Gillum v. Watson et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. IT IS FURTHER ORDERED that COUNT 3 against ARAMARK FOOD SERVICES, INC., and NURSE DEBRA HALEY is SEVERED into a new case. Signed by Judge J. Phil Gilbert on 6/30/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CORTEZ D. GILLUM,
Plaintiff,
vs.
RICHARD WATSON,
THOMAS T. TRICE,
DEBRA HALEY,
WEXFORD MEDICAL SERVICES, INC.
PHIL MCLAURIN,
MARY ROBINSON-DAVIS, and
ARAMARK FOOD SERVICES, INC.,
Defendants.

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Case No. 14-cv-00546-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Cortez D. Gillum, an inmate currently housed in Menard Correctional Center,
brings this action for deprivations of his constitutional rights pursuant to the Federal Tort Claims
Act, (“FTCA”), 28 U.S.C. §§ 1346, 2671–2680, and 42 U.S.C. § 1983, based on the conditions
of his confinement and incidents that occurred while he was housed in the St. Clair County Jail.
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). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). 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.

At this juncture, the factual

allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
On February 19, 2013, at the direction of Captain Thomas T. Trice, Plaintiff and the other
inmates in Cell Block D of the Jail, were taken into the dayroom and told that they would remain
there on lockdown until gang members were identified. Plaintiff and the others remained in the
dayroom for approximately 24 hours without water, and with no blankets or mats to sleep on.
The inmates were strip searched and eventually returned to their cells, where they were placed on
lockdown for five more days. Captain Trice then appeared at Plaintiff’s cell with other officers
and had Plaintiff removed and placed in administrative detention.
Captain Trice explained that Plaintiff was being placed in the maximum security unit on
administrative detention because he was determined to be a high ranking member of the Vice
Lords. Plaintiff remained in administrative detention for 15 months—locked in his cell for 23
hours per day and never being allowed to go to the gym.

As a result, Plaintiff’s health

deteriorated and he developed diabetes. Requests for release were denied by Captain Trice,
despite Plaintiff’s record of good behavior. Plaintiff asserts that his placement in segregation
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was due to a St. Clair County Jail policy and custom of discriminating against black gang
members and because of his conviction for attempting to murder a police officer.
In May 2013, Plaintiff contracted a bacterial stomach infection, which he contends his
doctor and nurse attributed to digesting contaminated food. The contamination purportedly arose
from rat feces, and the unsanitary conditions of the kitchen and unsanitary food preparation—all
within the purview of Aramark Food Services, Inc., and Food Service Director Mary RobinsonDavis. Plaintiff’s infection went undiagnosed for approximately two months, during which he
lost 53 pounds and suffered from diarrhea, ulcers and acid reflux.
Plaintiff’s stomach remained sensitive to certain foods. Nurse Debra Haley informed
Plaintiff that he could only be given a special diet if Captain Trice and Supervisor Phil McLaurin
approved.

Plaintiff’s multiple requests were ignored.

Trice and Food Service Director

Robinson-Davis eventually questioned Plaintiff about his dietary needs, but after discovering that
Plaintiff had been ordering food items that he said he could not eat–purportedly to trade for
commissary items he could eat—he was not given a special diet. Consequently, Plaintiff’s
medical condition deteriorated, his pain increased, and he had to be prescribed stronger
medication.
Plaintiff, who had long taken Depakote for epilepsy, was prescribed Thorazine for
Schizophrenia.

Plaintiff began experiencing adverse side effects, so a doctor ordered the

Thorazine prescription be suspended. Nurse Haley suspended all of Plaintiff’s medications,
including the medications he needed for his stomach ailments. A few days later, a doctor caught
the mistake and ordered blood tests to check on Plaintiff’s condition. At that point it was
discovered that Plaintiff had diabetes, a side effect of the Depakote. Plaintiff contends that had
his blood been tested every three months, as it should have been to check on the Depakote side

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effects, he would not have developed diabetes. Plaintiff lays blame upon Nurse Haley and
Wexford Medical Services, Inc.
In December 2012, Plaintiff was experiencing severe itching and a rash, which he
thought was lice—scabies. Nurse Haley looked at Plaintiff’s skin and concluded that Plaintiff
did not have scabies. Nurse Haley recommended that Plaintiff buy some cortisone cream. The
rash and itching worsened over the following month. A doctor eventually diagnosed as Plaintiff
as having a lice infestation and scabies. Plaintiff contends Nurse Haley and Wexford Medical
Services, Inc., “committed medial mistreatment” (Doc. 1, p. 12).
All of the aforementioned incidents are attributed to Sheriff Richard Watson in his
official capacity. Plaintiff contends that Sheriff Watson knowingly condoned a custom, policy
and practice of discriminating against black gang members, and discriminating against Plaintiff
due to Plaintiff having been convicted of attempting to murder a police officer. It is also alleged
that Sheriff Watson negligently supervised Jail staff.
Plaintiff prays for compensatory and punitive damages.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into seven 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: Captain Trice ordered Plaintiff detained in the day room for
approximately 24 hours without water, in violation of the Eighth
Amendment;
Count 2: Captain Trice placed Plaintiff in administrative detention on 23hour lockdown, for 15 months due to Plaintiff being a black gang
member, and due to his conviction for attempting to murder a
police officer, all in violation of the Equal Protection Clause of the
Fourteenth Amendment and the Eighth Amendment;

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The

Count 3: Food Service Director Robinson-Davis and Aramark Food
Services, Inc., failed to ensure that the food preparation and the
food served to Plaintiff was sanitary, in violation of the Eighth
Amendment;
Count 4: Captain Trice, Supervisor McLaurin and Food Service Director
Robinson-Davis denied Plaintiff a special diet in violation of the
Eighth Amendment;
Count 5: Nurse Haley and Wexford Medical Services, Inc., discontinued all
of Plaintiff’s medications and failed to regularly test his blood, all
in violation of the Eighth Amendment;
Count 6: Nurse Haley and Wexford Medical Services, Inc., failed to
diagnose Plaintiff with scabies, in violation of the Eighth
Amendment; and
Count 7: Sheriff Watson negligently supervised Jail staff, and knowingly
condoned constitutional violations against Plaintiff, a custom,
policy and practice of discriminating against black gang members,
and discriminating against Plaintiff due to the nature of his
conviction, all in violation of the Eighth Amendment and Equal
Protection Clause of the Fourteenth Amendment.
Although Plaintiff was being held in a county jail, the complaint indicates that Plaintiff
had been convicted of attempting to murder a police officer. Therefore, the Eighth Amendment
has been cited, as opposed to the Fourteenth Amendment standard applicable to detainees.
Claims concerning the conditions of confinement of civil detainees are assessed
under the due process clause of the Fourteenth Amendment. See West v.
Schwebke, 333 F.3d 745, 747–48 (7th Cir. 2003). Civil detainees “are entitled to
more considerate treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish.” Youngberg v. Romeo, 457
U.S. 307, 321–22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). But the Supreme Court
has not determined how much additional protection civil detainees are entitled to
beyond the protections afforded by the Eighth Amendment bar on cruel and
unusual punishment.
McGee v. Adams, 721 F.3d 474, 480 (7th Cir. 2013); see also Currie v. Chhabra, 728 F.3d 626,
629 (7th Cir. 2013) (regarding criminal detainees).

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Discussion
As a preliminary matter, it is noted that the checkbox on the complaint form for a Federal
Tort Claims Act (“FTCA”) claim under 28 U.S.C. §§ 1346, 2671–2680 was marked. Because the
FTCA is applicable only if action by a federal agent is at issue, any intended FTCA claims that
Plaintiff intended will be dismissed with prejudice.
Count 1
Count 1 alleges that Captain Trice ordered that Plaintiff and others be held in the day
room for 24 hours without water. 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 Cir. 2010). It is well-settled, however, that conditions which
are temporary and do not result in physical harm are not actionable under the Eighth
Amendment. See Johnson v. Pelker, 891 F.2d 136, 138-39 (7th Cir.1989). Therefore, Count 1
fails to state a viable claim and will be dismissed without prejudice.
Count 2
Count 2, regarding Captain Trice placing Plaintiff in administrative detention, where
Plaintiff did not have room to exercise and he was never permitted to use the gym, states a
colorable conditions of confinement claim under the Eighth Amendment.
Insofar as it is alleged that Trice acted because Plaintiff was a gang member, gang
affiliation cannot form the basis of an Equal Protection Clause claim. See Harbin-Bey v. Rutter,
420 F.3d 571, 576 (6th Cir. 2005).
As pleaded, the complaint does not adequately frame an Equal Protection claim premised
upon race, either.
The gravamen of equal protection lies not in the fact of deprivation of a right but
in the invidious classification of persons aggrieved by the state’s action. A
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plaintiff must demonstrate intentional or purposeful discrimination to show an
equal protection violation. Discriminatory purpose, however, implies more than
intent as volition or intent as awareness of consequences. It implies that a
decision[-]maker singled out a particular group for disparate treatment and
selected his course of action at least in part for the purpose of causing its adverse
effects on the identifiable group.
Nabozny v. Podlesny, 92 F.3d 446, 453-54 (7th Cir. 1996) (quoting Shango v. Jurich, 681 F.2d 1091,
1104 (7th Cir. 1982)). There is also a second type of equal protection violation, a so-called
“class-of-one” claim. Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591, 601 (2008), and
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), make clear that a class-of-one equal
protection claim can succeed only if it is pleaded and proven that (1) the plaintiff has been
intentionally treated differently from others similarly situated, and (2) there is no rational basis
for different treatment. As pleaded, the equal protection aspect of Count 2 based on race does
not meet the Twombly pleading standard—no more than a conclusory statement is offered.
Similarly, the claim that Trice was motivated by Plaintiff’s conviction for attempted
murder of a police officer is nothing more than a conclusory statement.
Therefore, the conditions of confinement aspect of Count 2 can proceed, but the equal
protection aspects of Count 2 must be dismissed without prejudice.
Count 3
Count 3 alleges that Aramark Food Services, Inc., and Food Service Director RobinsonDavis failed to supervise the kitchen and food preparation, leading to Plaintiff being served
contaminated food. This states a colorable Eighth Amendment claim.
Count 4
The allegations in Count 4 that Captain Trice, Supervisor Phil McLaurin and Food
Service Director Robinson-Davis denied Plaintiff a special diet state a colorable Eighth
Amendment claim.
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Count 5
In Count 5 it is alleged that Nurse Haley and Wexford Medical Services, Inc.,
discontinued all of Plaintiff’s medications and failed to regularly test his blood, all in violation of
the Eighth Amendment. Prison officials can 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).
The complaint lacks the factual underpinnings necessary under the Twombly standard to
suggest that Nurse Haley acted with deliberate indifference. Negligence, even gross negligence,
is insufficient (Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007)), as is medical malpractice
(Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007)).

Therefore, the claim against Nurse

Haley will be dismissed without prejudice.
The allegation that Wexford Medical Services was involved is conclusory and not
supported by any factual allegations sufficient to satisfy the Twombly standard. Therefore,
Wexford Health Services, Inc., also will be dismissed from Count 5, without prejudice.
Consequently, Count 5 will be dismissed without prejudice.
Count 6
Count 6 alleges that Nurse Haley and Wexford Medical Services, Inc., failed to diagnose
Plaintiff with scabies, in violation of the Eighth Amendment. As with Count 5, the complaint
does not contain the minimum factual support for the assertion that Nurse Haley acted with
deliberate indifference, and negligence, even gross negligence, is insufficient (Guzman v.

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Sheahan, 495 F.3d 852, 857 (7th Cir. 2007)), as is medical malpractice (Edwards v. Snyder, 478
F.3d 827, 831 (7th Cir. 2007)). Furthermore, the allegation that Wexford Medical Services was
involved is conclusory and not supported by any factual allegations sufficient to satisfy the
Twombly standard. Therefore, Count 6 will be dismissed without prejudice.
Count 7
Count 7 alleges that Sheriff Watson negligently supervised Jail staff, and knowingly
condoned constitutional violations against Plaintiff, a custom, policy and practice of
discriminating against black gang members, and discriminating against Plaintiff due to the nature
of his conviction, all in violation of the Eighth Amendment and Equal Protection Clause of the
Fourteenth Amendment.
A defendant can never be held liable under Section 1983 for negligence. Daniels v.
Williams, 474 U.S. 327, 328 (1986). Therefore, the negligent supervision aspect of Count 7 must
be dismissed.
The aspects of Count 7 regarding Sheriff Watson knowingly condoning constitutional
violations against Plaintiff lacks the minimal factual foundation required under the Twombly
standard.
Finally, the allegations that Watson somehow sanctioned a custom, policy and practice of
discriminating against black gang members, and discriminating against Plaintiff due to the nature
of his conviction, fail for the same reasons detailed relative to Count 2.
Count 7 will, therefore, be dismissed without 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. At this juncture, the

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only viable claims are: Count 2 against Captain Trice regarding the conditions of confinement in
administrative detention; Count 3 against Aramark Food Services and Food Service Director
Robinson-Davis regarding unsanitary food and food preparation; and Count 4 against Captain
Trice, Food Service Director Robinson-Davis Supervisor McLaurin regarding the denial of a
special diet. Counts 2 and 4 can proceed together because they are both against Captain Trice.
Count 3 must be severed because it is unrelated to Counts 2 and 4.
Plaintiff will be given an opportunity to confirm that he wants to proceed with Count 3,
which will require the payment of a separate filing fee (or the filing of another motion for leave
to proceed in forma pauperis, as the case may be). If Plaintiff elects not to proceed, Count 3 will
be dismissed without prejudice and no filing fee will be assessed.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, any and all Federal Tort Claims
Act claims under 28 U.S.C. §§ 1346, 2671–2680 are DISMISSED with prejudice.
IT IS FURTHER ORDERED that COUNTS 1, 5, 6 and 7 are DISMISSED without
prejudice; accordingly, Defendants WEXFORD MEDICAL SERVICES, INC., NURSE
DEBRA HALEY, and SHERIFF RICHARD WATSON are DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Fourteenth Amendment Equal Protection claim
within COUNT 2 is DISMISSED without prejudice; the Eighth Amendment claim in Count 2
shall PROCEED against CAPTAIN THOMAS T. TRICE. COUNT 4 shall also PROCEED
against CAPTAIN THOMAS T. TRICE, SUPERVISOR MARY ROBINSON-DAVIS and
SUPERINTENDENT PHIL MCLAURIN.

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IT IS FURTHER ORDERED that COUNT 3 against ARAMARK FOOD
SERVICES, INC., and NURSE DEBRA HALEY is SEVERED into a new case presenting the
following claim:
Food Service Director Robinson-Davis and Aramark Food Services, Inc.,
failed to ensure that the food preparation and the food served to Plaintiff was
sanitary, in violation of the Eighth Amendment.
On or before July 14, 2014, Plaintiff shall either (1) confirm in writing that he desires to proceed
with the new case and either pay the $400.00 filing fee ($350.00 if pauper status is granted), or
move for leave to proceed in forma pauperis; or (2) move to voluntarily dismiss the new case. If
Plaintiff moves to voluntarily dismiss the new case, no filing fee will be assessed.
The Clerk of Court shall have the record reflect that ARAMARK FOOD SERVICES,
INC., and NURSE DEBRA HALEY are TERMINATED as defendants in this action.
Insofar as Counts 2 and 4 are proceeding in this case, the Clerk of Court shall prepare for
Defendants CAPTAIN THOMAS T. TRICE, SUPERVISOR MARY ROBINSON-DAVIS
and SUPERINTENDENT PHIL MCLAURIN: (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

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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
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 or further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States Magistrate 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
under Section 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

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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 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: June 30, 2014
s/J. Phil Gilbert
United States District Judge

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