Dolis v. Robert et al

Filing 5

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, IT IS HEREBY ORDERED that Defendants ROBERT, BENTON, TAYLOR, GAETZ, and GODINEZ are DISMISSED from this action with prejudice. Defendants UNKNOWN PARTY and WEXFORD HEALTH SERVICES, INC., ar e DISMISSED from this action without prejudice. IT IS FURTHER ORDERED that Plaintiffs deliberate indifference claim (COUNT 3), which is unrelated to the retaliation and due process claims, is SEVERED into a new case. That new case shall be: Claim a gainst DEFENDANTS SANTOS and KREBS for deliberate indifference to medical needs. The new case SHALL BE ASSIGNED to the undersigned District Judge for further proceedings. In the new case, the Clerk is DIRECTED to file the following documents: (1) T his Memorandum and Order (2) The Original Complaint (Doc. 1) (3) Plaintiffs motion to proceed in forma pauperis (Doc. 2)Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with the newly opened case, he must notify the Court in writing on or before September 21, 2012. The Clerk is DIRECTED to correct the docket sheet notation on DEFENDANT KREBS, to reflect that she is the "HCU Administrator, Centralia CC" (See Doc. 1, p. 1).As to COUNTS 1 and 2, which remain in t he instant case, the Clerk of Court shall prepare for Defendants McABEE, PITTS, and BURTON (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).(Action due by 9/21/2012). Signed by Judge J. Phil Gilbert on 8/22/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES DOLIS, # R-42411,

)
)
Plaintiff,
)
)
vs.
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BRAD ROBERT, DR. SANTOS,
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KREBS, McABEE, PITTS,
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C/O BURTON, BENTON, TAYLOR,
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GAETZ, S. A. GODINEZ,
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UNKNOWN PARTY, and
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WEXFORD HEALTH SERVICES, INC., )
)
)
Defendants.

CASE NO. 12-cv-819-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Pontiac Correctional Center (“Pontiac”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that as a result of
unconstitutional retaliation, he was found guilty of a false conduct violation and held in
segregation under harsh conditions. Further, the prison doctor was deliberately indifferent to a
serious medical condition.
More specifically, Plaintiff claims that after he began to file grievances over the denial of
medical treatment, Defendant McAbee issued a false disciplinary ticket against him on April 10,
2011. Defendant McAbee then directed the hearing committee (consisting of Defendants Pitts
and Burton) to find Plaintiff guilty and give him the maximum punishment because of his activity
in filing grievances (Doc. 1, pp. 3-5). During the hearing, Plaintiff was not permitted to present
documentary evidence in his defense. The committee found Plaintiff guilty and sanctioned him
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with 6 months in segregation, loss of 6 months good conduct credit,1 and a disciplinary transfer
(Doc. 1, pp. 6, 16).
Soon after, Plaintiff was transferred to Pontiac, where he remained in segregation for
several more months. He complains that while in segregation, he was not allowed to receive
prompt follow-up care for medical problems he experienced after undergoing an operation; was
forced to eat food containing soy, which made him ill; developed an eye infection due to exposure
to black mold; was denied sufficient exercise; and was housed in an unsanitary cell (Doc. 1, pp. 68).
Plaintiff also claims that he was diagnosed by an outside specialist with “Peyroneis
disease”2 and a “severe urethral stricture” (Doc. 1, p. 2). The specialist prescribed vitamin E
capsules and surgery. However, Defendant Doctor Santos denied Plaintiff the prescribed vitamin
E (Doc. 1, pp. 2-3; 9-10). Defendant Krebs (the Health Care Unit Administrator) also denied the
vitamin E because it was not an approved prescription, and told Plaintiff to buy multi-vitamins at
the commissary (Doc. 1, p. 10). Unfortunately, the multi-vitamins contained no vitamin E, and
Plaintiff thus could not get that prescribed remedy. Plaintiff did ultimately have surgery.
In addition to damages, Plaintiff requests injunctive relief in the form of a transfer to a
different facility, back pay, and expungement of his disciplinary ticket.

1

Plaintiff may not seek damages in this § 1983 action for the loss of good conduct credits. The
revocation of good time credits may be challenged in a federal habeas corpus action pursuant to 28
U.S.C. § 2254, but only after Plaintiff has exhausted his remedies through the Illinois state courts.

See, e.g., Heck v. Humphrey, 512 U.S. 477, 480-81 (1994). The Illinois courts have recognized
mandamus as an appropriate remedy to compel prison officials to award sentence credit to a
prisoner. See Turner-El v. West, 811 N.E.2d 728, 733 (Ill. App. 2004).
2

Peyronie’s disease is characterized by a curved, painful erection caused by scar tissue.
http://www.mayoclinic.com/health/peyronies-disease/DS00427 (last visited August 21, 2012).
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Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of
the complaint. Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has
articulated a colorable federal cause of action against Defendants McAbee, Pitts, and Burton for
retaliation (Count 1) and deprivation of a liberty interest without due process (Count 2), and
against Defendants Santos and Krebs for deliberate indifference to medical needs (Count 3).
However, to the extent that Plaintiff may be asserting an Eighth Amendment claim regarding the
conditions of his confinement at Pontiac, such a claim is not reviewable herein. Should Plaintiff
wish to pursue that matter, he must bring the claim in the Central District of Illinois, where the
claim arose and where the Pontiac defendants are located.
The claims against Defendants Robert, Taylor, Gaetz, and Godinez are dismissed on initial
review because the doctrine of respondeat superior is not applicable to § 1983 actions. Sanville
v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). Likewise, Defendant
Benton shall be dismissed, because she merely reviewed and concurred with the denial of
Plaintiff’s grievances. See Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Plaintiff has not
alleged that any of these Defendants were “personally responsible for the deprivation of a
constitutional right.” Id. Accordingly, these Defendants shall be dismissed with prejudice.
Plaintiff makes no allegations in the body of his complaint against Defendants Unknown
Party (Utilization Review Board), or Wexford Health Services, Inc., thus, he fails to state a claim
against them. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Therefore, these
Defendants shall also be dismissed, but without prejudice.
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that
unrelated claims against different defendants belong in separate lawsuits, “not only to prevent the

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sort of morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners
pay the required filing fees” under the Prison Litigation Reform Act. George, 507 F.3d at 607
(citing 28 U.S.C. § 1915(b), (g)). Plaintiff’s claims in Counts 1 and 2 against Defendants
McAbee, Pitts, and Burton for retaliation and deprivation of a liberty interest without due process
are unrelated to the deliberate indifference claims in Count 3 against Defendants Santos and
Krebs. Therefore, the claims in Count 3 shall be SEVERED into a new case as outlined below.
Disposition
IT IS HEREBY ORDERED that Defendants ROBERT, BENTON, TAYLOR,
GAETZ, and GODINEZ are DISMISSED from this action with prejudice. Defendants
UNKNOWN PARTY and WEXFORD HEALTH SERVICES, INC., are DISMISSED from
this action without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s deliberate indifference claim (COUNT 3),
which is unrelated to the retaliation and due process claims, is SEVERED into a new case. That
new case shall be: Claim against DEFENDANTS SANTOS and KREBS for deliberate
indifference to medical needs. The new case SHALL BE ASSIGNED to the undersigned
District Judge for further proceedings. In the new case, the Clerk is DIRECTED to file the
following documents:
(1) This Memorandum and Order
(2) The Original Complaint (Doc. 1)
(3) Plaintiff’s motion to proceed in forma pauperis (Doc. 2)
Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with the newly
opened case, he must notify the Court in writing on or before September 21, 2012. Unless
Plaintiff notifies the Court that he does not wish to pursue the newly opened action, he will be
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responsible for an additional filing fee in the new case. Service shall not be ordered on
Defendants Santos or Krebs until after the deadline for Plaintiff’s notification.
The Clerk is DIRECTED to correct the docket sheet notation on DEFENDANT
KREBS, to reflect that she is the “HCU Administrator, Centralia CC” (See Doc. 1, p. 1).
As to COUNTS 1 and 2, which remain in the instant case, the Clerk of Court shall
prepare for Defendants McABEE, PITTS, and BURTON (1) Form 5 (Notice of a Lawsuit and
Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The
Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and
Order to each Defendant’s place of employment as identified by Plaintiff. If a Defendant fails to
sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the
date the forms were sent, the Clerk shall take appropriate steps to effect formal service on that
Defendant, and the Court will require that Defendant to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if not
known, the Defendant’s last-known address. This information shall be used only for sending the
forms as directed above or for formally effecting service. Any documentation of the address shall
be retained only by the Clerk. Address information shall not be maintained in the court file or
disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
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true and correct copy of the document was served on Defendants or counsel. Any paper
received by a district judge or magistrate judge that has not been filed with the Clerk or that fails
to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Philip M. Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Frazier for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against Plaintiff and remit the balance to Plaintiff.
Local Rule 3.1(c)(1)
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of
Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
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after a transfer or other change in address occurs. Failure to comply with this order will cause a
delay in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 22, 2012

s/J. Phil Gilbert
United States District Judge

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