Fulgham v. Ashcraft et al

Filing 7

ORDER MERIT REVIEW OPINION: Case proceeds. The clerk is to add the Illinois Department of Corrections and Western Illinois Correctional Center as Defendants and to terminate Defendants Governor Bruce Rauner and IDOC Director John Baldwin. The clerk is to enter the standard order granting Plaintiff's in forma pauperis petition and assess an initial partial filing fee, if not already done and attempt service on Defendants. The clerk is to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. SEE WRITTEN OPINION. Rule 16 Deadline set for 7/31/2017. Entered by Judge Sue E. Myerscough on 05/30/2017. (SKN, ilcd)

E-FILED

Tuesday, 30 May, 2017 09:27:15 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MAMBU FULGHAM,
Plaintiff,
v.
KATHY ASHCRAFT, et al.
Defendants.

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17-CV-3124

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Western
Illinois Correctional Center. His Complaint is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. This section requires
the Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally
construing them in Plaintiff's favor and taking Plaintiff’s pro se
status into account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
2013). However, conclusory statements and labels are insufficient.

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.”  28 
U.S.C. § 1915(g). 

Page 1 of 8 

Enough facts must be provided to "'state a claim for relief that is
plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
Plaintiff alleges that he has glaucoma and is legally blind.
Defendants allegedly have refused his requests for accommodations
under the Americans with Disabilities Act, including assistance
with writing grievances and correspondence, reading
correspondence, slow walk and eating passes, and a legally blind
permit. Plaintiff also alleges that at times he has not received his
eye medication, causing the pressure in his eyes to build up and
“leaving Plaintiff in pain for days on end.” In addition to damages,
he asks to be sent to Lincoln Correctional Center where he appears
to believe he will receive the necessary accommodations for his eye
condition.
Plaintiff states a claim under the American with Disabilities
Act and a claim under the Eighth Amendment for deliberate
indifference to his serious medical needs. The claim under the
American Disabilities Act (ADA) is construed also as a claim under
the Rehabilitation Act (RA). The ADA/RA claim may not proceed
against individual employees, Jaros v. Illinois Dept. of Corrections,
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684 F.3d 667, 670 (7th Cir. 2012), so the Illinois Department of
Corrections and Western Illinois Correctional Center will be added
as Defendants on this claim. Wexford Health Sources, Inc., will
remain as a Defendant on the ADA/RA claim at this point, though
the claim may ultimately not be legally viable.
Plaintiff names Governor Bruce Rauner and IDOC Director
James Baldwin as Defendants, but no plausible inference arises
from the current allegations that they were personally responsible
for the alleged deliberate indifference to Plaintiff’s eye condition.
Their alleged failure to take action after receiving Plaintiff’s letters is
not enough to confer personal responsibility. Soderbeck v. Burnett
County, 752 F.2d 285, 293 (7th Cir. 1985)(“Failure to take
corrective action cannot in and of itself violate section 1983.
Otherwise the action of an inferior officer would automatically be
attributed up the line to his highest superior . . . .”).
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states claims under
the Americans with Disabilities Act and the Rehabilitation Act
(ADA/RA) and an Eighth Amendment claim for deliberate
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indifference to his serious medical needs regarding his eyes. The
ADA/RA claim proceeds against Western Illinois Correctional
Center, the Illinois Department of Corrections, and Wexford Health
Sources, Inc. The Eighth Amendment claim proceeds against
Defendants Kathy Ashcraft, Warden Watson, Wexford Health
Sources, Inc., and Chrissy Smith. This case proceeds solely on the
claims identified in this paragraph. 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)

The Illinois Department of Corrections and Western

Illinois Correctional Center are added as Defendants.
3)

Defendants Governor Bruce Rauner and IDOC Director

John Baldwin are dismissed without prejudice.
4)

This case is now in the process of service. Plaintiff is

advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be

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denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
5)

The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
6)

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.
7)

Defendants 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
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the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
8)

This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
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9)

Counsel for Defendants is hereby granted leave to depose

Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
10)

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, with
prejudice.
11)

If a Defendants fails to sign and return a waiver of service

to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
12)

Within 10 days of receiving from Defendants' counsel an

authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
13) The clerk is directed to add the Illinois Department
of Corrections and Western Illinois Correctional Center as
Defendants.
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14) The clerk is directed to terminate Defendants
Governor Bruce Rauner and IDOC Director John Baldwin.
15)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
16)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: May 30, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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