Andrews v. Rauner et al

Filing 28

OPINION: For the reasons stated in the Opinion, the Motion to Dismiss Counts II and III of Plaintiff's Complaint 15 filed by Defendants John R.Baldwin, Bruce Rauner, Illinois Department of Corrections, andState of Illinois is DENIED. These defendants shall file an amendedanswer on or before August 20, 2018. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 08/03/2018. (SKN, ilcd)

E-FILED

Monday, 06 August, 2018 11:28:34 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KELLI ANDREWS, as
Administrator of the Estate of
Tiffany Ann Rusher, deceased,

)
)
)
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Plaintiff,
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v.
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BRUCE RAUNER, THE STATE OF )
ILLINOIS, JOHN R. BALDWIN,
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JEFF SIM, HE YUAN, BRIAN
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RICHARDSON, THE ILLINOIS
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DEPARTMENT OF CORRECTIONS, )
and WEXFORD HEALTH
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SOURCES, INC.,
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Defendants.
)

No. 3:18-cv-1101

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motion to Dismiss
Counts II and III of Plaintiff’s Complaint (d/e 15) filed by
Defendants John R. Baldwin, Bruce Rauner, Illinois Department of
Corrections, and State of Illinois. Because Plaintiff has alleged
plausible claims under the Americans with Disabilities Act and the
Rehabilitation Act of 1973, the Motion to Dismiss is DENIED.

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I. JURISDICTION
This Court has subject matter jurisdiction because Plaintiff’s
causes of action are brought under the Eighth Amendment to the
United States Constitution pursuant to 42 U.S.C. § 1983; the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA);
and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. See 28
U.S.C. ' 1331 (AThe district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of
the United States@). Venue is proper because a substantial part of
the events or omissions giving rise to Plaintiff=s claims occurred in
this district. 28 U.S.C. ' 1391(b)(2).
II. LEGAL STANDARD
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458
(7th Cir. 2007). To state a claim for relief, a plaintiff need only
provide a short and plain statement of the claim showing she is
entitled to relief and giving the defendants fair notice of the claims.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
When considering a motion to dismiss under Rule 12(b)(6), the
Court construes the complaint in the light most favorable to the
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plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in her favor. Id. However, the
complaint must set forth facts that plausibly demonstrate a claim
for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).
A plausible claim is one that alleges factual content from which the
Court can reasonably infer that the defendants are liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Merely reciting the elements of a cause of action or supporting
claims with conclusory statements is insufficient to state a cause of
action. Id.
III FACTS ALLEGED IN THE COMPLAINT
The complaint contains the following allegations, which the
Court accepts as true for purposes of the motion to dismiss.
Tamayo, 526 F.3d at 1081.
Plaintiff, Kelli Andrews, is the administrator of the estate of
her daughter, Tiffany Rusher. Rusher was confined at the Logan
Correctional Center from March 2013 until May 2016.
The defendants are Bruce Rauner, the Governor of Illinois;
John R. Baldwin, the acting director of the Illinois Department of
Corrections (IDOC); Jeff Sim, the Central Regional Psychologist
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Supervisor of IDOC; the State of Illinois; Wexford Health Services,
Inc.; Dr. He Yuan, the Chief Psychiatrist at Logan Correctional
Center; and Brian Richardson, a mental health professional at the
Logan Correctional Center.
Sometime in 2013, Rusher was placed in solitary confinement
as the result of a disciplinary infraction. Rusher’s mental health
deteriorated. Plaintiff alleges, on information and belief, that Rusher
had not previously been diagnosed with a mental illness.
Between October 2013 and May 2015, Rusher made several
attempts to hurt herself, including attempts to strangle herself and
swallowing items like batteries and pens. During this time, Rusher
cycled between the prison’s general population and stints in solitary
confinement as punishment for the acts of self-harm.
In May 2014, prison staff diagnosed Rusher with a bipolar-I’ve
type shizoaffective disorder, a borderline personality disorder, and
post-traumatic stress disorder. Prison staff determined that Rusher
was at a continued risk of harming herself. The medical
professionals noted the importance of “out of cell time” to engage in
activities like socializing and writing. Rusher was provided with
therapy and group activities to address her mental illness.
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However, Rusher was placed in solitary confinement when she tried
to hurt herself. Her placement in solitary confinement undermined
the limited mental health care she had been receiving.
In September 2015, after another suicide attempt, Logan
medical staff ordered Rusher be placed on “constant watch” in a
“crisis cell” within the Logan’s Medical Housing Unit. Rusher was
stripped naked and only permitted an anti-suicide smock. All of
her personal property was taken away. A guard was stationed
outside Rusher’s cell 24 hours a day.
Plaintiff alleges that, while short periods of constant watch are
medically acceptable, extended constant watch is strictly forbidden.
Plaintiff alleges that, instead of trying to secure Rusher effective
mental health treatment—such as transferring Rusher to the
custody of the Illinois Department of Human Services or
transferring Rusher out of Logan for inpatient mental health
treatment—defendants chose to keep Rusher in isolation. Plaintiff
alleges that prisoners suffering from physical illness are transferred
outside of IDOC for medical care.
Shortly after placing Rusher in a crisis cell, Logan medical
staff identified Rusher as one of only a few dozen patients within
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IDOC whose mental condition was so acute and dangerous that she
required full inpatient level mental health care. Instead of securing
effective mental health care for Rusher, defendants kept her in
isolation. A staff member went to Rusher’s cell once a day and
asked her rote questions through the cell door. Rusher was also
interviewed once a week for 30 minutes by a psychiatrist for
purposes of adjusting the levels of her various medications.
Eventually, in response to pressure from the Rasho v. Baldwin, 07cv-1298 (C.D. Ill.)(Mihm, J.) class action lawsuit, Rusher would
occasionally be allowed to leave the crisis cell for 30-minute group
therapy sessions, which occurred no more than once per week.
Prison staff treated the therapy sessions as a privilege, rather than
health care, and would cancel the sessions as punishment if
Rusher tried to harm herself. Rusher made repeated attempts to
harm herself.
Plaintiff alleges that the defendants knew that allowing Rusher
to be placed in solitary in a crisis cell for a meaningful length of
time would be toxic to her mental health. Plaintiff further alleges
that defendants had the ability to secure appropriate treatment for
Rusher but failed to do so.
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In May 2016, Rusher’s term of incarceration ended. The
defendants, knowing the damage they inflicted on Rusher, took
steps to have Rusher involuntarily committed to a state psychiatrist
hospital. Rusher did not oppose the petition and her admission
became “voluntary” under state law. Rusher was transferred from
the Logan crisis cell to the McFarland mental health hospital
operated by the Illinois Department of Human Services.
At McFarland, Rusher was placed in a group setting and
received intensive psychological and psychiatric care. As a result,
her mental health condition improved.1
In Count I, not at issue in the Motion to Dismiss, Plaintiff
alleges that defendants Rauner, Baldwin, Sim, Yuan, Richardson,
and Wexford were deliberately indifferent to Rusher’s medical
needs. In Counts II and III, Plaintiff alleges that Rauner and
Baldwin, in their official capacities, IDOC, and the State of Illinois

Although not alleged in this Complaint, the Court takes judicial notice of the
complaint filed by Plaintiff in Andrews v. Sangamon County, Central District of
Illinois, Springfield Division, Case No. 18-1100, relating to Rusher’s detention
at the Sangamon County Jail. See Olson v. Champaign Cnty., Ill., 784 F.3d
1093, 1096 n.1 (7th Cir. 2015) (a court may take judicial notice of documents
in the public record when ruling on a motion to dismiss under Rule 12(b)(6)).
That complaint alleges that Rusher was accused of battery while a patient at
McFarland, arrested, and taken to the Sangamon County Jail. While there,
Rusher committed suicide and died on March 30, 2017.
1

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(the State Defendants) violated the ADA and the Rehabilitation Act
by failing to accommodate Rusher’s disability.
For the ADA and Rehabilitation Act claims, Plaintiff alleges
that the State Defendants failed to provide a reasonable
accommodation for Rusher’s mental illness and discriminated
against her for her mental illness. Specifically, Plaintiff alleges that
Rusher suffered from a mental impairment that substantially
limited one or more major life activities, including, but not limited
to thinking, interacting with others, and controlling her behavior.
As a result of Rusher’s mental disabilities, she required inpatient
psychiatric therapy.
Plaintiff alleges that the State Defendants failed to reasonably
accommodate Rusher’s disability by failing to provide her access to
inpatient intensive psychiatric treatment. Due to this failure, the
State Defendants deprived Rusher of access to services, programs,
and activities, including education, programming, recreation,
exercise, human interaction, and mental health treatment and
services. In addition, the State Defendants allow prisoners with
physical injuries or illness to receive outside hospitalization but
failed to do so for Rusher because of her mental disability. As a
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result of the State Defendants’ failures, Rusher suffered extreme
mental pain and anguish and physical harm.
Plaintiff seeks compensatory, punitive, and nominal damages.
She also seeks costs and attorney’s fees.
IV. ANALYSIS
The State Defendants move to dismiss Counts II and III on two
grounds. The State Defendants assert that: (1) allegations of
inadequate treatment for mental health conditions do not give rise
to a viable claim under the ADA or the Rehabilitation Act; and (2)
“access to human contact” is not a program or service under the
ADA or Rehabilitation Act. The State Defendants also move to
dismiss Plaintiff’s request for punitive damages under the ADA and
Rehabilitation Act.
Title II of the ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the services, programs, or activities of
a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. Title II of the ADA applies to state
prisons. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).

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The Rehabilitation Act similarly provides that “[n]o otherwise
qualified individual with a disability . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance . . . . “ 29
U.S.C. § 794(a). The State Defendants do not dispute that state
prisons receive federal funds. Mem. at 4-5 (d/e 16).
Other than some minor differences not relevant here, the ADA
and the Rehabilitation Act are coextensive. CTL ex rel. Trebatoski
v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014); see also
Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840,
846 n.6 (7th Cir. 1999) (noting that the chief differences between
the ADA and the Rehabilitation Act are that the Rehabilitation Act
only applies to entities that receive federal funding and requires
that the exclusion be solely by reason of disability). Moreover,
“precedent under one statute typically applies to the other.”
Washington, 181 F.3d at 846 n.6.
The parties treat the ADA and the Rehabilitation Act claims
together. To state a claim under the ADA and the Rehabilitation
Act, Plaintiff must allege that (1) Rusher is a qualified person with a
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disability, (2) the State Defendants excluded Rusher from
participating in or denied her the benefits of a public entity’s
services, programs, or activities or otherwise discriminated against
her; and (3) the exclusion, denial, or discrimination was by reason
of or because of her disability. See Wagoner v. Lemmon, 778 F.3d
586, 592 (7th Cir. 2015) (identifying separately the elements for a
Title II and Rehabilitation Act claim but describing the elements as
“functionally identical”); Jaros v. Ill. Dep’t of Corr., 684 F.3d 667,
672 (7th Cir. 2012).2 A refusal to reasonably accommodate a
disability is “tantamount to denying access.” Jaros, 694 F.3d at 671
(also noting that the Supreme Court has found a duty to
accommodate in the Rehabilitation Act).

In Jaros, the Seventh Circuit “dispense[d] with the ADA and the thorny
question of sovereign immunity” and just considered the claim under the
Rehabilitation Act because the plaintiff could only have one recovery. Jaros,
684 F.3d at 672. The “thorny question of sovereign immunity” alludes to fact
that Title II of the ADA abrogates state sovereign immunity only for conduct
that actually violates the Constitution. United States v. Georgia, 546 U.S. 151,
159 (2006); see, e.g., Cunningham v. Falmier, No. 17-cv-126-SMY, 2017 WL
1212067, at *4 (S.D. Ill. Apr. 3, 2017) (because the denial of telephone
privileges did not independently violate the Constitution, the plaintiff could not
pursue a claim for damages against the state under the ADA). Sovereign
immunity does not bar a Rehabilitation Act claim because Illinois waived its
immunity from suits for damages under the Rehabilitation Act as a condition of
receiving federal funds. Jaros, 684 F.3d at 672 n.5.
2

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The State Defendants first argue that Plaintiff cannot bring a
claim for inadequate mental health treatment under the ADA and
the Rehabilitation Act. The State Defendants assert that, because
Plaintiff alleged that Rusher received group therapy, met with
psychiatrists on a weekly basis, and received medication, Plaintiff’s
claim is nothing more than a disagreement with Rusher’s course of
mental health treatment.
The cases cited by the State Defendants involved complaints
that only alleged inadequate medical treatment and did not allege
discrimination or a failure to make a reasonable accommodation.
For example, in Bryant v. Madigan, the Seventh Circuit held that
that ADA is not violated by a prison failing to attend to the needs of
its disabled prisoners. Bryant, 84 F.3d 246, 249 (7th Cir. 1996)
(“The ADA does not create a remedy for medical malpractice.”). The
Seventh Circuit noted that the plaintiff did not allege that he was
excluded from some service, program, or activity but only
complained about incompetent treatment for his paraplegia. Id.
Similarly, in In re Estate of Crandall v. Godinez, No. 14-cv1401, 2015 WL 1539017 (C.D. Ill. Mar. 31, 2015), the court held
that the plaintiff had not pleaded an ADA claim because he only
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challenged the adequacy of the medical services the decedent
received. The plaintiff did not allege that the decedent was subject
to discrimination or failed to receive services that other inmates
received. Id. at *6. The court drew a distinction between a claim
that a prisoner was not properly treated for his mental illness—
which did not state a claim under the ADA—and a claim that the
prisoner was denied access to medical services—which would state
a claim. In addition, the court found that the plaintiff had not
alleged that the decedent was placed in segregation because of his
disability or for reasons related to his disability and instead alleged
that the defendant had a legitimate, not-discriminatory reason for
the placement. Id. at 7 (noting the complaint alleged the decedent
was placed in segregation because of an investigation regarding
theft of another prisoner’s funds). Id.; see also Corbin v. Indiana,
No. 3:16CV602-PPS/MGG, 2018 WL 1920711, at *4 (N.D. Ind. Apr.
23, 2018) (finding the plaintiff stated a claim where he alleged he
was placed in segregated housing because of his disability, that he
was denied a service covered by the ADA and Rehabilitation Act due
to that segregation, and that the States’ conduct was intentional,
willful, and wanton).
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In this case, Plaintiff alleges that the State Defendants
discriminated against Rusher by denying her access to
hospitalization outside of the prison but allowed prisoners with
physical injuries or illnesses to receive outside hospitalization.
Compl. ¶¶ 25(c), 52, 53, 61. Plaintiff also alleges that the State
Defendants placed her in solitary confinement because of her
mental disability, which removed her from access to services,
programs, and activities. Id. ¶¶ 54, 55, 64. This is sufficient to
state a claim under the ADA and the Rehabilitation Act.
The State Defendants also move to dismiss Counts II and III
on the ground that “access to human interaction” is not a service,
program, or activity under the ADA or Rehabilitation Act. The
Court will not dismiss Counts II and III on this ground. Plaintiff
alleges that Rusher was denied a long list of activities, programs,
and services, including education, programming, recreation,
exercise, and mental health treatment and services. Therefore,
Counts II and III state a claim even if access to human interaction
is not an activity, program, or service—an issue the Court need not
decide at this time.

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Finally, the State Defendants assert that Plaintiff is not
entitled to punitive damages under the ADA or the Rehabilitation
Act. Plaintiff asserts that she does not seek punitive damages
under the ADA and Rehabilitation Act and, therefore, this portion of
the State Defendants’ motion is moot. In light of Plaintiff’s
clarification that she does not seek punitive damages under the
ADA and the Rehabilitation Act, the Court denies this portion of the
motion as moot.
V. CONCLUSION
For the reasons stated, the Motion to Dismiss Counts II and III
of Plaintiff’s Complaint (d/e 15) filed by Defendants John R.
Baldwin, Bruce Rauner, Illinois Department of Corrections, and
State of Illinois is DENIED. These defendants shall file an amended
answer on or before August 20, 2018.
ENTERED: August 3, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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