Plummer v. Godinez et al

Filing 89

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 8/17/2015:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EDWARD PLUMMER,
Plaintiff,

Case No. 13 C 8253

v.

Judge Harry D. Leinenweber

S.A. GODINEZ, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pursuant
12(b)(6),

to

Federal

Defendants

Rules

Salvador

of
A.

Civil

Procedure

Godinez

12(b)(1)

(“Godinez”)

and

and
Lisa

Weitekamp (“Weitekamp”) have moved to dismiss Counts I, XXIII, and
XXV–XXIX of Plaintiff Edward Plummer’s Amended Complaint [ECF No. 66].
For the reasons stated herein, the Motion is granted.
I.

BACKGROUND

The Court draws the following factual background from Plummer’s
Amended Complaint.

In 1989, Plummer began serving a sentence for

murder at Menard Correctional Center (“Menard”).

At some time in

1991,

Defendants

while

administering

he

was

still

psychotropic

at
drugs

Menard,
to

certain

Plummer.

Plummer

transferred to Dixon Correctional Center (“Dixon”).
Plummer

first

reported

that

he

was

being

was

began
later

In 1996 or 1997,

“force-medicated.”

The

unwanted medication continued until Plummer was released from Dixon in
2007.

According to records that Plummer obtained from Dixon after his

release, he had been diagnosed with schizophrenia.

Plummer alleges

that the forced medication regime caused his condition to worsen,
resulting in permanent injuries.

Although the Amended Complaint names

sixteen Defendants — including unknown psychologists, psychiatrists,
and wardens at Menard and Dixon — only Drs. Aqeel Khan (“Khan”), Joy
Urubusi (“Urubusi”), and John Dorn (“Dorn”) allegedly administered any
medication to Plummer.

Khan and Urubusi have already been dismissed

from this action [ECF Nos. 75 & 85].

The Amended Complaint does not

attribute any conduct directly to Godinez, who was former director of
the Illinois Department of Corrections (“IDOC”).
In 2012, pursuant to the Illinois Freedom of Information Act
(“ILFOIA”), 5 ILCS 140/1, et seq., Plummer requested IDOC guidelines
regarding the administration of psychotropic drugs to inmates.

Lisa

Weitekamp, the information officer handling the request, refused to
remit the information Plummer sought.
Illinois

Attorney

General

(“IAG”),

Plummer then appealed to the

prompting

the

IAG’s

office

conduct an investigation and request certain documents again.

to

When

the IAG’s request went unanswered, Plummer wrote Weitekamp a letter.
To date, Plummer has not received any documents.
Plummer

alleges

that

Defendants’

forced

medication

practices

violated his rights under the Eighth and Fourteenth Amendments and
constituted

medical

malpractice

under

Illinois

law.

He

further

contends that Weitekamp and certain unknown record keepers violated
his Fourteenth Amendment rights in withholding the IDOC guidelines.
II.

LEGAL STANDARD

Under Rule 12(b)(1), a party may move to dismiss a case for lack
of subject matter jurisdiction.

FED. R. CIV. P. 12(b)(1).
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The burden

of establishing subject matter jurisdiction rests with the plaintiff.
Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999).

In ruling on

a 12(b)(1) motion, the Court accepts “as true all facts alleged in the
well pleaded complaint and draw[s] all reasonable inferences in favor
of the plaintiff.”

Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir.

2012).
A

motion

Rule 12(b)(6)

to

dismiss

challenges

for

the

failure

legal

to

state

sufficiency

a

of

claim
a

under

complaint.

Hallinan v. Fraternal Order of Chi. Lodge No. 7, 570 F.3d 811, 820
(7th Cir. 2009).

To survive a Rule 12(b)(6) motion to dismiss, a

complaint must contain “enough facts to state a claim to relief that
is plausible on its face.”
544, 570 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S.

As with a Rule 12(b)(1) motion, the Court must

accept all well-pleaded facts as true and view them in the light most
favorable to the plaintiff.

Camasta v. Jos. A. Bank Clothiers, Inc.,

761 F.3d 732, 736 (7th Cir. 2014).

However, a court need not accept

as true “legal conclusions, or threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements.”

Brooks

v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Ashcroft v. Iqbal,
556

U.S.

662,

678

(2009))

(internal

quotations

and

alterations

omitted).
III.
A.

ANALYSIS

Count I – Violation of 42 U.S.C. § 1983
Against Godinez

In Count I, Plummer alleges that Godinez deprived him of his
constitutional

rights,

medication regime.

presumably

in

conjunction

with

the

forced

Defendants argue that Count I should be dismissed
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because

Plummer

has

failed

to

allege

facts

suggesting

Godinez’s

personal involvement in any wrongdoing and because § 1983 does not
permit Plummer to sue Godinez in his official capacity.

Plummer does

not address either argument, but instead argues that Godinez “must be
named as a defendant” because he is the only individual capable of
implementing injunctive relief.
“In order to state a claim under Section 1983, a plaintiff must
allege that the defendants deprived him of a right secured by the
Constitution or laws of the United States, and that the defendants
acted under color of state law.”
1000, 1009 (7th Cir. 2000).

Brokaw v. Mercer Cnty., 235 F.3d

A “causal connection, or an affirmative

link” must exist between the alleged violation and the defendant.
Wolf-Lillie

v.

Sonquist,

699

F.2d

864,

869

(7th

Cir.

1983).

A

supervisory official cannot be held vicariously liable under § 1983
for conduct of his subordinates “unless the individual was personally
involved

in

the

wrongful

conduct

such

participated in the alleged violation.”

that

he

or

she

caused

or

Boyce v. Moore, 314 F.3d 884,

888 (7th Cir. 2002).
Plummer’s Amended Complaint does not contain any facts connecting
Godinez to the forced medication regime.

Nor does it indicate how

Godinez “caused or participated in” any wrongdoing carried out through
his subordinates.

The Court finds Plummer’s conclusory allegations

insufficient to state a claim under § 1983.
580

(rejecting

§

1983

claim

where

See, Brooks, 578 F.3d at

“vague

phrasing”

“adequately connect specific defendants to illegal acts”).

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failed

to

Plummer’s official capacity claim against Godinez fails for the
additional reason that it is barred by the Eleventh Amendment.

See,

Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); accord
Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015).

Plummer has no

claim to injunctive relief because, as Defendants point out, he was
released from prison in 2008.

See, Grayson v. Schuler, 666 F.3d 450,

451 (7th Cir. 2012) (finding claim for injunctive relief moot where
plaintiff

was

no

longer

incarcerated).

Accordingly,

the

Court

dismisses Count I.
B.

In

Count XXIII – Violation of 42 U.S.C. § 1983
Against Weitekamp

Count

XXIII,

Plummer

constitutional

rights

by

requested under ILFOIA.

alleges

withholding

that
the

Weitekamp
IDOC

violated

guidelines

he

his
had

Defendants characterize this claim as one

“for the release of documents under ILFOIA” that must be heard in
state court.
violation,

To the extent that Plummer is claiming a due process

Defendants

argue,

he

has

failed

to

allege

that

he

was

deprived of any constitutionally protected interest or subjected to
insufficient procedural protections.

Plummer contends that this Court

may exercise supplemental jurisdiction under 28 U.S.C. § 1367(a).
The Court first examines Count XXIII as a claim for relief under
ILFOIA.

ILFOIA provides injunctive and declaratory relief to persons

“denied access to inspect or copy any public record by a public body.”
5 ILCS 140/11(a).

When the denial is from a public body of the state,

“suit may be filed in the circuit court for the county where the
public body has its principal office or where the person denied access
resides.”

5

ILCS

140/11(b).

The
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statute

further

provides

that

Illinois circuit courts “shall have the jurisdiction to enjoin the
public

body

from

withholding

public

records

and

to

order

the

production of any public records improperly withheld from the person
seeking access.”

5 ILCS 140/11(d).

Courts within this District have

read ILFOIA as requiring claims to be heard in state court.

See,

Anderson v. Hardman, No. 99 C 7282, 1999 WL 1270692, at *3 (N.D. Ill.
Dec. 17, 1999) (“[Plaintiff] must seek to compel release of the state
agency records in state court. . . .

This court accordingly has no

jurisdiction to hear [plaintiff’s] claim as to any state FOIA claim he
may wish to make.”); Smith v. Peters, No. 95 C 3009, 1995 WL 382953,
at *1 (N.D. Ill. June 23, 1995) (“[Plaintiff’s] remedy, if any, must
come

through

courts.”).

the

Illinois

state

court

system,

not

the

federal

Although Plummer may ultimately need the IDOC guidelines

to evaluate his treatment, his ILFOIA claim is a “purely state-law
claim[]

only

tangentially

claim.”

Cannon v. Shomig, No. 99 C 3537, 1999 WL 571052, at *2 (N.D.

Ill. July 30, 1999).

related

to

the

federal

constitutional

The Court therefore lacks jurisdiction over

Count XXIII to the extent that it is an ILFOIA claim.
The Court now examines Count XXIII as a due process claim.

“To

state a procedural due-process claim, a plaintiff must allege (1)
deprivation of a protected interest, and (2) insufficient procedural
protections surrounding that deprivation.”

Michalowicz v. Vill. of

Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008).

A complaint fails to

state a valid procedural due process objection — and § 1983 claim — if
it

neglects

procedures.

to

challenge

the

fundamental

fairness

of

the

state’s

Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996)
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(citing Daniels v. Williams, 474 U.S. 327, 339–40, (1986) (Stevens J.,
concurring)).

Although Plummer vaguely alleges that he was “legally

entitled” to certain documents, (Am. Compl., ECF No. 50, ¶ 104), the
Amended Complaint is devoid of any allegations that the state affords
insufficient procedural protections in relation to ILFOIA requests.
Plummer has therefore failed to state a § 1983 claim for violation of
his Fourteenth Amendment rights.
Even if Plummer had adequately pleaded his claim, it would be
barred by the existence of an adequate remedy under ILFOIA —injunctive
and declaratory relief in state court.

Here, Plummer’s claim appears

to be based on Weitekamp’s failure to comply with the IAG’s order to
turn over documents.

(See, id. ¶ 55.)

Where a procedural due process

claim is based on “random and unauthorized” conduct such as this, “an
action for a denial of procedural due process will not lie . . . if an
adequate state remedy exists.”

Gray v. Baenen, No. 12-CV-1257, 2014

WL 201719, at *4 (E.D. Wis. Jan. 16, 2014).

Accordingly, the Court

dismisses Count XXIII.
C.

Counts XXV–XXIX – Claims against Menard,
Dixon, IDOC, and the State of Illinois

In Counts XXV–XXVII, Plummer alleges that Menard, Dixon, and IDOC
are liable for certain Defendants’ actions under a respondeat superior
analysis.

In Counts XXVIII–XXIX, Plummer alleges that IDOC and the

State

Illinois

of

are

indemnification purposes.

necessary

parties

to

this

action

for

Defendants contend that all five counts are

barred by the Eleventh Amendment.

Plummer responds that the Eleventh

Amendment does not prohibit suits for injunctive relief.

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The
state

Eleventh

officials

federal court.

Amendment

acting

in

immunizes
their

states,

official

state

capacities

agencies,
from

and

suit

in

Indiana Prot. & Advocacy Servs. v. Indiana Family &

Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010).

There are

several well-established exceptions to Eleventh Amendment immunity,
such as when a state consents to suit or Congress abrogates immunity
through legislation.
plaintiff
applies

to

seeks

Id. at 371.

injunctive

claims

against

Another exception arises when a

relief
state

—

however,

officials.

this
See,

exception
id.;

only

Brunken

v.

Lance, 807 F.2d 1325, 1329 (7th Cir. 1986) (explaining that where suit
is brought against state agencies, rather than state officials, the
Eleventh Amendment bars the suit, “regardless of the relief sought”).
“Illinois has retained the sovereign immunity afforded it under the
Eleventh Amendment,” except for tort cases for damages proceeding in
the Illinois Court of Claims.

Stone v. Pepmeyer, No. 07-1198, 2008 WL

879553, at *13 (C.D. Ill. Mar. 28, 2008).
Whether his respondeat superior and indemnification claims are
premised on his § 1983 or medical malpractice claims, the Eleventh
Amendment prohibits Plummer from seeking monetary damages against the
state and its agencies in federal court.

As noted above, Plummer has

no claim for injunctive relief because he was released from prison in
2008.

See, Grayson, 666 F.3d at 451.

Even if he did, the exception

to Eleventh Amendment immunity for injunctive relief would not apply
here

because

Counts

XXV–XXVII

are

Illinois agencies.

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brought

against

Illinois

and

Plummer’s respondeat superior claims are problematic for other
reasons.
Dixon,

First, in that Plummer seeks to impose liability on Menard,

and

IDOC

for

constitutional

violations

committed

by

their

employees, “there is no respondeat superior liability under § 1983.”
Askew v. Sheriff of Cook Cnty., Ill., 568 F.3d 632, 637 (7th Cir.
2009).

Second, the Defendants named in these counts are not “persons”

subject to suit under § 1983.

See, Joseph v. Bd. of Regents of Univ.

of Wisconsin Sys., 432 F.3d 746, 748 (7th Cir. 2005).

The Court

therefore dismisses Counts XXV–XXIX.
IV.
For the reasons

CONCLUSION

stated herein, Defendants’ Motion

to Dismiss

Counts I, XXIII, and XXV–XXIX [ECF No. 66] is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated:8/17/2015

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