Wells v. Randale et al

Filing 107

ORDER DENYING WITHOUT PREJUDICE 85 MOTION for Sanctions and to Exclude Evidence filed by Bobby Wells, DENYING WITHOUT PREJUDICE 88 MOTION for Summary Judgment filed by Terry L McCann, Michael P. Atchison, S A Godinez, Willi am Spiller, GRANTING 101 MOTION for Reconsideration re 98 Order on Motion for Leave to File, filed by Terry L McCann, Michael P. Atchison, S A Godinez, William Spiller. In person hearing set for 4/3/2014 at 9:30 AM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson. See Order for Details. Signed by Magistrate Judge Donald G. Wilkerson on 3/13/14. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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)
)
Plaintiff,
)
)
v.
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WILLIAM SPILLER, TERRY L. MCCANN,)
S.A. GODINEZ, MICHAEL P. ATCHISON,)
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and MICHAEL LEMKE,
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)
Defendants.
BOBBY WELLS,

Case No. 3:11-cv-164-DG

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion for Sanctions and to Exclude Evidence filed
by Plaintiff on June 5, 2013 (Doc. 85), the Motion for Summary Judgment filed by Defendants on
July 15, 2013 (Doc. 88), and the Motion for Reconsideration filed by Defendants on September 30,
2013 (Doc. 101).

For the reasons set forth below, the Motion for Sanctions is DENIED

WITHOUT PREJUDICE, the Motion for Summary Judgment is DENIED WITHOUT
PREJUDICE, and the Motion for Reconsideration is GRANTED.
INTRODUCTION
Plaintiff’s claims stem from his incarceration at the Menard Correctional Center and the
Stateville Correctional Center after he underwent a total hip replacement surgery on December 18,
2007. According to Plaintiff, he was prescribed a low bunk/low gallery medical permit which
meant that he should have been housed in a cell that would reduce the necessity of climbing stairs,
an activity that Plaintiff finds painful and dangerous in light of his medical conditions (Plaintiff
also suffers from osteoarthritis, cervical spine degenerative disease and degenerative
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polyarthritis). However, Plaintiff was apparently classified as an “extreme high escape risk
‘Level E’ inmate” upon his return to the prison from surgery: Plaintiff allegedly attempted to
escape after his surgery. As a result of this classification, Plaintiff was subjected to various
additional restrictions with respect to property, movement, and visitation and was compelled to
switch cells every 90 days and switch prisons every year. Plaintiff’s prescription for a low
bunk/low gallery (which was issued in April, 2008 and renewed on a more-or-less yearly basis)
also was not honored by either Menard CC or Stateville CC throughout 2008 to the present. Thus,
Plaintiff is compelled to climb up and down multiple steps daily in order to eat, shower, and meet
visitors. Plaintiff states that no one has been assigned to assist him and he fell down stairs on
February 12, 2010 causing injuries.
Plaintiff claims that both his due process rights and the right to be free from cruel and
unusual punishment were (and are) violated by his classification as a Level E inmate. Plaintiff
alleges that prior to changing his classification (which increases the restrictions on his terms of
incarceration) he was not afforded the opportunity to a hearing or other due process. Plaintiff
further alleges that by failing to provide him with low bunk/low gallery housing, Defendants are
being deliberately indifferent to a serious medical need. Plaintiff has named Salvador Godinez,
Director of the Illinois Department of Corrections, Michael Atchison, the current Warden of
Menard CC, Michael Lemke, the current Warden of Stateville CC, Terry McCann, the former
Warden at Stateville CC, and William Spiller, the former Assistant Warden of Operations as
Menard CC as Defendants in the Second Amended Complaint filed on September 23, 2013 (Doc.
100). Count I alleges a deliberate indifference claim against Defendants Godinez, Atchison,
Spiller, and Lemke (in their individual and official capacities); and, Count II alleges a violation of
due process claim against all five Defendants (also in their individual and official capacities).
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Presently before the Court are a number of interrelated motions. In the Motion for
Sanctions (Doc. 85), Plaintiff claims that Defendants have deliberately and without justification
delayed the production of written discovery on Plaintiff’s alleged escape attempt and subsequent
Level E classification. For relief, Plaintiff seeks costs and an order that Defendants be denied the
ability to use the evidence at trial. In the Motion for Summary Judgment (Doc. 88), Defendants
seek judgment on both counts, arguing that Defendants lack personal involvement, that Plaintiff
has no liberty interest in his classification, that Plaintiff’s classification is related to a legitimate
penological interest, and that they are entitled to qualified immunity and sovereign immunity. In
the third Motion (Doc. 101), Defendants seek reconsideration of the Order (Doc. 98) granting
permission to file the Second Amended Complaint. Defendants argue that while they do not
object to the inclusion of Michael Lemke as a party-defendant, they do object to the additional due
process claim leveled against Defendants Spiller and Atchison.
Defendants has filed a response to the Motion for Sanctions (Doc. 87) and Plaintiff has
filed a reply brief (Doc. 106). Plaintiff has responded to the Motion for Summary Judgment
(Doc. 102) but has not responded to the Motion for Reconsideration.
Plaintiff originally filed a pro se complaint on March 4, 2011 (Doc. 1) naming eight
defendants including Defendants McCann and Spiller. Pursuant to a 28 U.S.C. § 1915A, a
screening Order (Doc. 12) found that Plaintiff could proceed on his deliberate indifference claim
against Defendant Spiller (only) because he made the decision to not honor the medical permits in
light of Plaintiff’s Level E classification. Plaintiff was also allowed to proceed on his due process
claim against Defendant McCann. Counsel was recruited for Plaintiff on January 4, 2012 (Doc.
25) and he filed an Amended complaint on March 20, 2012 (Doc. 37). In that Amended
Complaint, Plaintiff asserted deliberate indifference claims against Defendants Godinez,
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Atchison, and Spiller and due process claims against Defendants McCann and Godinez. As
indicated above, Plaintiff’s Second Amended Complaint asserts the deliberate indifference claim
against Defendant Lemke in addition to Defendants Godinez, Atchison, and Spiller and asserts the
due process claim against Defendant Spiller, Atchison, and Lemke, in addition to Defendants
McCann and Godinez.
MOTION FOR RECONSIDERATION
Plaintiff filed his Motion for Leave to File a Second Amended Complaint on April 24,
2013 arguing only that he seeks to add Defendant Lemke as a party because Plaintiff had been
transferred to Stateville CC with the same medical permit and the same classification. Plaintiff
did not indicate that he was also seeking to assert the due process claims against Defendants Spiller
and Atchison. Defendants did not file a timely objection. Plaintiff’s motion was granted and he
filed his Second Amended Complaint on September 30, 2013 not only adding Defendant Lemke
but also asserting the due process claim against three more Defendants.

Defendants now

complain that while they do not object to the addition of Defendant Lemke, they do object to the
due process claim being asserted against additional Defendants. Defendants also indicate that
they never did receive a copy of the proposed second amended complaint along with the motion.
The Motion is GRANTED. Plaintiff’s Motion only sought leave to amend to assert
claims against a new Defendant, Warden Lemke. On that basis, the Motion was granted and the
Second Amended Complaint should have only included the additional claim permitted by the
Court.

Therefore, the due process claims contained in Count II of the Second Amended

Complaint against Defendants Spiller and Atchison are hereby STRICKEN. The Court notes
that Defendant Lemke has not been served in this matter and service shall be directed by separate
order.
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MOTION FOR SANCTIONS
Plaintiff outlines a series of events related to his efforts to acquire documents related to his
alleged December 2007 escape attempt. Plaintiff states that Defendants failed to produce the
documents by the deadline included in the May 18, 2012 Scheduling Order (Doc. 44) directing
Defendants to produce records or statements of persons with knowledge of the incidents described
in the complaint. Plaintiff also states that Defendants have failed to produce the information
despite repeated requests (through discovery) and the filing of a Motions to Compel on March 27,
2013 April 9, 2013.1 Plaintiff argues that documents related to Plaintiff’s escape attempt were
produced on May 16, 2013 but that they are redacted and illegible. And, Plaintiff states that
additional discovery, including further written discovery and depositions, will be required. For
relief, Plaintiff seeks an Order that would prevent Defendants for using the undisclosed documents
and Plaintiff’s costs in filing the motion.
In response, Defendants indicate that, essentially, they sent requests for the information to
the Stateville litigation coordinator but did not receive a timely response from either the
coordinator or the IDOC. Defendants further state that within a week of receiving the redacted
documents, they sent them to Plaintiff’s counsel. Defendants note that the custodian of the
documents is the IDOC. Defendants further state that they have been cooperative in discovery
and in attempting to schedule depositions.

1

The docket in this case reveals that only one Motion to Compel was filed on April 9, 2013 (Doc.
75) and a hearing was held on April 17, 2013 (Doc. 78). Subsequent to that hearing, and on April
30, 2013, this Court granted in part the Motion to Compel and directed Defendants to produce
three Administrative Directives related to medical furloughs, transfer documents, and escape plans
(Doc. 84). No other motions to compel have been filed by Plaintiff nor has this Court directed
Defendants to specifically provide additional information regarding the particulars of Plaintiff’s
escape attempt and classification level. Plaintiff’s motion for sanctions was filed two months
after this Court’s Order.
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From Plaintiff’s supplemental response, it appears that he has received additional
discovery that he also believes is deficient and that the delay in receiving the documents has
prejudiced his efforts in prosecuting this matter.
The Court has considered the arguments made in the briefs and has determined that the
sanction of excluding evidence is not warranted in this matter. These motions have been pending
for a significant time (as has this matter) due to delay on the Court’s part. As this matter stands, a
trial date has not been set and a Motion for Summary Judgment is pending. In addition,
Defendant Lemke has not been served in this matter and may wish to conduct discovery in order to
present a defense. Any prejudice suffered by Plaintiff in the delay of this matter is not wholly due
to Defendants. The Court is also mindful that the IDOC is somewhat recalcitrant in cooperating
in the discovery process and that the actions of the IDOC cannot necessarily be attributed to the
Defendants themselves. In light of the arguments made in the brief that Plaintiff essentially needs
to do more discovery in order to fully prosecute this matter, and in order to move this matter along,
the following is hereby ORDERED:
1. Defendants’ Motion for Summary Judgment (Doc. 88) is DENIED
WITHOUT PREJUDICE.
2. Plaintiff’s Motion for Sanctions is DENIED WITHOUT PREJUDICE. The
Court denies the motion to the extent that Plaintiff seeks exclusion of evidence.
However, the Court will consider the imposition of costs and attorney fees
associated with the Motion and any subsequent, necessary, discovery.
3. This matter is SET for an in person hearing on April 3, 2014 at 9:30 a.m. The
parties shall be prepared to discuss ANY outstanding discovery that will need to be
accomplished prior to trial in this matter, and the costs associated thereof. The
parties should also be prepared to discuss the issue of Plaintiff’s official capacity
claims against the individual Defendants and what evidence exists that would
implicate their personal involvement in the claims made by Plaintiff.
3. By March 28, 2014, Plaintiff shall provide the Court with the costs associated
with filing the Motion for Sanctions (Doc. 85) including the reasonable attorney
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fees incurred.
CONCLUSION
For the foregoing reasons, the Court are the Motion for Sanctions and to Exclude Evidence
filed by Plaintiff on June 5, 2013 (Doc. 85) is DENIED WITHOUT PREJUDICE, the Motion
for Summary Judgment filed by Defendants on July 15, 2013 (Doc. 88) is DENIED WITHOUT
PREJUDICE, and the Motion for Reconsideration filed by Defendants on September 30, 2013
Doc. 101) is GRANTED.
IT IS SO ORDERED.
DATED: March 13, 2014

DONALD G. WILKERSON
United States Magistrate Judge

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