Baisi v. Burke et al
Filing
46
MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 1/9/2019. Mailed notice. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Allen Jordan Baisi,
Plaintiff,
v.
Colleen Elizabeth Burke, Brij
Mohan, Zaida Iris Ndife, and
Angela Maria Owens,
Defendants.
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) No. 18-cv-58
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Memorandum Opinion and Order
Plaintiff is a federal prisoner formerly incarcerated at the
Metropolitan Correctional Center (“MCC”) in Chicago, Illinois, and
currently housed at the Great Plains Correctional Institution (the
“GEO Facility”) in Hinton, Oklahoma. In this action, plaintiff
alleges
that
defendants
violated
his
constitutional
rights
by
transferring him from the MCC to the GEO Facility in retaliation for
a previous lawsuit he filed against MCC employees and with deliberate
indifference to his serious medical needs. Before me is defendants’
motion to dismiss the complaint, which I grant for the following
reasons.
The GEO Facility is operated by the GEO Group, Inc., a private
contractor. Plaintiff alleges that in January of 2016, he dislocated
his shoulder in a fall, suffering a serious injury that he claims
was exacerbated by the MCC staff’s failure to treat him in a timely
or appropriate manner. The following month, plaintiff filed a pro se
action pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), against six individuals,
including defendants Angela Owens, the warden of the MCC, and Zaida
Ndife, the facility’s Health Administrator, alleging that their
failure to provide him adequate medical care violated the Eighth
Amendment. See Baisi v. Cordova, No. 16-CV-2661 (N.D. Ill. 2016)
(“Baisi I”). After screening the complaint as required by 28 U.S.C
§§1915(e)(2) and 1915A(a), Judge Gettleman dismissed defendants
Owens and Ndife on the ground that plaintiff had not alleged their
personal involvement in the asserted constitutional violation. See
Baisi I, Order of 04/29/2016. The court allowed plaintiff’s claims
to proceed against several other individuals, none of whom is named
here, and recruited counsel to represent plaintiff. Plaintiff later
dismissed these claims voluntarily on September 29, 2016, before any
summons had issued or any defendant had appeared in the case, because
he determined that he had not exhausted his administrative remedies.
Meanwhile, plaintiff underwent surgery on his shoulder on May
26, 2016. Thereafter, defendant Brij Mohan, the MCC’s Clinical
Director, assessed plaintiff and recommended a six-week course of
physical therapy to begin on June 14, 2016. Plaintiff’s orthopedic
surgeon likewise ordered a six-week course of physical therapy and
2
advised plaintiff that physical therapy was “a necessary and critical
component”
of
his
recovery.
Defendant
Mohan
noted
these
recommendations when he reassessed plaintiff on June 8, 2016, and he
ordered a follow-up visit with the orthopedic surgeon later that
month. According to the complaint, Mohan informed plaintiff that he
was on a “medical hold” until his physical therapy was completed,
meaning that plaintiff could not be transferred to another facility
during that time. Nevertheless, on July 14, 2016—after just three
sessions
Burke,
of
a
the
prescribed
nurse
at
the
physical
MCC,
therapy,
filled
out
a
defendant
form
Colleen
“authorizing”
plaintiff’s transfer to the GEO Facility. Plaintiff claims that since
his transfer to the GEO Facility, he has received no treatment for
his
shoulder
and
has
had
only
a
single
physical
therapy
“consultation.”
The instant Bivens action, filed in January of 2018, asserts
that defendants violated the First and Eighth Amendments of the
United
States
Constitution
and
conspired
to
violate
his
constitutional rights by intentionally failing to comply with his
medical
hold
and
by
transferring
him
to
the
GEO
Facility
in
retaliation for his filing of Baisi I. He claims that defendants
knew that his transfer would interrupt his prescribed physical
therapy and knew that he would not receive adequate medical care at
the GEO Facility because: 1) on April 23, 2015, an audit by the
Office of the Inspector General found inadequate staffing at the
3
health services unit at a facility operated by the GEO Group; 2) on
January 28, 2016, an investigative exposé reported thirty-eight
inmate deaths potentially linked to inadequate medical care at
privately contracted prisons; and 3) on February 9, 2016, U.S. House
Representative John Conyers, Jr., made remarks on the Congressional
Record regarding immigrant deaths in private prisons. Compl. at ¶ 74.
Defendants have moved to dismiss the complaint in its entirety,
arguing, inter alia, that plaintiff’s First Amendment and conspiracy
claims are foreclosed by Ziglar v. Abassi, 137 S. Ct. 1843 (2017),
and
that
they
plaintiff’s
discussion
are
entitled
asserted
of
the
claims.
first
to
qualified
Although
issue
raises
immunity
the
a
on
parties’
host
of
all
of
extensive
complex
and
interesting questions on which reasonable minds may differ, this
case does not compel their resolution because even assuming that
such claims are cognizable in theory, plaintiff’s complaint does not
plausibly
allege
constitutional
the
right.
violation
Accordingly,
of
any
defendants
clearly-established
are
entitled
to
qualified immunity, and I dismiss the complaint on that basis.
Plaintiff’s retaliation claims rest explicitly “[u]pon the
inferences that may be drawn from the chronology of events,” Compl.
at ¶¶ 113-14, 117-20, 124-26, and 137. He places special emphasis on
the fact that his transfer was ordered three weeks after he met with
his attorney at the MCC, and a week after his attorney filed an
appearance in Baisi I. The trouble with his retaliation theory,
4
however, is that the complaint does not allege that the individuals
he sues here were even aware of Baisi I (recall that Owens and Ndife—
the only defendants named in both cases—were dismissed at the
screening stage prior to being served, and that the remaining
defendants were likewise dismissed prior to receiving a summons),
nor does the complaint suggest that defendants knew anything about
the visit by plaintiff’s attorney or the reasons for it. Without any
factual basis in the complaint from which to infer that defendants
knew about Baisi I, or had any reason to suspect that his lawyer’s
visit was related to the claims he asserted in that case, his theory
that defendants conspired to transfer him to the GEO Facility in
retaliation for that lawsuit does not raise his “right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007).
Moreover,
the
complaint
fails
to
allege
any
defendants’
individual participation in the alleged constitutional violations.
Indeed, Nurse Burke is the only defendant alleged to have played any
role in effectuating his transfer to the GEO Facility, and her
involvement appears to have been ministerial: Plaintiff states that
Burke “completed an Inmate Intra-system Transfer form” in which she
identified
plaintiff’s
shoulder
injury
as
a
“current”
health
problem, and indicated that plaintiff should be given a two piece
uniform
“till
full
recovery
of
shoulder
surgery”
as
well
as
prescription and over-the-counter strength ibuprofen. Id. at ¶ 65.
5
Plaintiff complains that Burke did not also include his physical
therapy orders in these notations, but even if that omission was
wrongful, there remains no basis for concluding that Burke had any
control over the transfer itself, nor does it offer any reason to
suspect that she acted with either a retaliatory motive or deliberate
indifference to plaintiff’s serious medical needs.
Meanwhile, plaintiff attributes no affirmative conduct at all
to the remaining defendants (with the exception of Dr. Mohan, who he
claims prescribed the physical therapy he says he needs), nor does
he suggest that Dr. Mohan, Nurse Burke, or Health Administrator Ndife
had any authority over his transfer to the GEO Facility. And while
it may be reasonable to assume that Warden Owens had such authority,
plaintiff does not allege that she knew anything about his medical
needs prior to the date he claims the transfer was authorized on
July 14, 2017. Indeed, he alleges only that after the transfer was
initiated, he sent an urgent electronic message to Owens (as well as
to Mohan and Ndife) on Saturday, July 16, 2016, expressing his
concern that the transfer would interfere with his physical therapy
and his request to remain at the MCC. But the mere fact that these
missives went unanswered, or that the transfer was carried out as
scheduled two days later despite plaintiff’s concerns, does not,
without more, suggest either a retaliatory motive or deliberate
indifference to plaintiff’s medical needs on the part of Warden
Owens.
6
Indeed, deliberate indifference “requires that a defendant
actually know about yet disregard a substantial risk of harm to an
inmate’s health or safety.” Rasho v. Elyea, 856 F.3d 469, 476 (7th
Cir. 2017). Yet, the only factual basis for plaintiff’s claim that
defendants knew about the risk that his physical therapy regime would
be interrupted by a transfer to the GEO Facility is the trilogy of
published materials he cites from 2015 and 2016, one of which found
fault
with
health
services
staffing
at
“a
GEO-run
facility”
(apparently not the GEO Facility to which plaintiff was transferred),
and two of which reported an alarming number of inmate deaths in
private prisons. While inadequate staffing and inmate deaths are
certainly cause for concern, the publications as plaintiff describes
them in his complaint are a decidedly slim reed on which to claim
that Warden Owens actually knew that his transfer to the GEO Facility
posed a substantial risk of harm to his health because it would
interrupt his prescribed physical therapy.
Finally, even if plaintiff’s allegations were sufficient to
plead that any defendant was deliberately indifferent to his serious
medical needs, he offers no authority to suggest that by transferring
him to a private prison facility with potentially inferior health
services, a reasonable government official would have known that he
or she was violating clearly established law. Even at the motion to
dismiss
stage,
“plaintiff
carries
the
burden
of
defeating
the
qualified immunity defense.” Chasensky v. Walker, 740 F.3d 1088,
7
1095 (7th Cir. 2014). To overcome defendants’ assertion of qualified
immunity, plaintiff must show that the constitutional right he seeks
to vindicate was clearly established at the time of the conduct in
question. This inquiry “must be undertaken in light of the specific
context of the case, not as a broad general proposition.” Saucier v.
Katz, 533 U.S. 194, 201 (2001), receded from in part by Pearson v.
Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Indeed, plaintiff acknowledges that the right he asserts “must be
sufficiently particularized to put potential defendants on notice
that their conduct is probably unlawful.” Sherman v. Four Cty.
Counseling Ctr., 987 F.2d 397, 401 (7th Cir. 1993). Yet, his argument
in this connection merely reiterates the legal standard that applies
generally to such claims. See Opp. at 35 (“[i]t is also clearly
established law that it violates a plaintiff’s constitutional rights
if a prison official is deliberately indifferent to a serious medical
need.”). Indeed, none of plaintiff’s cited authorities suggests that
a reasonable prison official would have known that by transferring
plaintiff to the GEO Facility despite a medical hold for physical
therapy, she was violating his rights under the Eighth Amendment.
For the foregoing reasons, defendants’ motion is granted.
ENTER ORDER:
________________________
Elaine E. Bucklo
United States District Judge
Dated: January 9, 2019
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