Wheeler v. Talbot et al
Filing
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OPINION Entered by Judge Michael P. McCuskey on 6/25/13. IT IS THEREFORE ORDERED THAT:(1) Counts 1, 4, 5 and 7 of Plaintiff's pro se Full Amended Complaint 28 are dismissed for failure to state a claim.(2) Count 2 of Plaintiffs Amended Compla int 28 is stayed until the conclusion of a class action claim regarding soy diets being handled by Senior United States District Judge Harold A. Baker. (3) Plaintiff may proceed on Count 3 against Defendant Dr. Paul Talbot and Count 6 against Defen dants Keith Anglin and Yolande Johnson. All other named Defendants are terminated as parties to this action. (4) This court exercises supplemental jurisdiction over Plaintiffs state law medical malpractice claim against Defendant Talbot. This cour t declines to exercise supplemental jurisdiction over all of Plaintiffs other state law claims. These claims are dismissed without prejudice and may be filed in state court. (5) A Scheduling Order shall be entered directing service on Defendants Tal bot, Anglin and Johnson and setting a Rule 16 conference date. (6) This case remains scheduled for a status conference on June 28, 2013, at 1:30 p.m. SEE WRITTEN OPINION. (copy mailed to Anthony Wheeler A81100, Danville Correctional Center, Inmate Mail/Parcels, 3820 E Main St, Danville, IL 61834) (SKD, ilcd)
E-FILED
Tuesday, 25 June, 2013 03:42:12 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
____________________________________________________________________________
ANTHONY WHEELER,
Plaintiff,
v.
DR. PAUL TALBOT, et al,
Defendants.
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Case No. 12-CV-2281
OPINION
This case is before the court following a merit review hearing held on March 27, 2013.
At the merit review, this court took Plaintiff’s pro se Full Amended Complaint (#28) under
advisement. This court now rules that Plaintiff may proceed only on Counts 3 and 6 of his
Amended Complaint. In addition, Count 2, which claims injuries based upon a soy diet, was
previously stayed pending the conclusion of a class action case regarding this issue. This
court concludes that Counts 1 and 5 must be dismissed for failing to state a claim. Plaintiff
also cannot proceed on Count 4, which was dismissed by this court in an earlier order. Count
7 is dismissed because this court previously denied Plaintiff leave to add Count 7 and it fails
to state a claim. This court further notes that it is only exercising supplemental jurisdiction
over Plaintiff’s attached state law complaint to the extent that it states a medical malpractice
claim against Defendant Dr. Paul Talbot. Following these actions, the only defendants
remaining are Talbot, Keith Anglin and Yolande Johnson. All of the other defendants are
terminated as parties in this action.
BACKGROUND
On October 23, 2012, Plaintiff filed a pro se Complaint (#1) against Defendants, Dr.
Paul Talbot, Keith Anglin, S.A. Godinez, Louis Shicker, Yolande Johnson, Kevin Gilson,
Susann Griswold-Bailey, Marcia Keys, Jaclyn O’Day, D. Laker, Sherry Benton and Jackie
Miller. In Count 1, Plaintiff alleged that double bunking and double celling at the Danville
Correctional Center amounted to cruel and unusual punishment. In Count 2, Plaintiff alleged
that the soy-based diet provided by the Danville Correctional Center resulted in a serious
medical condition and that he has been denied a non-soy diet. In Count 3, Plaintiff alleged
that Defendant Talbot has refused to provide medical treatment for two large, protruding
keloid scars on his chest and groin area. In Count 4, Plaintiff alleged that the Danville
Correctional Center was engaging in a longstanding, widespread and systematic practice of
illegal profiteering and price gouging. In Count 5, Plaintiff alleged that Defendants Shicker
and Talbot have been deliberately indifferent to his serious medical needs by refusing to
provide treatment for an H. pylori bacterial infection. In Count 6, Plaintiff alleged that he
was verbally assaulted for filing grievances and writing letters regarding his complaints.
Plaintiff attached various exhibits to his pro se Complaint including a “State Law
Complaint,” copies of responses to his grievances, medical records and newspaper articles.
This court notes that lab results Plaintiff provided show that he tested negative for H. pylori
on April 29, 2011.
On November 15, 2012, this court held a merit review hearing. After discussing the
case with Plaintiff, who appeared by video, this court stated that Plaintiff was allowed to
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proceed on Counts 1, 3, 5 and 6 of his Complaint. Plaintiff was not allowed to proceed on
Count 4, which did not state a cause of action. This court stated that Count 2 was stayed
until the conclusion of a class action claim regarding soy diets that was being handled by
Senior United States District Judge Harold A. Baker. This court further stated that Plaintiff
was allowed until December 31, 2012, to amend his complaint to include specific allegations
related to the Defendants named in the complaint.
On December 11, 2012, Plaintiff filed his Second Amended Complaint (#11) per order
of this court. Plaintiff stated that Defendants Laker, Godinez, Benton, Gilson, Miller and
O’Day systematically denied his grievances in violation of his constitutional rights. Plaintiff
also filed numerous pro se motions related to his case.
On January 25, 2013, this court entered an Opinion (#27) and ruled on Plaintiff’s pro
se motions. This court first denied Plaintiff’s request for leave to add Count 7 to his
Complaint alleging that Defendants Laker, Godinez, Benton, Gilson, Miller and O’Day were
liable for their failure to act in the face of known constitutional violations. This court
concluded that these allegations did not state a separate cause of action against Defendants.
This court also granted Plaintiff leave to amend his complaint to add a state law claim for
medical malpractice against Dr. Talbot. This court stated that it would exercise supplemental
jurisdiction over Plaintiff’s medical malpractice claims against Dr. Talbot but declined to
exercise supplemental jurisdiction over the State Law Complaint attached to Plaintiff’s
original pro se Complaint (#1). This court also denied Plaintiff’s motions seeking a
declaratory judgment and summary judgment. In addition, this court denied Plaintiff’s
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Motions for Appointment of an Expert Medical Witness and a Health Care Monitor and for
appointment of counsel. This court also took Plaintiff’s motions for injunctive relief under
advisement.
On January 28, 2013, this case was scheduled for a merit review hearing. However,
this court did not conduct a merit review. Instead, this court directed Plaintiff to consolidate
his claims in an amended complaint. This court stated that a merit review hearing would be
reset following the receipt of the amended complaint.
On January 31, 2013, Plaintiff filed his pro se Full Amended Complaint (#28). In
Count 1, Plaintiff alleged that double bunking and double celling amounts to cruel and
unusual punishment. In Count 2, Plaintiff alleged that his long-term consumption of a soy
diet has greatly contributed to a myriad of medical problems. In Count 3, Plaintiff alleged
that Defendant Talbot has refused to provide treatment for his two large protruding keloid
scars, causing him constant, chronic and excruciating pain. In Count 4, Plaintiff alleged that
the commissary at Danville is engaging in a systematic practice of illegal profiteering and
price gouging. In Count 5, Plaintiff alleged that he was denied treatment for a bacterial
infection known as H. pylori. In Count 6, Plaintiff alleged that Defendants Anglin and
Johnson retaliated against him for filing grievances and complaint letters by verbally
assaulting and threatening him.
In Count 7, Plaintiff alleged that Defendants Laker,
Godinez, Benton, Gilson, Miller and O’Day have violated his rights by denying his
grievances. Plaintiff also attached a pro se State Law Tort Complaint. In this Complaint,
Plaintiff alleged that Defendants Talbot and Shicker are liable for medical malpractice and
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that other Defendants are liable under state law for intentional infliction of mental and
emotional distress, for personal injury and for negligent supervision or training.
MERIT REVIEW
On March 27, 2013, a merit review hearing was held. This court again stated that
Plaintiff’s soy diet case was stayed. This court took the matter under advisement and now
rules as follows.
Count 1 of Plaintiff’s Amended Complaint (#28) is dismissed. The United States
Supreme Court has held that housing two inmates in a single cell did not constitute cruel and
unusual punishment prohibited by the Eighth Amendment. Rhodes v. Chapman, 452 U.S.
337, 347-52 (1981). Therefore, double bunking and double celling of inmates is not a per
se violation of the Constitution. See Wilson v. Dart, 2012 WL 2905767, at *2 (N.D. Ill.
2012), citing Rhodes, 452 U.S. at 352; see also Bell v. Wolfish, 441 U.S. 520, 542 (1979)
(there is not “some sort of ‘one man, one cell’ principle lurking in the Due Process Clause
of the Fifth Amendment”); Smith v. Fairman, 690 F.2d 122, 125-26 (7th Cir. 1982); Elliott
v. Baker, 2008 WL 4876871, at *3 (N.D. Ill. 2008). “Placing two or more inmates in a cell
together is common institutional practice.” Wilson, 2012 WL 2905767, at *2, citing Bell,
441 U.S. at 541-43. Therefore, general claims and legal conclusions regarding double celling
are not sufficient to state a claim. See Wilson, 2012 WL 2905767, at *2.
Count 2 of Plaintiff’s Amended Complaint (#28) remains stayed, for the reasons stated
previously on the record. This court will allow Plaintiff to proceed on Count 3 of his
Amended Complaint, his claim that Talbot was deliberately indifferent to his serious medical
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need for treatment of his keloid scars. This court notes that it is somewhat skeptical of this
claim. As this court noted in its previous Opinion (#27), an evidentiary hearing was held in
the Southern District of Illinois regarding a similar claim made by Plaintiff in an earlier case.
The district court in the Southern District stated that the evidence showed that Plaintiff “has
been receiving regular medical care since his transfer to Danville Correctional Center.”
Wheeler v. Wexford Health Sources, Inc., 2012 WL 4952258, at *2 (S.D. Ill. 2012). The
district court also found that Plaintiff has exaggerated his medical condition and “the
evidence shows that the situation is not constant, as suggested.”
Wheeler, 2012 WL
4952258, at *2. However, this court concludes that Plaintiff has, at this stage of the
proceedings, adequately alleged a claim against Defendant Talbot.
This court concludes that it properly dismissed Count 4 at a prior merit review. Count
5 is also dismissed. Plaintiff continues to allege that he has been denied treatment for an H.
pylori infection. As this court noted in its prior Opinion (#27), the document Plaintiff has
attached to his filings in support of this claim shows that he tested negative for H. pylori on
April 29, 2011. This court notes that Rule 10(c) of the Federal Rules of Civil Procedure
“provides that ‘written instruments’ attached to a pleading become part of that pleading for
all purposes.” Williamson v. Curran, 714 F.3d 432, 435-36 (7th Cir. 2013), citing Fed R. Civ.
P. 10(c). Therefore, this court may properly consider exhibits attached to a complaint in
determining whether a claim should be dismissed. See Williamson, 714 F.3d at 436.
Further, this court “is not bound to accept the pleader’s allegations as to the effect of the
exhibit, but can independently examine the document and form its own conclusions as to the
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proper construction and meaning to be given the material.” Burke v. 401 N. Wabash
Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013), quoting Rosenblum v. Travelbyus.com
Ltd., 229 F.3d 657, 661 (7th Cir. 2002). To the extent that an exhibit attached to or
referenced by the complaint contradicts the complaint’s allegations, the exhibit typically
controls. Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007). A
“plaintiff may plead himself out of court by attaching documents to the complaint that
indicate that he or she is not entitled to judgment.” Centers v. Centennial Mortg., Inc., 398
F.3d 930, 933 (7th Cir. 2005); Bambenek v. Wright, 2007 WL 2914215, at *4 (C.D. Ill.
2007). In this case, the document Plaintiff attached to his Amended Complaint conclusively
shows that he tested negative for H. pylori. Plaintiff has pleaded himself out of court by
filing a document which shows that he does not have an H. pylori infection. Obviously,
Plaintiff cannot succeed on a claim that he was denied treatment for a condition he does not
have.
This court concludes that Plaintiff can proceed on Count 6 of his Amended Complaint
which alleges that Defendants Anglin and Johnson retaliated against him for filing grievances
and writing complaint letters, in violation of his First Amendment rights.
This court next concludes that Count 7 must be dismissed. This court denied Plaintiff
leave to file Count 7, yet he included it in his pro se Full Amended Complaint (#28). In
addition to being filed in violation of this court’s ruling, it fails to state a claim. Plaintiff has
alleged that Defendants violated his constitutional rights by denying his grievances, giving
the same vague and “boilerplate” technical reasons for the denials. However, a plaintiff has
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no constitutional right to have his grievances resolved in his favor. Bakr v. Walker, 2011 WL
884134, at *4 (S.D. Ill. 2011), citing Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005); see
also Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009) (prisoner’s claim that his grievances
were rejected based on technicalities did not state a claim and was properly dismissed).
As far as Plaintiff’s attached State Law Tort Complaint, this court has already ruled
that it would exercise supplemental jurisdiction over Plaintiff’s medical malpractice claim
against Dr. Talbot but would not exercise supplemental jurisdiction over Plaintiff’s other
state law claims. These claims are dismissed without prejudice.
IT IS THEREFORE ORDERED THAT:
(1) Counts 1, 4, 5 and 7 of Plaintiff’s pro se Full Amended Complaint (#28) are
dismissed for failure to state a claim.
(2) Count 2 of Plaintiff’s Amended Complaint (#28) is stayed until the conclusion of
a class action claim regarding soy diets being handled by Senior United States District Judge
Harold A. Baker.
(3) Plaintiff may proceed on Count 3 against Defendant Dr. Paul Talbot and Count
6 against Defendants Keith Anglin and Yolande Johnson. All other named Defendants are
terminated as parties to this action.
(4) This court exercises supplemental jurisdiction over Plaintiff’s state law medical
malpractice claim against Defendant Talbot. This court declines to exercise supplemental
jurisdiction over all of Plaintiff’s other state law claims. These claims are dismissed without
prejudice and may be filed in state court.
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(5) A Scheduling Order shall be entered directing service on Defendants Talbot,
Anglin and Johnson and setting a Rule 16 conference date. A copy of this Opinion shall be
served with the Amended Complaint and Scheduling Order. Defendants shall file an answer
within the time prescribed by Local Rule and the answer should include all defenses
appropriate under the Federal Rules. The answer and subsequent pleadings shall be only to
the issues and claims this court has allowed to proceed in this Opinion.
(6) This case remains scheduled for a status conference on June 28, 2013, at 1:30 p.m.
ENTERED this 25th day of June, 2013
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
U.S. DISTRICT JUDGE
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