Stewart v. Mesrobian et al.

Filing 348

ORDER : For the following reasons, defendant Wayne Steele's motion to dismiss or sever claims III and IV 321 is denied. [See STATEMENT] Signed by the Honorable Philip G. Reinhard on 11/27/2017. Electronic notice (jp, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
LAVERTIS STEWART (A-15380) ,

)
)
Plaintiff,
)
)
v.
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EVANSTON INSURANCE COMPANY as )
Special Representative for the Estate of
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ANTREAS MESROBIAN; JILL WAHL;
)
IMHOTEP CARTER; WEXFORD HEALTH )
SOURCES, INC.; ARTHUR FUNK; JOHN
)
DOE TWO; JOHN DOE THREE; JOHN DOE )
FOUR; JOHN DOE FIVE; JOHN DOE SIX; )
JOHN DOE SEVEN; JOHN DOE EIGHT;
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JOHN DOE NINE; JOHN DOE TEN; JOHN )
DOE ELEVEN; JOHN DOE TWELVE; JOHN )
DOE THIRTEEN; JOHN DOE FOURTEEN; )
and JOHN DOE FIFTEEN,
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)
Defendants.
)

12 C 50273

Judge Philip G. Reinhard

ORDER
For the following reasons, defendant Wayne Steele’s motion to dismiss or sever
claims III and IV [321] is denied.
STATEMENT
This case has a long procedural history, detailed in the court’s previous orders.
See [154]; [189]; [300]. Familiarity with these matters is assumed. In relevant part, on
April 20, 2017, plaintiff filed his sixth amended complaint [306], in which he named for
the first time defendant Wayne Steele, former Assistant Warden of operations at Dixon
Correctional Center. On June 5, 2017, Steele filed a motion to dismiss the claims against
him, or in the alternative to sever the claims against him from those of the other
defendants [321], along with a memorandum in support [322]. On July 3, 2017, plaintiff
filed a response in opposition [330], on July 24, 2017, Steele filed a reply [332], and on
August 8, 2017, plaintiff filed a surreply [337]. These matters are now ripe for the
court’s review.
As noted, this court has detailed the relevant facts of this case in sufficient detail
elsewhere, see [154]; [189]; [300], and as such familiarity with those facts is assumed and
the court will only detail those additional facts relevant to the instant motion.

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In the Sixth Amended Complaint, plaintiff alleges that he has at various time been
issued 6-month No Black Box permits, which have occasionally been renewed and at
other times have lapsed for no medically relevant purpose, necessitating that plaintiff
undergo significant pain while he labors to have the permit reissued.
In October of 2016, plaintiff’s No Black Box permit had lapsed and he sought
another one in January of 2017 from Dr. Chamberlain, a medical professional at Dixon
with the authority to issue No Black Box permits. Dr. Chamberlain denied plaintiff’s
request, informing him that new policies promulgated by Steele and Dr. Chamberlain’s
Wexford supervisors prevented him from doing so unless an inmate had a broken wrist.
Nonetheless, in March of 2017, Dr. Chamberlain did issue a new No Black Box
permit, after plaintiff showed obvious signs of harm from wearing the Black Box.
Between plaintiff’s January conversation with Dr. Chamberlain and the reissuance of the
No Black Box permit, plaintiff was forced to wear the Black Box during medical writs.
When plaintiff asked Dr. Chamberlain in March why he had not issued plaintiff a No
Black Box permit in January, Dr. Chamberlain stated that he had been following
directives and pressure from Steele and his Wexford supervisors, despite Dr.
Chamberlain’s belief that plaintiff should never have been subjected to the Black Box.
Plaintiff also alleged that two other inmates were issued No Black Box permits between
October of 2016 and March of 2017, despite not having broken wrists.
In the Sixth Amended Complaint, plaintiff raises an official capacity claim against
Steele, seeking a permanent injunction preventing the use of the Black Box (Count III),
and a deliberate indifference Monell claim against Steele in his individual capacity for
promulgating and enforcing the policy of not issuing No Black Box permits without
evidence that a plaintiff had a broken wrist.
In his motion to dismiss, Steele first argues that the official capacity claim against
him is moot because he no longer works at Dixon. This argument is without merit,
because the official capacity claim is not against Steele himself and thus can be
substituted for the current Warden in his official capacity. Steele also argues that the
injunction plaintiff seeks is moot, because he currently has a No Black Box permit and
any possibility of future harm is speculative. This claim is without merit because
plaintiff alleges a repeated pattern of No Black Box permits lapsing over the course of his
incarceration without medical cause, which is why he seeks a permanent injunction. This
rises above the level of speculation, at least for pleading purposes.
Next, Steele argues that plaintiff has pleaded himself out of court on his
individual capacity Monell claims against Steele, noting that plaintiff pointed to other
inmates that were given No Black Box permits without broken wrists, and also that
plaintiff was ultimately given a No Black Box permit without a broken wrist.
As plaintiff points out, however, to plead himself out of court the complaint
would need to allege “facts that establish an impenetrable defense to its claims. Put
slightly differently, a plaintiff pleads himself out of court when it would be necessary to
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contradict the complaint in order to prevail on the merits.” See Epstein v. Epstein, 843
F.3d 1147, 1150 (7th Cir. 2016) (finding that “[a]lthough the defendants strenuously
argue otherwise, the emails attached to the complaint do not conclusively defeat [the
plaintiff’s] allegation that [the defendant] intercepted his emails contemporaneously with
their transmission.”).
Here, plaintiff alleged that Steele promulgated and enforced through pressure a
policy that inmates should not be given No Black Box permits without broken wrists.
The allegations that No Black Box permits were issued to other inmates and eventually
plaintiff himself do not conclusively prove that the policy did not exist and exerted some
pressure on Dr. Chamberlain. It is consistent with plaintiff’s allegations to find that
Steele implemented such a policy and that it caused Dr. Chamberlain to deny plaintiff’s
request in January of 2017, but that Dr. Chamberlain ignored it in some instances, such as
when he issued plaintiff a permit in March of 2017 after seeing signs of plaintiff’s
deteriorating condition. At this early stage, the court finds that plaintiff’s allegations are
not such that he would necessarily have to contradict the complaint in order to prevail on
the merits.
The court notes that Steele appears to assert in his reply that plaintiff has alleged
several possible constitutional claims against Steele regarding different aspects of the
Black Box policy, each of which standing alone are potentially insufficient. The court
disagrees with defendant’s reading of the Sixth Amended Complaint. Moreover, the
court agrees with plaintiff that Steele’s “divide and conquer” mode of argument has been
found improper by the Seventh Circuit, see Engel v. Buchan, 710 F.3d 698, 709 (7th Cir.
2013), and imposes a higher pleading standard than is required at this stage, see E.E.O.C.
v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). As such, Steele’s
motion to dismiss is denied.
Finally, the court denies Steele’s motion to sever because the claims against him
are part of the same series of occurrences as the claims against the medical defendants, all
of which deals with the issuance or denial of No Black Box permits. Under Fed. R. Civ.
P. 20(a), these claims are properly joined, and there is significant reason to keep these
claims together for trial convenience and the expedition of the final determination of
disputes. See Mayer Paving & Asphalt Co. v. General Dynamics Corp., 486 F.2d 763,
771 (7th Cir. 1973) (“The general policy [the joinder rules of] the Federal Rules of Civil
Procedure in general, is the impulse toward entertaining the broadest possible scope of
action consistent with fairness to the parties; joinder of claims, parties and remedies is
strongly encouraged.”) (internal quotations omitted). As such, Steele’s motion to sever is
denied.
Date: 11/27/2017
ENTER:

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United States District Court Judge
Electronic Notices (LC)

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