Bilik v. Illinois Department of Corrections et al
Filing
173
MEMORANDUM OPINION signed by the Honorable Andrea R. Wood on 8/24/2018. Mailed notice(ef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD BILIK,
Plaintiff,
v.
MARCUS HARDY, et al.,
Defendants.
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)
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)
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No. 12-cv-04532
Judge Andrea R. Wood
MEMORANDUM OPINION
This case concerns allegations that the numerous Defendants, individually and in their
official capacities, were deliberately indifferent to Plaintiff Richard Bilik’s serious medical needs
in violation of his rights under the Eighth and Fourteenth Amendments to the United States
Constitution. As alleged in the complaint,1 the events giving rise to Bilik’s claims span nine
years, during which time Bilik was incarcerated at four different Illinois Department of
Corrections (“IDOC”) facilities, and involve 37 named individual Defendants, as well as multiple
John and Jane Doe defendants. Pending before the Court is a motion to dismiss the claims
against them filed by Defendants Marcus Hardy, Landria Dennis, and Nancy Ponovich. (Dkt. No.
102.) For the reasons detailed below, that motion is granted in part and denied in part. And
moreover, pursuant to 28 U.S.C. § 1915(e)(2)(b), the Court dismisses all other claims against all
Defendants, except for the lactose-intolerance claim asserted against Defendants Hardy and Kim
Butler.
1
The operative complaint in this action, which was filed by pro bono counsel recruited by the Court to
assist Bilik, attempts to consolidate Bilik’s claims from two separate lawsuits: Bilik v. Hardy et al., Case
No. 12-cv-4532 (N.D. Ill.), and Bilik v. Hardy et al., Case No. 12-cv-6325 (N.D. Ill.). For the reasons
detailed here, the Court does not find this to be a viable approach and, to the extent Bilik continues to
pursue all of his claims, he will need to do so in two separate actions.
BACKGROUND
For purposes of Defendants Hardy, Dennis, and Ponovich’s motion to dismiss, this Court
accepts as true all well-pleaded facts and views them in the light most favorable to Bilik. See,
e.g., Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009). The
Court applies the same standard in considering the sufficiency of Bilik’s consolidated complaint
for purposes of § 1915(e)(2)(b). See Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011).
Bilik is currently incarcerated at Pickneyville Correctional Center. At the times relevant
to his complaint, however, Bilik was incarcerated at the following IDOC institutions:
Western Illinois Correctional Center (“Western”) from March 8, 2007 to February
2009;
Stateville Correctional Center Northern Receiving and Classification Unit
(“Stateville NRC”) from February 8, 2010 to June 16, 2010;
Hill Correctional Center (“Hill”) from June 16, 2010 to July 14, 2010;
Stateville Correctional Center (“Stateville”) from July 14, 2010 to August 6,
2010; and
Menard Correctional Center (“Menard”) from June 14, 2010 to February 2, 2016.2
(Cons. Compl. ¶¶ 3–6, Dkt. No. 87.) As detailed below, Bilik alleges that Defendants, as
employees of the IDOC or Wexford Health Sources, Inc. (“Wexford”) 3 working at Western,4
There appears to be an error in Bilik’s alleged timeline. Based on the complaint, he was housed at
Menard during the same time periods he was housed at Hill and Stateville. The Court assumes that this is
a simple error.
2
3
The following named Defendants were employees of Wexford: Diane Schwarz, a medical doctor at
Stateville and Hill; Shanai Barnett, a licensed practical nurse at Stateville; Dolores Trevino, a nurse at
Stateville; Athena Rossiter, a licensed practical nurse at Stateville; Gary Drop, a licensed practical nurse
at Stateville; Stacey Keagle, a licensed practical nurse at Stateville; Lawanda Frazier-Banks, a CNII at
Stateville; Priscilla Seybert, a CNII at Stateville; and Robert Shearing, a doctor at Menard.
The following named Defendants were employees of the IDOC or Wexford at Western: S. Scott, a
Wexford nurse; R. Thompson, a Wexford medical staff member; Larson, a Wexford doctor; Brown, a
Wexford doctor; D. Drenner, a Wexford medical staff member; S. Brink, a Wexford nurse; Jane Doe,
4
2
Stateville,5 Hill,6 and Menard,7 or as officials of the State of Illinois,8 deprived him of basic
sustenance and adequate medical care.
I.
MRSA Infection
Bilik alleges that the Stateville and Wexford Defendants violated his Eighth and
Fourteenth Amendment rights by failing to treat his Methicillin-Resistant Staphyloccus Aureus
(“MRSA”) infection. Bilik claims that his MRSA infection stemmed from the unsanitary
conditions of his Stateville cell. The staff refused to distribute cleaning supplies on a regular
basis, making it difficult for Bilik to clean his cell. He repeatedly submitted grievances about the
lack of cleaning supplies. (Id. ¶ 35.) Those grievances were acknowledged but nothing was done
to remedy the problem. (Id. ¶ 36.) Consequently, inmates were confined to filthy cells. (Id.)
On or about June 9, 2010, Bilik began to develop an extremely painful growth on his face
that looked like a boil. (Id. ¶ 39.) At first, Bilik thought it was a spider bite, and he begged the
with the initials K.R., a Wexford practical nurse; C. Thornton, a Wexford practical nurse; P. Ellis, a
Western medical staff member; Jane Doe, with the initials S.R., a Wexford practical nurse; and H.
Lochard, a Wexford doctor.
The following named Defendants were employees of IDOC who worked at Stateville or Stateville NRC:
Marcus Hardy, Warden of Stateville; Nancy Ponovich, Superintendent of Stateville NRC; Landria
Dennis, correctional counselor at Stateville NRC.; A. Johnson, correctional officer; P. Mroz, correctional
officer; A. Bond, correctional officer; T. Valenzuela, correctional officer; Townsend, correctional officer;
Novahcvic, correctional officer; Alegbeleye, correctional officer; M. Williams, correctional officer; J.
Brooks, correctional officer; R. Lund, CWOO at Stateville; Amesymita, COO of Stateville; C. Coleman,
correctional officer; T. Woodcock, correctional officer; and Sargent John Doe #1.
5
6
The following named Defendants were employees of IDOC who worked at Hill: D. Clark, intake
officer; S. Taet, Wexford registered nurse; Amy John, PAC at Hill; Lieutenant John Doe #2; Movement
Correctional Officer John Doe #3; Correctional Officer John Doe #4; Wexford Nurse Jane Doe #1;
Wexford Nurse Jane Doe #2; and Wexford Nurse John Doe #3.
7
The following named Defendants were employees of IDOC who worked at Menard: Kim Butler,
Warden of Menard; Jacqueline Lashbrook, Assistant Warden at Menard; Counselor Jane Joes (1-3) and
Counselor John Does (1-3); Grievance Officer Jane Joes (1-3) and Grievance Officer John Does (1-3);
Correctional Officer John Does (1-3); Food Supervisor John Does (1-3); and Federke, a sergeant.
8
The following state actors are sued in their official capacities: Bruce Rauner, Governor of the State of
Illinois; John Baldwin, Director of IDOC; and Louis Shicker, Medical Director of IDOC.
3
correctional officers on staff for medical attention. (Id. ¶ 40.) As it turns out, however, Bilik was
suffering from a MRSA infection. (Id. ¶ 41.) The infection caused such swelling and pain that
Bilik was unable to eat or sleep, and frequently wept. (Id. ¶¶ 42, 47.) Notwithstanding the fact
that his face was noticeably swollen and he repeatedly cried out for help, Bilik’s MRSA infection
was left untreated for approximately one week at Stateville before his transfer to Hill. (Id. ¶ 43.)
Once he was transferred to Hill, Bilik’s condition was diagnosed as a MRSA infection and he
was provided with medication. (Id. ¶ 46.)
II.
Cranial Cyst
For some time, Bilik has suffered from a large cranial cyst protruding from his vertex.
(Id. ¶ 48.) It is unclear from the complaint when this cyst first developed, but Bilik claims that
the cyst causes him constant excruciating headaches, including migraines. (Id. ¶ 8.) The pain
relievers prescribed by the Western, Stateville, Hill, and Wexford Defendants did nothing to
relieve Bilik’s suffering; nonetheless, these Defendants refused to remove the cyst. (Id. ¶ 49.) It
was not until an intervening incarceration at Cook County Jail on April 12, 2012 that the cyst
was finally removed at Stroger Hospital. (Id. ¶ 50.) Following the surgery, however, the cyst
grew back, causing Bilik once again to experience intense headaches and migraines. The
headaches were so strong that medical staff at Menard attempted to treat them with Mobic, the
strongest pain-relief medication that Wexford will prescribe. This pain reliever was ineffective,
however. (Id. ¶ 52.) Indeed, the cyst remained so painful that Bilik was unable to stand for long
periods of time, which prevented him from going outside for three years. (Id. ¶ 53.)
Notwithstanding the ineffectiveness of the occasionally-prescribed pain relievers, all
Defendants at all IDOC facilities deemed removal of the large cranial cyst to be “elective” and
refused to prescribe the procedure. (Id.) Defendants’ reason for refusing Bilik the requested
4
medical treatment was the purported cost of the procedure. The Stateville Defendants also
provided a second reason for not removing the cyst—that Bilik only had two years remaining on
his sentence. (Id. ¶ 54.)
III.
Lactose Intolerance
After spending a short period of time at Cook County Jail, Bilik was transferred to
Stateville on or about February 8, 2010. (Id. ¶ 55.) Upon his arrival at Stateville, Bilik was
examined by several doctors, physician assistants, nurses, and medical technicians. (Id. ¶ 56.)
Bilik told these medical staff members that he was lactose intolerant and eating dairy products
causes him intense intestinal pain. (Id. ¶ 57.) Nonetheless, Bilik was repeatedly served dairy
products throughout his stay at Stateville. (Id. ¶ 58.) On numerous occasions, Bilik asked
Stateville correctional officers to accommodate his lactose intolerance. (Id. ¶ 59.) But the
officers’ only response was to tell Bilik that there were no special diet trays. (Id. ¶ 60.) Bilik was
forced to consume the dairy products served to him, and he consequently suffered. (Id. ¶ 62.) The
dairy products gave Bilik diarrhea, severe cramping, and flatulence. (Id. ¶ 63.) Annoyed by his
flatulence, Bilik’s cellmates routinely threatened him and, on two occasions, beat him. (Id. ¶ 63.)
The threats and beatings from his inmates caused Bilik to live in constant fear for his life and
safety. (Id. ¶ 64.)
After being denied grievance forms for approximately a week, Bilik was eventually able
to submit a grievance on March 20, 2010 regarding the lack of dairy-free food. (Id. ¶ 67.) Bilik
sent a second grievance on March 23, 2010. (Id.) Contemporaneously with those grievances,
Bilik also submitted weekly request slips to healthcare and sick call. (Id. ¶ 69.)
Around March 26, 2010, Bilik was prescribed Lactaid tablets by Defendant Diane
Schwarz, then a medical doctor at Stateville. (Id. ¶ 72.) The Lactaid pills proved ineffective, and
5
eventually Schwarz stopped giving Bilik that medication. (Id.) On March 31, 2010, Hardy, then
the Warden of Stateville, responded to Bilik’s grievances and request slips, stating that the
problem was not an emergency and denying Bilik’s plea for dairy-free meals. (Id. ¶¶ 68, 70.)
Also on March 31, 2000, Defendant Dennis, then a correctional officer at Stateville, responded to
Bilik’s second grievance dated March 23, 2010, stating that “medical records indicate offender
Bilik was seen by the physician’s assistant on March 26, 2010 and was given meds[] for his
medical concerns.” (Id. ¶ 71.) Bilik continued to submit medical requests on a weekly basis, but
the Stateville Defendants did nothing. (Id. ¶ 75.) On July 1, 2010, Defendant Dennis answered
another of Bilik’s grievances stating that “this counselor has been told by [Stateville] Medical
Staff that they do not provide special diet trays to offenders even in cases of food allergies.” (Id.
¶ 76.)
Eventually, Bilik was transferred to Menard, where he was also given dairy products at
mealtime. (Id. ¶ 78.) At Menard, grievance forms were virtually impossible to obtain, making the
grievance procedure unavailable to inmates. (Id. ¶ 79.) Bilik was nonetheless able to submit
some grievances. (Id. ¶ 80.) In response, Defendants Kim Butler and Jacqueline Lashbrook,
respectively the Warden and Assistant Warden of Menard, through Defendant Federke, a
sergeant, told Bilik to “stop grieving” and performed retaliatory shake downs of Bilik’s cell
during which his belongings would get tossed about for no reason. (Id.) The correctional officers
also retaliated against Bilik by refusing to refer him to the medical technician. (Id. ¶ 83.)
Nonetheless, Bilik continued to complain to correctional officers about his dietary restrictions.
(Id. ¶ 85.) Despite being advised of Bilik’s lactose intolerance, the Menard Defendants failed to
assist Bilik by either providing lactose-free meals or directing him to a medical technician. (Id.
6
¶ 86.) Consequently, during his time at Menard, Bilik was forced to purchase virtually all his
meals from the prison commissary. (Id. ¶ 87.)
IV.
Allegations Relating to the Lippert v. Godinez Report
In addition to allegations regarding Bilik’s lack of medical care, the complaint also
incorporates allegations of systemic deficiencies relating to lack of medical staff, inadequate
medical records, and insufficient medical facilities at all IDOC correctional facilities. (Id. ¶ 91–
93.) Bilik bases these allegations on an expert report prepared in Lippert v. Godinez, No. 10-cv4603, 2015 WL 3777551 (N.D. Ill. June 16, 2015). (Id. ¶ 91.) Bilik specifically focuses on the
findings regarding Stateville, noting the following alleged deficiencies at that facility: (1) a
number of vacant positions; (2) a lack of appropriate clinical space; (3) delays in medical
processing; and (4) poor quality medical records. (Id. ¶¶ 93–97.) While Bilik pays particular
attention to Stateville’s alleged deficiencies, he also broadly condemns the lack of adequate
healthcare resources and staffing at all IDOC facilities. (Id. ¶ 103.) Bilik also alleges that there is
little or no supervision of the medical services provided by the Wexford Defendants, thus
permitting Wexford to largely monitor itself, which results in an untenable conflict of interest.
(Id. ¶¶ 104–05.) Bilik does not allege that any of these system-wide policies caused the denial of
his own medical care.
V.
Procedural History
Bilik filed his initial complaint on June 11, 2012. (Initial Compl., Case No. 12-cv-4532,
Dkt. No. 1.) That initial complaint named Marcus Hardy, Diane Schwarz, and the Illinois
Department of Corrections as Defendants. (Id. at 2.) The complaint contained numerous claims,
including allegations regarding lack of medical treatment for his cranial cyst and MRSA
infection, and a failure to provide food that accommodated his lactose intolerance. In reviewing
7
the initial complaint pursuant to 28 U.S.C. § 1915A, this Court held that Bilik had alleged
several unrelated claims that were improperly joined, and consequently dismissed the complaint
without prejudice. (Case No. 12-cv-4532, Dkt. No. 7.) This Court advised Bilik to file his cranial
cyst and MRSA claims separately from his conditions of confinement claims (which included
allegations regarding the lack of dairy-free food). (Id.) Bilik complied with this Court’s order and
filed his lactose-intolerance claim under the new case number 12-cv-06325 on July 15, 2012.
(See Case No. 12-cv-06326, Dkt. No. 1.) Meanwhile, Bilik filed an amended complaint
regarding his MRSA and cranial-cyst claims under the original case number, 12-cv-04532, on
July 15, 2012. (See Case No. 12-cv-04532, Dkt. No. 9.)
Thereafter, Bilik filed a motion to consolidate his complaints (Case No. 12-cv-04532,
Dkt. No. 18), which this Court denied, (Case No. 12-cv-04532, Dkt. No. 25.) The Court did,
however, grant Bilik’s motions for attorney representation in both cases and recruited the same
counsel to represent him in each. Then, on May 13, 2016, Bilik filed a consolidated complaint,
incorporating claims from case numbers 12-cv-06325 and 12-cv-04532. (See Case No. 12-cv04532, Dkt. No. 87.) This consolidated complaint was filed under case number 12-cv-04532 and
is the only operative complaint.
DISCUSSION
To survive a motion under Federal Rule of Civil Procedure 12(b)(6), “a complaint must
contain sufficient factual allegations, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). This pleading standard does not necessarily require a complaint to
contain detailed factual allegations. Twombly, 550 U.S. at 555. Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
8
inference that the defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis,
742 F.3d 720, 728 (7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
Defendants Hardy, Dennis, and Ponovich move to dismiss Bilik’s claims against them on
two primary grounds: (1) his claims are barred due to insufficient service and failure to timely
file; and (2) he has failed to allege facts sufficient to state a claim upon which relief can be
granted. Although the remaining Defendants have neither joined in the motion to dismiss nor
filed their own responsive pleading, this Court can nonetheless address the entire complaint and
all named Defendants pursuant to the directions in 28 U.S.C. § 1915(e) and § 1915A(b).
Pursuant to Sections 1915(e) and 1915A(b), this Court may dismiss an in forma pauperis
prisoner suit sua sponte if it appears at any time that the action fails to state a claim upon which
relief can be granted. See Hughes v. Godinez, No. 15-cv-01685, 2015 WL 8519521, at *7 (N.D.
Ill. Dec. 11, 2015).
I.
MRSA Infection
The Court turns first to Bilik’s claims that the Stateville and Wexford Defendants were
deliberately indifferent to his MRSA infection.
A “person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State” deprives another “person within the jurisdiction of [the United States] . . . of any
[constitutional] rights . . . shall be liable to the party injured . . . .” 42 U.S.C. § 1983. Prisoners
enjoy a constitutional right not to be subjected to cruel and unusual punishment. U.S. Const.
amend. VIII. That right includes “a right to adequate medical care.” See Berry v. Peterman, 604
F.3d 435, 439 (7th Cir. 2010). To state a claim for constitutionally deficient medical care, a
plaintiff “must demonstrate two elements: (1) an objectively serious medical condition; and (2)
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an official’s deliberate indifference to that condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th
Cir. 2011).
There are two different standards of deliberate indifference applicable in this case: one
for prison officials and one for medical personnel. Overall, “[t]he Eighth Amendment safeguards
the prisoner against a lack of medical care that ‘may result in pain and suffering which no one
suggests would serve any penological purpose.’” Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 828 (7th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state an
Eighth Amendment claim based on deficient medical care, a plaintiff must allege an objectively
serious medical condition and an official’s deliberate indifference to that condition. Arnett, 658
F.3d at 751. Bilik has adequately pleaded that his MRSA infection was an objectively serious
medical condition. See Myrick v. Anglin, 496 Fed. App’x 670, 674 (7th Cir. 2012) (plaintiff
whose MRSA caused “excruciating pain” demonstrated “a sufficiently serious condition to
support an Eighth Amendment claim”).
Prison officials generally are “entitled to relegate to the prison’s medical staff the
provision of good medical care.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009).
However, the Seventh Circuit has recognized that even when a prisoner is under medical
supervision, a prison official may be held liable for deliberate indifference to the prisoner’s
serious medical needs if that prison official has “a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner.” Arnett, 658 F.3d at
755 (quoting Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008)). Thus, deliberate indifference
claims may proceed against non-medical prison authorities when the pleadings indicate that
those officials had actual, subjective knowledge of improper treatment. See id. at 755.
10
One way a prison official may obtain actual knowledge of an inmate’s serious medical
condition and inadequate medical care is through grievances or other correspondences. See Perez
v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015); see also Martinez v. Garcia, No. 08-cv-2601,
2012 WL 266352, at *5 (N.D. Ill. Jan. 30, 2012) (finding that a warden’s “failure to take action
despite receiving both a letter and an in-person communication” in which the plaintiff “informed
him of the medical staff’s refusal to treat him, coupled with [the prison doctor’s] unresponsive
memos, suffices to defeat” the warden’s motion for summary judgment on a deliberate
indifference claim). Alternatively, a serious medical condition may be so obvious that even a lay
person could perceive the need for a doctor’s attention. See Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005). But even if non-medical officials are aware of a medical need, they are generally
permitted to rely on decisions made by medical personal. See Hardy v. Wexford Health Sources,
Inc., No. 12-cv-6554, 2015 WL 1593597, at *7–8 (N.D. Ill. Apr. 2, 2015).
Meanwhile, medical professionals are liable for deliberate indifference if they make a
decision that is “such a substantial departure from accepted professional judgment, practice, or
standards, as to demonstrate that the person responsible actually did not base the decision on
such a judgment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (quoting Sain v. Wood,
512 F.3d 886, 895 (7th Cir. 2008)). Ultimately, the “decision of a medical professional to do
nothing, even though she knows that a patient has a serious medical condition requiring prompt
treatment that the professional is capable of and responsible for providing, amounts to deliberate
indifference.” Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940 (7th Cir. 2015).
In applying this deliberate-indifference framework, the Court notes several deficiencies
with respect to Bilik’s MRSA claim. First, Bilik does not specifically identify which nonmedical
prison officials had actual knowledge of his MRSA infection and how they obtained that
11
knowledge. For example, Bilik alleges that his face was noticeably swollen, but he does not
provide information about who exactly saw his face and therefore was responsible for contacting
medical authorities. Second, Bilik conflates the Stateville Defendants’ knowledge of his dirty
cell with knowledge of his MRSA infection. However, a filthy cell is a circumstance separate
and distinct from Bilik’s medical condition. Finally, Bilik has made no allegations whatsoever as
to how any of the individual Wexford Defendants were deliberately indifferent to his medical
condition. To state a claim, he must at least allege that the Wexford Defendants knew about his
medical condition and failed to act according to accepted professional standards.
For these reasons, Bilik’s MRSA claim is dismissed without prejudice in its entirety.
II.
Cranial Cyst
The same general problem that plagues Bilik’s MRSA claim also dooms his cranial cyst
claim. Bilik alleges that all 37 named Defendants, across four separate correctional facilities,
were deliberately indifferent to his cranial cyst in violation of his Eighth and Fourteenth
Amendment rights. But Bilik does not allege who, if anyone, had actual knowledge of his cranial
cyst.
To plead deliberate indifference adequately, a plaintiff must allege a prison official’s
actual awareness of the constitutional violation at issue. Bilik here broadly alleges that
Defendants had knowledge of his cranial cyst based on his written grievances, verbal complaints,
physical appearance, and medical examinations. Crucially, however, Bilik fails to allege to
whom he sent grievances, to which specific correctional officers he verbally complained, with
whom he came into contact who saw the cyst, and who gave him a medical examination. This
lack of specificity is insufficient to establish actual knowledge and deliberate indifference.
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Because Bilik has failed to allege that any Defendant knew about his cranial cyst, the claim is
dismissed as to all Defendants.
III.
Lactose Intolerance Claim
A.
Time-Barred Claims
For his final claim, Bilik alleges that the Stateville, Menard, and Wexford Defendants
were deliberately indifferent toward his lactose intolerance. According to Defendants Hardy,
Dennis, and Ponovich, however, this claim is time-barred.
Dismissal based on a statute of limitations is an affirmative defense. See Fed. R. Civ. P.
8(c)(1). Generally, “complaints do not have to anticipate affirmative defenses to survive a
motion to dismiss.” United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). But dismissal is
appropriate where “the allegations of the complaint itself set forth everything necessary to satisfy
the affirmative defense, such as when a complaint plainly reveals that an action is untimely under
the governing statute of limitations.” Id. In Illinois, the statute of limitations for claims under 42
U.S.C. § 1983 claims is two years. 735 ILCS 5/13-202. “For continuing Eighth Amendment
violations, the two-year period starts to run (that is, the cause of action accrues) from the date of
the last incidence of the violation, not the first.” Turley v. Rednour, 729 F.3d 645, 651 (7th Cir.
2013) A violation is continuing if it “would be unreasonable to require or even permit [plaintiff]
to sue separately over every incident of the defendant’s unlawful conduct.” Heard v. Sheahan,
253 F.3d 316, 319 (7th Cir. 2001). For continuing violations, the two-year period “accrues when
the defendant has notice of the untreated condition” and typically “ends only when treatment is
provided or the inmate is released.” Jervis v. Mitcheff, 258 Fed. App’x 3, *5–6 (7th Cir. 2007).
Here, Bilik alleges deliberate indifference toward his lactose intolerance throughout both of his
periods of incarceration at Stateville, as well as during his time at Menard.
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Bilik’s lactose-intolerance claim is properly considered as two continuing violations
corresponding to two separate time periods. Bilik’s first period of incarceration at Stateville
spanned from February 8, 2010 until June 16, 2010, at which point he was transferred to Hill for
a month. Bilik plainly knew about the significance of his claim prior to leaving Stateville, as he
made numerous complaints and filed grievances concerning his lactose intolerance during that
time period. Once Bilik was transferred from Stateville on June 16, 2010, he had all the
information he needed to file a complaint regarding those five months. See Heard, 253 F.3d at
318 (stating that a continuing violation lasted “for as long as the defendants had the power to do
something about his condition, which is to say until he left the jail”).
The parties do not dispute that Bilik filed his initial complaint on June 11, 2012, within
the two-year statute of limitations. However, this original complaint only named as Defendants
Hardy and Schwarz.9 It was not until July 15, 2012, when Bilik filed his amended complaint, that
numerous other Stateville, Menard, and Wexford Defendants were added as parties. This July 15,
2012 filing falls outside of the statute of limitations with respect to Bilik’s first period of
incarceration at Stateville—which ended on June 16, 2010. Therefore, the lactose-intolerance
claim for the first-period of incarceration is time-barred as to all Stateville Defendants except
Hardy and Schwarz.
In response to the motion to dismiss, Bilik argues that his amended pleading should relate
back to his original filing, which was timely. Indeed, Federal Rule of Civil Procedure 15(c)
allows a plaintiff to add otherwise time-barred claims against new defendants if the claims
“relate back” to the original complaint. Fed. R. Civ. P. 15(c). The amended pleading will “relate
back” if the proposed defendants “knew or should have known that the action would have been
9
The IDOC was also named in this original complaint but was terminated as an improper Defendant on
January 2, 2013.
14
brought against it, but for a mistake concerning the proper party’s identity.” Id. But Rule 15(c) is
inapplicable “[w]hen the original complaint and the plaintiff’s conduct compel the conclusion
that the failure to name the prospective defendant in the original complaint was the result of a
fully informed decision as opposed to a mistake concerning the proper defendant’s identity.”
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 552 (2010); see also Perales v. Cty. of LaSalle,
No. 15-cv-10110, 2017 WL 3434229, at *5 (N.D. Ill. Aug. 10, 2017) (“Relating back generally
occurs where the proper defendant is already before the court and the Rule can merely correct the
name under which the defendant has been sued, but a plaintiff fails to meet the requirements of
Rule 15(c) when the original and amended complaint taken together demonstrate that the
plaintiff chose not to include the defendant in the original complaint.”).
Bilik’s failure to name the Stateville and Wexford Defendants in his original complaint
was no mistake, but instead was the result of an unfocused and overbroad statement of facts.
Rather than discussing the numerous Defendants involved in his claims (at least some of whom
he could plainly identify by name, as evidenced by his grievances), Bilik spent a large portion of
his original complaint discussing a variety of unrelated claims—including that he was locked in
his cell for all but ten minutes per week, he did not receive any state pay, meals were served cold
and at inconvenient times, his mattress was lumpy and soiled, he was denied medication for his
migraines, he was only permitted to shave once a week, and the mail was backed up for up to
two months on a regular basis. When determining whether a claim should relate back, courts ask
“whether the defendant who is sought to be added by the amendment knew or should have
known that the plaintiff, had it not been for a mistake, would have sued him instead or in
addition.” Joseph v. Elan Motorsports Tech. Racing Corp., 638 F.3d 555, 559–60 (7th Cir.
2011). Here, it would not be reasonable to expect that the 15 newly-named Stateville Defendants
15
and the eight newly named Wexford Defendants (most of whom had no contact with Bilik based
on the allegations in the complaint) to have anticipated being sued based on the overbroad
allegations in Bilik’s original complaint.
Consequently, Bilik’s lactose-intolerance claim as it pertains to his first period of
incarceration at Stateville from February 8, 2010 until June 16, 2010 is time-barred with respect
to all Defendants except Schwarz and Hardy. The claim is not time-barred as to Bilik’s second
period of incarceration at Stateville, from July 14, 2010 to August 6, 2010.
B.
Failure to State a Claim
Although Bilik’s lactose-intolerance claim is not entirely time-barred, it still suffers from
several deficiencies. Most significantly, despite that Bilik names all Stateville, Menard, and
Wexford Defendants as responsible, his complaint only specifically mentions Defendants Hardy,
Dennis, Schwarz, Butler, Lashbrook, and Federke. As mentioned above, Bilik cannot broadly
assert a claim of deliberate indifference against all Defendants but instead must specifically
allege how and when each Defendant was deliberately indifferent to his medical needs.
Accordingly, only the allegations with respect to Hardy, Dennis, Schwarz, Butler, Lashbrook,
and Federke might conceivably state a claim.
As also noted above, to allege deliberate indifference a plaintiff’s complaint must show:
(1) that the medial condition is objectively serious, and (2) that defendant had subjective
knowledge of the risk to the inmate’s health, and nonetheless disregarded this risk. Thomas v.
Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 301 (7th Cir. 2001). With respect to the first prong of a
deliberate indifference claim, an objectively serious medical condition is one “that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
16
would perceive the need for a doctor’s attention.” Edwards v. Snyder, 478 F.3d 827, 830–31 (7th
Cir. 2007) (internal quotation marks omitted).
At this stage in the proceedings, Bilik has alleged an objectively serious medical
condition. See Jackson v. Gordon, 145 Fed. App’x 774, 776 (3d Cir. 2005) (holding that the
plaintiff’s allegation of severe lactose intolerance and egg allergy, which resulted in inadequate
meals, was sufficient to state an Eighth Amendment claim). Specifically, Bilik claims that for the
years he was at Stateville and Menard, he was forced to eat dairy products, which caused
diarrhea, excruciating intestinal pain, and flatulence. The Seventh Circuit has recognized that a
prisoner’s complaints of chronic pain may be enough to support a claim. See Greeno, 414 F.3d at
655 (“[T]here is no requirement that a prisoner provide ‘objective’ evidence of his pain and
suffering—self-reporting is often the only indicator a doctor has a of a patient’s condition.”).
Further, Bilik’s consumption of dairy items caused flatulence, which resulted in Bilik being
routinely threatened by his cellmates and beaten on two occasions. Thus, according to Bilik the
failure to address his dairy allergy caused him to live in constant fear for his safety. Accepting
Bilik’s allegations as true, the Court concludes that Bilik has articulated an objectively serious
medical condition.
With respect to the non-medical prison officials—Hardy, Dennis, Butler, Lashbrook, and
Federke—to state a claim Bilik must allege “that the responsible prison officials were
subjectively aware of the condition, and consciously disregarded the risk to [his] health or
safety.” Hemphill v. Wexford Health Sources, Inc., No. 15-cv-04968, 2016 WL 2958449, at *2
(N.D. Ill. May 23, 2016). That is, he “must allege that a prison official, acting with a culpable
state of mind, knew of a significant risk to [his] health and disregarded that risk.” Id. (citing
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)). Generally, if an inmate is under the care of
17
medical experts, “a non-medical prison official will generally be justified in believing that the
prisoner is in capable hands.” Arnett, 658 F.3d at 755. Non-medical prison officials can,
however, be charged with deliberate indifference when they have “a reason to believe (or actual
knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.” Id.
(quoting Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008)). Inmate correspondence to a prison
official may “establish a basis for personal liability under § 1983 where that correspondence
provides sufficient knowledge of a constitutional deprivation.” Perez, 792 F.3d at 782. After
being alerted of a constitutional deprivation, a prison official’s refusal to act to remedy the
inmate’s situation may reflect deliberate indifference. Id.
Bilik alleges that he sent grievances regarding his lactose intolerance to Defendants
Hardy and Butler. Hardy responded to the lactose-intolerance grievance he received by deeming
it a non-emergency and refusing Bilik his requested relief of dairy-free meals; Butler responded
by instructing Federke to punish Bilik for his grievances by performing a retaliatory shake-down.
Read in the light most favorable to Bilik, the pleadings support a theory that prison doctors were
mistreating or not treating Bilik for the entire period he was in custody and that both Hardy and
Butler knew about the mistreatment or non-treatment through Bilik’s grievances but did nothing
to remedy the problem.
Bilik has not, however, alleged that Federke knew about his medical condition—indeed,
based on the complaint, Federke was simply complying with Lashbrook’s orders to shake-down
Bilik’s cell. And while Bilik claims that Lashbrook helped coordinate the shake-downs, he does
not indicate how Lashbrook knew about the lactose-intolerance issue. Therefore, as to Federke
and Lashbrook, Bilik has failed to state a claim of deliberate indifference.
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The only medical personnel Bilik specifically references as acting with deliberate
indifference towards his lactose intolerance is Schwarz. The bar that Bilik must clear to establish
Schwarz’s deliberate indifference is high, as such a claim is not equivalent to a medical
malpractice claim. Instead, medical professionals such as Schwarz are entitled to deference in
their treatment decisions unless no minimally competent professional would have so responded
under the circumstances. Roe v. Elyea, 631 F.3d 843, 857–58 (7th Cir. 2011). In other words, a
medical professional acting in a professional capacity is deliberately indifferent only if the
professional’s decision was such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the decision was not based on such a judgment at all.
Id. All Bilik alleges about Schwarz’s treatment is that she prescribed him Lactaid tablets. But it
is entirely unclear from the complaint when the tablets were prescribed, what Bilik discussed
with Schwarz, and whether he saw her again after she prescribed the Lactaid pills—in other
words, it is unclear what exactly Schwarz knew about Bilik’s medical condition. For these
reasons, Bilik has failed to plead a deliberate indifference claim against Schwarz.
In sum, based on the present allegations. Bilik may proceed with his lactose-intolerance
claim only against Hardy and Butler. The claims against all other Defendants are dismissed
without prejudice.
IV.
Allegations Relating to Lippert report
In addition to allegations of deliberate indifference to his individual medical needs, Bilik
also alleges that systemic deficiencies at each prison’s health care facility resulted in
constitutionally inadequate health care for all inmates. Despite spending several pages of his
complaint discussing these systemic deficiencies, however, Bilik does not include a separate
count with respect to them. Federal Rule of Civil Procedure 10(b) requires that a party limit its
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claims “as practicable to a single set of circumstances” and that “each claim founded on a
separate transaction or occurrence . . . must be stated in a separate count or defense.” Fed. R.
Civ. P. 10(b). The purpose of Rule 10(b), in conjunction with Rule 8, is to “give defendants fair
notice of the claims against them and the grounds supporting the claims.” Stanard v. Nygren, 658
F.3d 792, 797 (7th Cir. 20111). Because the systemic deficiencies allegations run afoul of Rule
10(b), the Court dismisses any separate claim sought to be asserted based on these allegations.
See Three D Departments, Inc. v. K Mart Corp., 670 F. Supp. 1404, 1409 (N.D. Ill. 1987)
(“Although Rule 10(b) does not specify the appropriate remedy for violations of its provisions,
courts retain the inherent power to order compliance with the rule.”). Moreover, the Court also
notes that Bilik fails to connect these alleged systemic issues to the facts of his case—there are
no allegations that the inadequacies alleged in the report impacted Bilik’s own medical care in
any way. Indeed, the reports that he references were based on prison monitoring and surveys that
were done after he left the Western, Stateville, and Hill facilities. Bilik also has failed adequately
to allege a claim based on systemic deficiencies for this reason as well.
V.
Failure to Timely Serve Hardy
The Court next addresses the argument in the motion to dismiss that Hardy was not
timely served. Federal Rule of Civil Procedure 4(c) requires the plaintiff in a civil action to serve
a summons, along with a copy of the complaint, on each defendant within the time allowed by
Rule 4(m). Fed. R. Civ. P. 4(c)(1). Under Rule 4(m), a defendant generally must be served
within 120 days after the complaint is filed. Fed. R. Civ. P. 4(m).10 If a defendant is not served
within the allotted time, the court must dismiss the action against the defendant unless the
plaintiff can show good cause for failure to timely serve. Tso v. Delaney, 969 F.2d 373, 375 (7th
10
At the time Bilik filed his original complaint, the deadline within which a defendant had to be served
was 120 days. Since then, however, the time to serve has been reduced to 90 days.
20
Cir. 1992). The plaintiff must show that he engaged in reasonable and diligent efforts to effect
service to support a finding of good cause. A plaintiff makes reasonable efforts if he proceeds in
a manner reasonably calculated to effect service within the prescribed time. “[H]alf-hearted
efforts to serve a defendant will not excuse a plaintiff from adhering to the 120-day deadline.”
Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988).
Bilik first filed his complaint against Hardy on June 11, 2012. Subsequently, Bilik’s
entire complaint was dismissed before summons issued. After Bilik filed his amended complaint,
Defendants Ponovich and Dennis executed waivers of service and an appearance was filed for
them on November 12, 2013. But Hardy was not served until more than two years after the
original complaint was filed. The Court finds that there was good cause for the delay in service
in this case. Given the complex procedural history of this case, the number of Defendants, and
the fact that Bilik was initially representing himself pro se from prison, the Court finds Bilik’s
delay in service to be excusable. Therefore, Defendants’ motion to dismiss Hardy for failure to
timely serve him is denied.
VI.
Severance
Finally, the Court considers whether all Bilik’s claims were properly brought in a single
complaint. Pursuant to Federal Rule of Civil Procedure 20, different claims against different
defendants can be joined in a single suit if the claims arise “out of the same transaction,
occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 20. However, as the
Seventh Circuit emphasized in George v. Smith, 507 F.3d 605 (7th Cir. 2007), unrelated claims
against different defendants belong in separate lawsuits. Id. at 607. Requiring separate lawsuits
not only “prevent[s] the sort of morass” that occurs in a multi-claim, multi-defendant lawsuit, but
it also ensures that prisoners pay the filing fees required under the Prison Litigation Reform Act.
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Id. When unrelated claims are brought in the same suit, “[t]he court may . . . sever any claim
against any party.” Fed. R. Civ. P. 21.
After considering the consolidated complaint filed by Bilik’s recruited counsel in this
case, the Court concludes that Bilik’s lactose-intolerance claim is an unrelated claim that belongs
in a different complaint from his claims based on his MRSA infection and cranial cyst. Bilik’s
lactose-intolerance claim is based on Bilik’s right to receive nutritious food and Defendants’
obligation to provide food that does not cause sickness. See Prude v. Clarke, 675 F.3d 732, 734
(7th Cir. 2012) (“Deliberate withholding of nutritious food or substitution of tainted or otherwise
sickening food, with the effect of causing substantial weight loss, vomiting, stomach pains, and
maybe an anal fissure . . . , or other severe hardship, would violate the Eighth Amendment.”). As
such, the lactose-intolerance claim will likely involve discovery related to Defendants’ meal
policies and practices, including what food Bilik was provided. In contrast, Bilik’s MRSA and
cranial-cyst claims stem from his right to receive adequate medical care and, if he can amend his
complaint to proceed with those claims, discovery will likely center solely around his requests
for treatment and subsequent medical attention. Given these differences, the Court finds that the
lactose-intolerance claim does not arise out of the same transaction or occurrence as the MRSA
and cranial-cyst claims.
Accordingly, the lactose-intolerance claims will be severed from the other claims. As
those claims were originally filed under case number 12-cv-06325, they will proceed forward
under that case number. Bilik shall file an amended complaint under case number 12-cv-06325
that focuses on the surviving lactose-intolerance claims. Given the convoluted nature of the
consolidated amended complaint, the Court will require the filing of an amended complaint even
if Bilik decides to proceed only as to the claims that have survived as currently alleged.
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Meanwhile, Bilik’s MRSA and cranial-cyst claims, which were originally asserted under case
number 12-cv-04532, shall proceed, if at all, under that case number.
CONCLUSION
For the foregoing reasons, Defendants Hardy, Dennis, and Ponovich’s motion to dismiss
(Dkt. No. 102) is granted in part and denied in part, and the Court dismisses other portions of the
complaint on its own motion pursuant to 28 U.S.C. § 1915(e)(2). Specifically, Bilik’s lactoseintolerance claim for his time at Stateville prior to June 16, 2010 is dismissed with prejudice,
except as to Defendants Hardy and Schwarz. And the post-July 15, 2010 Stateville lactoseintolerance claim is dismissed without prejudice as to all Defendants except Hardy and Butler.
Bilik’s MRSA-infection and cranial-cyst claims are dismissed in their entirety without prejudice.
Finally, the lactose-intolerance claim is severed from the MRSA infection and cranial cyst
claims. Bilik shall file an amended complaint under case number 12-cv-06325 with respect to the
surviving lactose-intolerance claims. Should he seek to amend his MRSA and cranial cyst
claims, he should do so in a separate amended complaint filed under this case number, 12-cv04532.
ENTERED:
Dated: August 24, 2018
__________________________
Andrea R. Wood
United States District Judge
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