Kamartzis v. Gates et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, denying Plaintiff's motion for joinder (Doc. 1-1). IT IS FURTHER ORDERED that COUNT 4 against Defendants K. DEEN, C. BROWN and WARDEN GATES is DISMISSED with prejudice; accordingly, K. DEEN, C. BROWN and WARDEN GATES are DISMISSED from this action. IT IS FURTHER ORDERED that COUNTS 2 and 3 against DR. SHAH and A. RECTOR are SEVERED into a new case. IT IS FURTHER ORDERED that the only claim remaining in this action is COUNT 1 a gainst Defendant SANDRA FUNK. The Clerk of Court shall prepare for Defendant Funk: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 10/30/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS KARMATZIS, #N87984,
Plaintiff,
vs.
WARDEN GATES,
DR. SHAH,
A. RECTOR,
C. BROWN,
K. DEEN, and
SANDRA FUNK,
Defendants.

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Case No. 13-cv-001021-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Thomas Karmatzis, an inmate in Pinckneyville Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on a
variety of allegedly retaliatory actions taken against him, the denial of proper medical care, and
failure to accommodate his disabilities.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.

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An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to
relief must cross “the line between possibility and plausibility. Id. at 557.

Conversely, a

complaint is plausible on its face “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual
allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail to provide sufficient notice of a
plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se
complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
The Complaint
Plaintiff has two pending, interrelated cases regarding his medical care and retaliatory
acts by prison officials: Karmatzis v. Godinez, Case No. 11-cv-3373-SEM-BGC (C.D. Ill. filed
Oct. 4, 2011); and Karmatzis v. Baker, Case No. 13-cv-3121-SEM-BGC (C.D. Ill. filed April.
29, 2013). He has now filed this third case, advancing his theory that prison officials are
retaliating against him for grievances and litigation.

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According to the complaint, on June 14, 2013, Defendant Transfer Coordinator Sandra
Funk transferred Plaintiff from Graham Correctional Center to Pinckneyville Correctional Center
in retaliation for Plaintiff having filed the two civil rights actions mentioned above.
Defendant Dr. Shah, a physician at Pinckneyville, had previously worked at Western
Illinois Correctional Center and had some involvement in Case No. 11-cv-3373-SEM-BGC.
Upon Plaintiff’s arrival at Pinckneyville, Dr. Shah denied Plaintiff a low bunk/low gallery permit
and treatment and medication for Plaintiff’s orthopedic and gastrointestinal ailments (see Doc. 12, pp. 10-12). Plaintiff asserts that Dr. Shah acted with deliberate indifference and in retaliation
for past grievances and litigation.
On July 8, 2013, Plaintiff again sought medical care and Defendants Dr. Shah and Nurse
Practitioner A. Rector again refused treatment and medication for Plaintiff’s chronic pain,
gastrointestinal and urinary track issues.
On July 29, 2013, Plaintiff sought care from Dr. Shah for pain and muscle spasms, but he
was again denied treatment. Dr. Shah acknowledged that he remembered “everything” from
Western Correctional Center—which Plaintiff perceives to confirm that Dr. Shah acted with
deliberate indifference and a retaliatory motive.
On August 14, 2013, Dr. Shah and Nurse Practitioner Rector again denied Plaintiff
treatment and medication, as well as the use of a shower chair. Plaintiff again cites deliberate
indifference and retaliation. He further contends that the denial of a shower chair was a violation
of the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 et seq.
Defendants Grievance Officer K. Deen and Healthcare Administrator C. Brown and
Warden Gates allegedly “supported” Dr. Shah and Nurse Practitioner Rector’s deliberate
indifference and retaliation—apparently by and through their involvement in the grievance

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process, which resulted in the denial of Plaintiff’s grievances regarding his treatment at
Pinckneyville (see Doc. 1-2, pp. 3-9, 15-23).
Plaintiff seeks monetary damages and affirmative injunctive relief in the form of proper
medical treatment.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into four counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
designation of these counts does not constitute an opinion as to their merit.
Count 1: Defendant Transfer Coordinator Sandra Funk transferred
Plaintiff from Graham Correctional Center to
Pinckneyville Correctional Center in retaliation for
Plaintiff’s grievance and litigation activity, in violation of
the First Amendment;
Count 2: On multiple occasions, Dr. Shah and Nurse Practitioner A.
Rector, motivated by deliberate indifference and retaliation
for litigation and grievances filed by Plaintiff, failed to treat
Plaintiff’s serious medical needs, in violation of the Eighth
and First Amendments;
Count 3: On August 14, 2013, Dr. Shah and Nurse Practitioner A.
Rector denied Plaintiff a shower chair, thereby violating
the Americans with Disabilities Act of 1990, 42 U.S.C.A. §
12101 et seq., and Rehabilitation Act of 1973, 29 U.S.C. §
794 et seq.; and
Count 4: Grievance Officer K. Deen, Healthcare Administrator
C. Brown and Warden Gates, by and through their
involvement in the grievance process, allegedly
“supported” Dr. Shah and Nurse Practitioner Rector’s
retaliation and deliberate indifference in violation of the
First and Eighth Amendments.

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The

Discussion
Count 1
Plaintiff had no constitutional right not to be transferred between prisons, provided the
transfer did not impose an atypical hardship compared to the incidents of ordinary prison life.
Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008); Sandin v. Conner, 515 U.S. 472 (1995).
However, under the First Amendment “an act in retaliation for the exercise of a constitutionally
protected right is actionable under Section 1983 even if the act, when taken for different reasons,
would have been proper.” Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987); see also
Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012).

To prevail on a First Amendment

retaliation claim, a plaintiff must show that “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in
the future; and (3) the First Amendment activity was ‘at least a motivating factor’ in the
[Defendant’s] decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th
Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)).
The allegations regarding Transfer Coordinator Sandra Funk state a colorable First
Amendment claim for a retaliatory transfer. Therefore, Count 1 shall proceed against Defendant
Funk.
Count 2
Count 2 alleges that Dr. Shah and Nurse Practitioner A. Rector, motivated by deliberate
indifference and retaliation for litigation and grievances filed by Plaintiff, failed to treat
Plaintiff’s serious medical needs, in violation of the Eighth and First Amendments.
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment. See also Berry v. Peterman, 604 F.3d 435, 439 (7th

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Cir. 2010). Prison officials violate the Eighth Amendment’s proscription against cruel and
unusual punishment when their conduct demonstrates “deliberate indifference to serious medical
needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A medical condition need not
be life-threatening to be serious; rather, it can be a condition that would result in further
significant injury or unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy,
593 F.3d 610, 620 (7th Cir. 2010).
Again, under the First Amendment, “an act in retaliation for the exercise of a
constitutionally protected right is actionable under Section 1983 even if the act, when taken for
different reasons, would have been proper.” Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir.
1987); see also Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012).
The allegations in Count 2 are sufficient foundation for Eighth and First Amendment
claims.
Count 3
Count 3 is premised upon the allegation that Dr. Shah and Nurse Practitioner A. Rector
denied Plaintiff a shower chair, thereby violating the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C.A. § 12101 et seq. In Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012),
the Court of Appeals instructs that claims on account of disability, particularly claims by pro se
litigants, should sua sponte be analyzed under both the ADA and the Rehabilitation Act of 1973,
29 U.S.C. § 794 et seq. Accordingly, the Court has added a Rehabilitation Act claim to Count 3.
The Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and the Americans with
Disabilities Act of 1990, 42 U.S.C.A. § 12101 et seq., both prohibit discrimination against
qualified individuals based on their physical or mental disability. The Rehabilitation Act permits
suit against Defendants in their official capacities—in effect suing Illinois—for monetary

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damages, and the potential relief under the ADA is the same. See Jaros v. Illinois Dept. of
Corrections, 684 F.3f 667, 672 (7th Cir. 2012).
Count 3 of the complaint states colorable claims under the ADA and Rehabilitation Act.
Count 4
Count 4 is premised upon allegations that Grievance Officer K. Deen, Healthcare
Administrator C. Brown and Warden Gates “supported” Dr. Shah and Nurse Practitioner
Rector’s retaliation and deliberate indifference, thereby violating the First and Eighth
Amendments themselves.
Merely ruling against a prisoner’s grievance does not cause or contribute to the
underlying constitutional violation. See George v. Smith, 506 F.3d 605, 609-10 (7th Cir. 2007).
Furthermore, prison officials without medical expertise are entitled to rely upon medical staff to
provide good medical care. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Insofar
as Defendant Brown, as Healthcare Administrator, may have medical expertise or some role in
Plaintiff’s medical care, a review of the documentation submitted in support of the complaint
reveals that Brown’s role in the grievance process was in providing information requested in
connection with the review of Plaintiff’s grievances, which is not enough to support a First or
Eighth Amendment claim.
For these reasons, Count 4 will be dismissed with prejudice.
Severance
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
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,

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(citing 28 U.S.C. § 1915(b), (g)).

Plaintiff’s complaint contains unrelated claims against

different defendants. The only similarity or link between the retaliation claim in Count 1 against
Transfer Coordinator Funk, and the medical care and retaliation claims in Count 2 against Dr.
Shah and Nurse Practitioner Rector, and the ADA and Rehabilitation Act claims against Dr.
Shah and Nurse Practitioner Rector in Count 3, is the allegation of retaliation—a legal theory.
Count 1 is otherwise unrelated to Counts 2 and 3. Counts 2 and 3 are against the same
defendants and both will require delving into the proper treatment for Plaintiff’s medical needs,
so they can be prosecuted together in a single action.
Consistent with the George decision and Federal Rule of Civil Procedure 21, Count 1
shall proceed in this case, and the Court shall sever Counts 2 and 3 of the complaint, and shall
open a new case with a newly-assigned case number for those claims. However, Plaintiff shall
have an opportunity to voluntarily dismiss the newly severed case if he does not wish to proceed
on those claims or incur the additional filing fee.
Pending Motions
Joinder
Within the complaint there is a motion to join this action with the other two actions
Plaintiff has pending in the Central District of Illinois.
A plaintiff may join two or more defendants in a single action under Federal Rule of Civil
Procedure 20 if two independent requirements are satisfied: (1) the claims against the defendants
must be asserted “with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences,” and (2) there must be a “question of law or fact common to all
defendants.” See Fed.R.Civ.P. 20(a)(2). The purpose of the rule is “to promote trial convenience

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and to expedite the resolution of disputes, thereby preventing multiple lawsuits,” 7 Charles A.
Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 1652.
Putting aside venue considerations, Plaintiff cannot satisfy Rule 20(a)(2), particularly not
now that this action presents only the retaliatory transfer claim. These cases pertain to different
defendants, different incidents and different prisons. Section 1983 is premised upon individual
liability, so the fact that Plaintiff is advancing similar theories regarding retaliation is an
insufficient basis for transfer and joinder. Also, these three cases are at very different stages.
Therefore, Plaintiff’s motion for joinder (Doc. 1-1) is denied.
Pauper Status
Also before the Court is Plaintiff’s motion for leave to proceed in forma pauperis (Doc.
2), which shall be decided by separate order, now that Plaintiff’s trust fund account has been
received.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s motion for joinder (Doc. 1-1) is DENIED.
IT IS FURTHER ORDERED that COUNT 4 against Defendants K. DEEN, C.
BROWN and WARDEN GATES is DISMISSED with prejudice; accordingly, K. DEEN, C.
BROWN and WARDEN GATES are DISMISSED from this action.
IT IS FURTHER ORDERED that COUNTS 2 and 3 against DR. SHAH and A.
RECTOR are SEVERED into a new case. That new case presents the following claims:
Count 2: On multiple occasions, Dr. Shah and Nurse Practitioner A.
Rector, motivated by deliberate indifference and retaliation
for litigation and grievances filed by Plaintiff, failed to treat
Plaintiff’s serious medical needs, in violation of the Eighth
and First Amendments; and

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Count 3: On August 14, 2013, Dr. Shah and Nurse Practitioner
A. Rector denied Plaintiff a shower chair, thereby violating
the Americans with Disabilities Act of 1990, 42 U.S.C.A. §
12101 et seq., and Rehabilitation Act of 1973, 29 U.S.C. §
794 et seq.
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)
(2)
(3)
(4)

This Memorandum and Order;
The Original Complaint (Doc. 1);
Plaintiff’s motion to proceed in forma pauperis (Doc. 2); and
Plaintiff’s Trust Fund Account Statement (Doc. 6)

Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with the newlyopened case, he must notify the Court in writing on or before November 29, 2013. Unless
Plaintiff notifies the Court that he does not wish to pursue the newly opened action, he will be
responsible for an additional $400.00 filing fee in the new case ($350.00 if he is granted
pauper status). Service shall not be ordered on Defendants Shah and Rector in the new case until
after the deadline for Plaintiff’s response.
IT IS FURTHER ORDERED that the only claim remaining in this action is COUNT
1 against Defendant SANDRA FUNK.
Although Plaintiff’s motion for leave to proceed in forma pauperis is pending, a review
of his Trust Fund Account Statement reveals that at this juncture he cannot afford to pay for
service of process. Therefore, pursuant to 28 U.S.C. § 1915(d), service of process shall be made
at government expense. The Clerk of Court shall prepare for Defendant Funk: (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 Defendant’s place of employment as identified by Plaintiff.
If Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk

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within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect
formal service on Defendant, and the Court will require Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
If Defendant no longer can be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with Defendant’s current work address, or, if not known,
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 Defendant (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
true and correct copy of the document was served on Defendant 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.
Defendant Funk is 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 shall be REFERRED to United States Magistrate Judge Philip
M. Frazier for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs

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under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis may have 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).
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 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).
Finally, the Clerk of Court is DIRECTED to have the record reflect that Plaintiff’s last
name is spelled “Karmatzis.
IT IS SO ORDERED.
DATED: October 30, 2013
s/J. Phil Gilbert
United States District Judge

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