Willis v. State of Illinois et al
Filing
128
OPINION BY SUE E. MYERSCOUGH, U.S. District Judge: Plaintiff's motion for the appointment of counsel is denied ( 123 ). The motion to strike Plaintiff's sur-reply is denied as unnecessary ( 124 ). Plaintiff's pleading does not present new arguments or facts. The motions for summary judgment are granted in part and denied in part ( 65 , 76 ). By March 13, 2017, Plaintiff is directed to file an affidavit stating, under penalty of perjury, the restrictions placed on him on his 30 days of close status imposed on December 17, 2014. In particular, Plaintiff must state whether he was allowed out of his room daily and for how long, whether he was provided an opportunity for visits and to make outgoing phone calls, and whether he was provided access to the commissary, a three-day change of clothing, and showers. The clerk is directed to notify the Magistrate Judge of the referral of this case for a settlement conference. The clerk is directed to terminate Defendant Bednarz. SEE WRITTEN OPINION. Entered on 2/22/2017. (MJC, ilcd)
E-FILED
Wednesday, 22 February, 2017 11:48:56 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MACEO WILLIS, JR.,
)
)
Plaintiff,
)
)
v.
)
)
GREG SCOTT, DALE KUNKEL, )
MEDICAL DIRECTOR
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BEDNARZ, RESIDENT
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WILLIAMSON, SHARLENE
)
CARAWAY, JOSEPH HANKINS, )
AND J.R. REID,
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)
Defendants.
)
15-CV-3037
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. He pursues claims arising from an alleged
assault against him by his roommate, the punishment he received
for fighting, and an alleged delay in medical care for the injuries he
suffered.
Defendants have filed motions for summary judgment. For the
reasons below, Plaintiff’s failure to protect claim survives summary
judgment against Defendants Hankins, Kunkel, Caraway, and
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Scott. Summary judgment on Plaintiff’s procedural due process
claim against Defendants Caraway, Reid, and Hankins is denied
with leave to renew. Summary judgment on Plaintiff’s claim for
delay of medical care is granted.
Facts
On December 4, 2014, Plaintiff was transferred from the
Illinois Department of Corrections to the Rushville Treatment and
Detention Center. After the initial intake procedures, Plaintiff was
placed in a room with resident Antonio Williamson on December 10,
2014. According to Plaintiff, resident Williamson was not happy
about moving to the top bunk and behaved strangely from the start,
spying on Plaintiff during the night, but Plaintiff did not alert
Defendants or any other employees to Plaintiff’s concerns. (Pl.’s
Dep. 13-15.)
In the early morning hours of December 16, 2014, while
Plaintiff and resident Williams were locked in their room, resident
Williamson hopped down from his bunk and put his shoes on,
ready to fight. Plaintiff then put his pants on, whereupon
Williamson said, “I’m gonna fight you” and “bum-rushed Plaintiff
football style.” (Pl.’s Dep. 20.) Plaintiff fell back on the bed with
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Williamson on top while Williamson punched Plaintiff. (Pl.’s Dep.
62.) In self-defense, Plaintiff pressed a pen in Williamson’s side.
(Pl.’s Dep. 63-64.) Plaintiff called to a guard for help, and both
Plaintiff and Williamson were taken to the healthcare unit. (Pl.’s
Dep. 67.)
The parties dispute what precipitated the fight and whether
Plaintiff stabbed Williamson in the eye with a pen or just pressed
the pen in Williamson’s side, but factual disputes are resolved in
Plaintiff’s favor at this stage. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Medical records show that Plaintiff was seen at the healthcare
unit on December 16, 2014, at 3:15 a.m. The records state that
Plaintiff had a 2.5 centimeter laceration on Plaintiff’s right cheek
and Plaintiff maintains he had a cut on his eyelid, bruises, and
pain. Dr. Lochard, the facility’s treating doctor, was notified, and
Plaintiff was given Tylenol as needed. Gauze pads were applied to
Plaintiff’s wound every two hours. (Pl.’s 12/16/16 progress note,
65-2, p. 1; Pl.’s Dep. 25-26, 71-72.) At around 9:00 a.m. that
morning, Dr. Lochard sutured Plaintiff’s wound with four stitches.
(Pl.’s Dep. 26, 71-71; Pl.’s 12/16/14 progress note, d/e 65-2, p. 2.)
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After Dr. Lochard treated Plaintiff, Plaintiff was placed on
“temporary special” status, which is akin to segregation. Plaintiff
was given a notice to appear before the behavior committee, the
disciplinary committee for the facility. The notice charged Plaintiff
with fighting, but Plaintiff could not read the notice because
Plaintiff did not have his eyeglasses. On December 17, 2014,
Plaintiff appeared before the behavior committee and was read the
notice. Plaintiff offered a written affidavit in his defense, but
Defendants found Plaintiff guilty of fighting. The punishment was
30 days of “close status” and 90 days recommended for using the
“black box” restraint during transports. The black box is a restraint
attached between handcuffs which further restricts hand
movement.
Discussion
I. Appointment of Counsel
Plaintiff’s prior motions for appointed counsel were denied by
Magistrate Judge Shanzle-Haskins on the grounds that Plaintiff
appears competent to proceed pro se in light of the relatively simple
nature of Plaintiff’s claims. (6/26/15 text order, citing Pruitt v.
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Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This Court agrees.
The Court does not have the authority to require an attorney to
accept pro bono appointment on a civil case such as this. Pruitt,
503 F.3d at 653. In determining whether the Court should attempt
to find an attorney to voluntarily take the case without pay, the
question is “given the difficulty of the case, does the plaintiff appear
competent to litigate it himself?" Id. at 654-55 (7th Cir. 2007).
Plaintiff's pleadings adequately communicate the facts underlying
his claim and demonstrate some knowledge of the applicable law
and procedure. Plaintiff already has personal knowledge of many of
the relevant facts and has been able to obtain relevant information
in discovery. Additionally, Plaintiff has his high school degree and
certificates in automotive servicing, industrial electronics, computer
science, and advanced electronic technology. (Pl.’s Dep. 8.) Plaintiff
also has significant experience litigating in federal court, according
to a search of computerized records. On this record, Plaintiff
appears competent to proceed pro se.
II. Failure to Protect Claim
To succeed on his claim for failure to protect, Plaintiff must
have evidence that resident Williamson posed a substantial risk of
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serious harm to Plaintiff and that Defendants knew about and
disregarded that risk. Brown v. Budz, 398 F.3d 904, 913 (7th Cir.
2005).
Defendants do not argue that resident Williams did not pose a
substantial risk of harm to Plaintiff. A rational juror could conclude
that resident Williams did pose such a risk. The documents filed
under seal show that Williamson had a long history of disciplinary
problems, roommate problems, problems getting along with others,
and problems with intimidation and aggression. (Sealed
documents, d/e 82.) Plaintiff, by his own description, is an elderly
man with diabetes and high blood pressure, vision impairment, and
no record of disciplinary problems. (Pl.’s Dep. p. 12.)
Defendants argue that they played no role in rooming Plaintiff
with resident Williams. However, Defendant Hankins admits that
he was one of the rooming committee members who determined
Plaintiff’s room placement. (Defs.’ Resp. to Pl.’s First Interr., d/e
77-1, para. 1.) Defendants Caraway, Scott, and Kunkel were copied
on the rooming committee minutes, though they were not members
on the rooming committee. Simply receiving a copy of the minutes
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would not be enough to allow an inference of personal
responsibility, but the Court does not see the minutes from the
December 3, 2014, rooming committee meeting in the record. The
minutes skip from November 19, 2014 to December 17, 2014. Nor
are there any documents or affidavits explaining the reasons for
Plaintiff’s placement with resident Williamson or when that decision
was made. If the decision was not made at a rooming committee
meeting, then when was the decision made, who made the decision,
and why? Additionally, Plaintiff contends that he has not been
provided the facility’s procedures regarding rooming placements,
which he believes will allow an inference of personal responsibility.
In short, Defendants Hankins, Scott, Kunkel and Caraway
have not met their summary judgment burden on the failure to
protect claim. Defendant Hankins was admittedly involved in the
rooming decision. The record is not developed enough to rule out
the involvement of Defendants Scott, Kunkel, or Caraway. A
determination of qualified immunity also cannot be made without a
more developed record.
The other Defendants—Reid and Bednarz—had no
involvement in the rooming decision. Defendant Reid was on the
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behavior committee and is the Director of Training and Research.
Defendant Bednarz is the Medical Director. Summary judgment
will, therefore, be granted to Defendants Reid and Bednarz on
Plaintiff’s failure to protect claim.
III. Procedural Due Process Claim
Summary judgment appears to be warranted for Defendants
on Plaintiff’s procedural due process claim, but the Court needs
more information.
Plaintiff was punished for fighting as a result of the incident.
The punishment was 30 days of close status and the application of
the black box on transports for 90 days. After 30 days on close
status, Plaintiff was to be returned to general status with all of its
privileges.
The question is what did close status mean at the time? The
Seventh Circuit has already held that close status at the Rushville
Treatment and Detention Center is not a significant enough
deprivation to trigger procedural due process concerns. Miller v.
Dobier, 634 F.3d 412 (7th Cir. 2011). In Miller, the plaintiff on close
status was “free to leave his cell for most of the day, to receive
visitors, and in this and other respects to avoid extremes of close
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confinement such as are encountered in segregation units.” Id.
Miller also held there is no constitutionally protected liberty interest
in avoiding the "black box" restraints or other restraints during
transport, even for civil detainees. Id. at 414-15.
According to Defendant Hankins, residents on close status
during the relevant time were generally permitted access to the day
room one hour during the breakfast meal, after the “noon count”
until 2:45 p.m., and one hour during the evening meal. Residents
on close status were also allowed to buy from the commissary, have
one-hour visits, have a three-day change of clothing, and make outgoing phone calls. (Hankins Aff. paras. 17-19.) However,
Defendant Hankins does not know if Plaintiff was permitted these
privileges, and these assertions are not part of Defendants’
proposed undisputed facts. (Hankins Aff. paras. 19.)
Plaintiff asserts in his affidavit that he was kept in the
equivalent of segregation with no power, no electronics, and no
property for one year. (Pl.’s Aff., footnote 1, d/e 121, p. 5.)
However, that was not the punishment imposed in December 2014
and that claim is not before the Court. The punishment relevant to
this case is the punishment imposed in December 2014—30 days
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close status and 90 days black box transport. If Plaintiff received
additional punishment for other rule infractions, those incidents
are not a part of this case. For example, Defendant Hankins avers
that Plaintiff was given another 30 days close status for refusing to
house with a roommate. (Hankins Aff. para. 19.) Plaintiff has filed
motions seeking a court order that he be placed in a single room,
which have been denied because Plaintiff has no constitutional
right to a single room. (6/26/15 text order; 7/8/2015 text order).
This case is not about Plaintiff’s housing refusals.
On this record, Plaintiff’s procedural due process claim
appears foreclosed by Miller. However, the Court needs to know
specifically what restrictions were placed on Plaintiff during his 30
days of close status in order to determine whether the punishment
was significant enough to trigger procedural due process
protections. Defendants do not appear to know what restrictions
were placed on Plaintiff. Plaintiff should be able to inform the Court
what those restrictions were since he personally experienced them.
Accordingly, Defendants motion for summary judgment on the
procedural due process claim is denied with leave to renew.
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Plaintiff will be directed to submit an affidavit setting forth what
restrictions he experienced on close status.
III. Lack of Medical Care Claim
Plaintiff argues that he should have been taken to the
emergency room rather than made to wait six hours for four
stitches. However, Plaintiff has no evidence that this decision was a
substantial departure from accepted professional judgment or that
Plaintiff was at any risk of harm from waiting. Sain v. Wood, 512
F.3d 886, 894-95 (7th Cir. 2009)(“A medical professional is entitled
to deference in treatment decisions unless no minimally competent
professional would have so responded under those circumstances.”)
In any event, Dr. Lochard, who is not a Defendant, would have been
the person making that decision. Dr. Lochard was the person
contacted when Plaintiff was brought to the health care unit. No
evidence suggests that Dr. Bednarz, who was the facility’s Medical
Director, was involved in or responsible for that decision. No
evidence suggests that any of the other Defendants were
responsible for that decision either. Summary judgment is granted
to Defendants on this claim.
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IT IS ORDERED:
(1) Plaintiff’s motion for the appointment of counsel is denied
(123).
(2) The motion to strike Plaintiff’s sur-reply is denied as
unnecessary (124). Plaintiff’s pleading does not present new
arguments or facts.
(3) The motions for summary judgment are granted in part
and denied in part (65, 76). Summary judgment is granted to all
Defendants on Plaintiff’s claim for deliberate indifference to his
injuries after the alleged assault by resident Williams. Summary
judgment is granted to Defendants Reid and Bednarz on Plaintiff’s
failure to protect claim. Summary judgment is otherwise denied.
(4) By March 13, 2017, Plaintiff is directed to file an
affidavit stating, under penalty of perjury, the restrictions
placed on him on his 30 days of close status imposed on
December 17, 2014. In particular, Plaintiff must state whether
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he was allowed out of his room daily and for how long, whether
he was provided an opportunity for visits and to make outgoing
phone calls, and whether he was provided access to the
commissary, a three-day change of clothing, and showers.
(5) This case is referred to the Magistrate Judge for the
purpose of conducting a settlement conference.
(6) The clerk is directed to notify the Magistrate Judge of the
referral of this case for a settlement conference.
(7) The clerk is directed to terminate Defendant Bednarz.
ENTERED: February 22, 2017
s/Sue E. Myerscough
SUE E. MYERSCOUGH
U.S. DISTRICT JUDGE
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