend an ADA cell.
Plaintiff says even though it is obvious to a lay person that he needs an accommodation
to move around his cell, none of the Defendants will take action.
Title II of the ADA provides that “no qualified individual with a disability shall,
because of that disability ... be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
12132. A disability is defined as “a physical or mental impairment that substantially
limits one or more major life activities of such individual.” See 42 USCA § 12102(1)(A).
Discrimination includes the failure to accommodate a disability. Wagoner v. Lemmon, 778
F.3d 586 (7th Cir. 2015). “In a prison setting, access to meals and certain housing
facilities, including showers, toilets and sinks, are among the programs and activities
protected by the ADA..” Peters v. United States, 2017 WL 2533652, at *4 (S.D.Ill. June 12,
However, Plaintiff cannot sue the individual Defendants because the Seventh
Circuit has held that individual Illinois Department of Corrections employees are not
amenable to suit under the ADA. Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 670
(7th Cir. 2012). The Plaintiff has named Warden Melvin as a Defendant, so he may
proceed against this Defendant in his official capacity only for his ADA claim. See
McCaskill v. Wexford Health Sources, Inc., 2017 WL 2306406, at *5 (S.D.Ill. May 26, 2017).
Plaintiff next alleges the Defendants violated his Eighth Amendment rights
because they “failed to recommend” a “cell with an ADA accommodation.” (Comp., p.
5). Plaintiff appears to be restating his ADA claim. If he did intend to state a separate
Eighth Amendment violation, it is unclear if the Plaintiff intended to state an Eighth
Amendment claim based on his living conditions, or he intended to state an Eighth
Amendment claim based on deliberate indifference to a serious medical condition. See
Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)(medical claim); see also Turner v. Miller,
301 F.3d 599, 603 (7th Cir. 2002)(living conditions). If Plaintiff believes he can state a
separate, Eighth Amendment violation, he must file a complete, proposed amended
amended complaint setting forth all claims and Defendants and without making
reference to any previous complaint.
Plaintiff also claims Dr. Tilden was “negligent.” (Comp., p. 5) “[A] defendant
can never be held liable under §1983 for negligence.” Williams v Shaw, 2010 WL 3835852
at 3 (S.D. Ill. Sept. 24, 2010). Second, if Plaintiff was attempting to claim the state law
tort of medical malpractice, his complaint is not sufficient. Illinois law requires any
Plaintiff who is seeking damages for medical malpractice to file an affidavit with the
complaint providing required information. See 735 Ill. Comp. Stat. § 5/2-622(a). Failure
to file the required affidavit is grounds for dismissal of the claim. See 735 Ill. Comp. Stat.
Plaintiff’s final claim alleges all of the Defendants violated his rights pursuant to
the Fourteenth Amendment’s equal protection clause because he is “not being given the
same treatment as other ADA inmates” (Comp., p. 5). “The Equal Protection Clause ...
prohibits state action that discriminates on the basis of membership in a protected class
or irrationally targets an individual for discriminatory treatment as a so-called ‘class of
one.’” Reget v. City of La Crosse, Wis., 595 F.3d 691, 695 (7th Cir. 2010) citing Engquist v.
Oregon Department of Agriculture., 553 U.S. 591 (2008); Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000).
While not clearly stated, Plaintiff’s appears to alleging “class of one”
discrimination because Plaintiff believes he was improperly singled out for
discriminatory treatment, and Plaintiff does not allege he was discriminated against
because he is a member of a protected classification such as race, sex or national origin.
See LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, 942 (7th Cir. 2010); see also
Johnson v. Daley, 339 F.3d 582, 585-586 (7th Cir. 2003)(“Prisoners are not a suspect class;
conviction of crime justifies the imposition of many burdens.”); Mlaska v. Schicker, Case
No. 15-cv-00918-MJR, 2015 WL 6098733, at *11 (S.D. Ill. Oct. 16, 2015) (finding that
group of inmates with a certain type of medical condition did not constitute a suspect
class); Green v. Maldonodo, 2017 WL 3568662, at *5 (D.Conn. Aug. 17, 2017)(“disabled,
however, are not a suspect or quasi-suspect class..”): Shariff v. Coombe, 655 F.Supp.2d
274, 302 (S.D.N.Y.,2009)(“disabled are not a suspect or quasi-suspect class…”).
Whatever the intended basis of Plaintiff’s equal protection allegation, he has
failed to adequately state a claim upon which relief could be granted. Plaintiff has
failed to point to anyone who was similarly situated and was treated differently, or
anyone suffering from the same conditions who was given an accommodation. See
Green v. Maldonodo, 2017 WL 3568662, at *5 (D.Conn. Aug. 17, 2017)(failure to state a
claim equal protection claim based on denial of ADA accommodation); Latson v. Clarke,
2017 WL 1407570, at *17 (W.D.Va., April 20, 2017)(failure to state equal protection claim
when complaint “does not identify any other inmates or allege any facts regarding the
privileges they were afforded or whether they were similarly situated..”); Brooks v.
Horn, 2004 WL 764385, at *7 (E.D.Pa.,April 7, 2004)(“ Because plaintiff has not produced
evidence to show that other disabled inmates' requests for ADA accommodations were
treated differently from his, his equal protection claim must fail.”).
Therefore, Plaintiff’s complaint alleges his rights pursuant to the ADA were
violated when he was denied an accommodation for his disability. The claim is stated
against Defendant Melvin in his official capacity. All other intended claims and
Defendants are dismissed.
Plaintiff has also filed a motion for appointment of counsel. . Plaintiff has no
constitutional right to the appointment of counsel. In addition, the Court cannot
require an attorney to accept pro bono appointment in a civil case. The most the Court
can do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071
(7th Cir. 1992). In considering Plaintiff’s motion, the Court must ask two questions: “(1)
has the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the difficulty of the case, does
the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th
Cir. 2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).
In the section asking what attempts Plaintiff has made to find counsel on his
own, he lists the names of two attorneys. The Court does not find this to be a
reasonable attempt to find counsel. Plaintiff may renew his motion and indicate when
he contacted counsel, how many attorneys he attempted to contact, and if possible,
include copies of letters sent or received in his efforts to find counsel. Plaintiff’s motion
is denied with leave to renew. 
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds Plaintiff has alleged Defendant Warden Melvin violated his rights
pursuant to the ADA when he was denied an accommodation to allow him to
walk and move in his cell and outside due to his lupus. The claim is stated
against the Defendant in his official capacity only. Any additional claims shall
not be included in the case, except at the Court’s discretion on motion by a party
for good cause shown or pursuant to Federal Rule of Civil Procedure 15.
2) This case is now in the process of service. Plaintiff is advised to wait until
counsel has appeared for Defendant before filing any motions, in order to give
Defendant notice and an opportunity to respond to those motions. Motions filed
before Defendant’s counsel has filed an appearance will generally be denied as
premature. Plaintiff need not submit any evidence to the Court at this time, unless
otherwise directed by the Court.
3) The Court will attempt service on Defendant by mailing Defendant a waiver of
service. Defendant has 60 days from service to file an Answer. If Defendant has
not filed an Answer or appeared through counsel within 90 days of the entry of
this order, Plaintiff may file a motion requesting the status of service. After
Defendant has been served, the Court will enter an order setting discovery and
dispositive motion deadlines.
4) With respect to a Defendant who no longer works at the address provided by
Plaintiff, the entity for whom that Defendant worked while at that address shall
provide to the Clerk said Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used only for
effectuating service. Documentation of forwarding addresses shall be retained
only by the Clerk and shall not be maintained in the public docket nor disclosed
by the Clerk.
5) Defendant shall file an answer within 60 days of the date the waiver is sent by
the Clerk. A motion to dismiss is not an answer. The answer should include all
defenses appropriate under the Federal Rules.
The answer and subsequent
pleadings shall be to the issues and claims stated in this Order. In general, an
answer sets forth Defendant’s positions. The Court does not rule on the merits of
those positions unless and until a motion is filed by Defendant. Therefore, no
response to the answer is necessary or will be considered.
6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of
his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will
file Plaintiff's document electronically and send a notice of electronic filing to
defense counsel. The notice of electronic filing shall constitute service on
Defendant pursuant to Local Rule 5.3. If electronic service on Defendant is not
available, Plaintiff will be notified and instructed accordingly.
7) Counsel for Defendant is hereby granted leave to depose Plaintiff at his place of
confinement. Counsel for Defendant shall arrange the time for the deposition.
8) Plaintiff shall immediately notify the Court, in writing, of any change in his
mailing address and telephone number. Plaintiff's failure to notify the Court of a
change in mailing address or phone number will result in dismissal of this lawsuit,
9) Within 10 days of receiving from Defendant’s counsel an authorization to
release medical records, Plaintiff is directed to sign and return the authorization
to Defendant’s Counsel.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendants Dr. Tilden and Assistant Warden Emily Ruskins for
failure to state a claim upon which relief can be granted pursuant to by 28
U.S.C. §1915A; 2) deny Plaintiff’s motion for counsel with leave to renew, ;
3) attempt service on Defendant pursuant to the standard procedures; 4) set an
internal court deadline 60 days from the entry of this order for the Court to
check on the status of service and enter scheduling deadlines and 5) enter the
Court's standard qualified protective order pursuant to the Health Insurance
Portability and Accountability Act.
Entered this 10th day of October, 2017.
s/ James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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