Foster v. Steele et al

Filing 78

ORDER. Defendant McCleskey's motion to dismiss 60 is granted. [For further details see order.] Signed by the Honorable Rebecca R. Pallmeyer on 1/22/2020. Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDRE FOSTER,
Plaintiff,
v.
JENNY BRAUER, TONYA WOLFORD,
SUSAN TUELL, KRISTINA MERSHON,
and NIKI MCCLUSKEY,
Defendants.

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No. 3:18 C 50018
Judge Rebecca R. Pallmeyer

ORDER
Defendant McCleskey’s motion to dismiss [60] is granted.
STATEMENT
Plaintiff Andre Foster was an inmate at the Illinois State Correctional Facility in Dixon,
Illinois. In this lawsuit, Foster, now represented by recruited counsel, contends that prison
nursing staff (Defendants Wolford, Tuell, and Mershon) ignored his repeated complaints,
causing delays in treatment for a painful inguinal hernia (Count I). In a second count, Foster
alleges deliberate indifference on the part of Niki McCluskey, 1 an X-ray technician at Dixon.
Specifically, Foster describes an incident on June 15, 2017, while Foster waited with other
inmates who had been scheduled for x-rays. “While attempting to have the X-Ray
administered,” Foster alleges, he told Defendant McCluskey that he needed to urinate. Foster
also told McCluskey “that his medication caused frequent urination and that he needed to use
the restroom immediately,” but McCluskey told him “that if he chose to leave, Defendant
McCluskey would ensure that he was placed at the back of the line, behind inmates with far
less medical needs.” Foster did not “reach a restroom in time and urinated [on] himself.”
Defendant McCluskey has moved to dismiss Count II. She alleges these allegations do
not support a claim of deliberate indifference to a serious medical need. The court agrees.
McCluskey cites cases holding that brief denial of toilet access does not constitute a violation of
the Eighth Amendment. See Castro v. Atchinson, No. 3:13-cv-00303-JPG-PMF, 2015 WL
7184816, adopted at 2015 WL 7177015 (S.D. Ill. Nov. 16, 2015) (collecting cases); Tabb v.
Randle, 10-479-MJR, 2011 U.S. Dist. 13302 at *8-9 (S.D. Ill. Feb. 10, 2011) (holding that a
single instance where guards refused to let inmate use the restroom did not violate the
Constitution). This court will assume, nevertheless, that being denied access to the toilet is a
humiliating and unpleasant at experience, presumably made worse in Foster’s case due to the
inguinal hernia he suffered from. Foster’s allegations demonstrate, however, that Defendant
McCluskey did not refuse to let him use the restroom, nor did she suggest she would deny
medical treatment should he do so. She merely told him that if he chose to use the restroom,
he would lose his place in line and would have to wait longer for his X-ray. As McCluskey
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Defendant asserts that her name is in fact Niki Bonnell; as this Defendant is referred to
by the name McCluskey in the docket, the court uses that name for purposes of this ruling.

argues in reply, her conduct appears perfectly reasonable; to hold Foster’s place in line while he
used the restroom could well have delayed access to the X-Ray process for other inmates. (Niki
Bonnell’e Reply [68] at 2.) Foster does not say how he knows that those other inmates had “far
less medical needs” or whether McCluskey herself was aware that Foster’s circumstances were
worse than others. Even if he is correct that McCluskey should have held the line for him, her
failure to do so cannot be characterized as deliberate indifference. Nor has Foster alleged any
physical injury resulting from the humiliation of urinating on himself, as required for a claim
under 42 U.S.C. § 1997e(e).
McCluskey’s motion to dismiss the claim against her [60] is granted.
ENTER:

Dated: January 22, 2020

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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