Cardenas-Uriarte v. USA et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. See attached order for details. Signed by Judge J. Phil Gilbert on 7/23/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CIPRIANO CARDENAS-URIARTE,
No. 81361-208,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
CHARLES E. SAMUELS,
JEFFREY S. WALTON,
ROBIN BRYSON,
C/O HOWARD, and
MICHAEL WINKLEMEIER,
Defendants.

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Case No. 014-cv-00747-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Cipriano Cardenas-Uriarte, an inmate in the custody of the Bureau of Prisons,
housed at USP-Marion, brings suit under Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346,
2671–2680, the Rehabilitation Act, 29 U.S.C. § 701, et seq., and the Eighth Amendment.1
Plaintiff, who has been affected by polio since childhood, wears leg braces and currently uses
crutches to ambulate. He alleges multiple incidents of negligence, deliberate indifference and
the denial of access to government programs, all related to his disability.
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.
1

Although Plaintiff cites the Eighth Amendment, the Court’s jurisdiction for such a
constitutional claim stems from to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
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(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.
The Complaint
According to the complaint, since 2012 Plaintiff has been unable to ambulate without the
aid of crutches. Before arriving at USP-Marion (“Marion”) in July 2013, other federal
correctional institutions had permitted him to be housed in first-floor cells. Upon arrival at
Marion, Unit Manager Robin Bryson authorized Plaintiff to be placed in a first-floor cell, but
later initiated or approved Plaintiff being moved to a second-floor cell (cell 232). Plaintiff’s
counselor and case manager did not respond to requests to move Plaintiff back to a first-floor
cell. Eventually Plaintiff was moved, but not before he had to endure the difficulty of navigating
the stairs with his crutches.
In December 2013, Plaintiff was moved to another unit and housed in a second-floor cell.
Plaintiff contends that the move was either initiated or approved by Unit Manager Bryson. Days
later, while trying to negotiate the stairway to his cell, Plaintiff fell down 14 stairs, injuring his
neck, back, hips and left leg, requiring a trip to the emergency room of a local hospital.
When Plaintiff returned from the hospital, C/O Howard elected to wheel Plaintiff’s
wheelchair up a steep ramp into the prison, rather than using another available ramp that had a
gentler slope. C/O Howard took a running start toward the steep ramp, only to dump Plaintiff
out of the wheelchair. Because he was handcuffed, Plaintiff was unable to break his fall and he
sustained injuries to his face, hands, back and leg.
Health Services Administrator Winklemeier evaluated Plaintiff after the wheelchair
incident. Plaintiff explained that it was painful and difficult for him to use crutches, and that
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doctors at the hospital had just diagnosed Plaintiff with a spinal deformity. Winklemeier issued
Plaintiff a wheelchair, but only for three days. Consequently, Plaintiff still must use crutches,
which is causing him excruciating pain. The pain and difficulty of using crutches restricts
Plaintiff’s access to meals because he cannot carry his tray and other inmates are not always
willing to help. Similarly, he cannot stay on his unit and use the microwave because he cannot
carry his food. He also limits using the shower due to the danger of his crutches slipping on the
wet floor. Plaintiff further contends that because using crutches is excruciatingly painful, his
access to recreational, educational and religious programs has been reduced. Mr. Winklemeier
has refused requests for a wheelchair, and for a referral to a specialist or physical therapist.
According to the complaint, Warden Jeffrey S. Walton is aware of Plaintiff’s situation by
way of emails and administrative grievances. Walton has failed to intervene, asserting that
Plaintiff’s medical condition does not necessitate using a wheelchair.
It appears that Plaintiff is currently housed in a first-floor cell, but he asserts that he
“remains vulnerable to being placed in an upper-floor cell again.” (Doc. 1, p. 8).
The complaint presents the following seven claims:
Count 1: The United States of America, by and through its employees,
negligently caused Plaintiff to fall down the stairs, in violation of
the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671–2680;
Count 2: The United States of America, by and through its employees,
negligently caused Plaintiff to be dumped out of a wheelchair, in
violation of the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671–
2680;
Count 3: Unit Manager Robin Bryson, on multiple occasions, initiated or
approved Plaintiff’s placement in an upper-floor cell, in violation
of the Eighth Amendment;

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Count 4: C/O Howard, ignoring an obvious risk, attempted to run
Plaintiff’s wheelchair up a steep ramp, resulting in a handcuffed
Plaintiff being dumped from the wheelchair, in violation of the
Eighth Amendment;
Count 5: Warden Jeffrey S. Walton and Health Services Administrator
Michael Winklemeier have refused to authorize Plaintiff to use a
wheelchair and have provided only “perfunctory” medical care, in
violation of the Eighth Amendment;
Count 6: The Bureau of Prisons, by and through Director Charles E.
Samuels, has refused to permit Plaintiff to use a wheelchair,
thereby impeding his access to meals, showers, and recreational,
educational and religious programs, all in violation of the
Rehabilitation Act, 29 U.S.C. § 794 et seq.; and
Count 7: The Bureau of Prisons, by and through Director Charles E.
Samuels, has refused to ensure that in the future Plaintiff will be
housed in a first-floor cell and assigned to a bottom bunk, in
violation of the Rehabilitation Act, 29 U.S.C. § 794 et seq.
The complaint further specifies that Plaintiff seeks compensatory damages under the
FTCA, nominal and compensatory damages for the Eighth Amendment/Bivens claims, and
general declaratory and injunctive relief (see Doc. 1, p. 10).
Discussion
Counts 1 and 2
Federal prisoners may bring suit under the FTCA for injuries sustained through the
negligent acts of prison officials. Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003)
(discussing United States v. Muniz, 374 U.S. 150 (1963)). The FTCA is the exclusive avenue for
securing monetary damages for the negligence of government employees. See 28 U.S.C. §
1346(b)(1); Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2013). The United States is the
only proper defendant to an FTCA case. See 28U.S.C. § 2679(b).

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An FTCA claim may be brought for:
[P]ersonal injury ... caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.
Palay, 349 F.3d at 425 (citing 28 U.S.C. § 1346(b)(1)).
Under Illinois law, a plaintiff states a claim for negligence if he alleges “facts
establishing the existence of a duty of care owed by the defendants to the plaintiff, a breach of
that duty, and an injury proximately caused by that breach.” Thompson v. Gordon, 948 N.E.2d
39, 45 (Ill. 2011). The Bureau of Prisons has a statutory duty to care for prisoners in its custody
(18 U.S.C. § 4042(a)(2)). Thus, as a general matter, the allegations in the compliant support the
FTCA claims alleged in Counts 1 and 2. Counts 1 and 2 shall proceed against the United States
for compensatory damages.
Counts 3, 4 and 5
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), recognized an implied cause of action for constitutional violations by federal officials,
permitting federal court actions for equitable relief, including monetary damages. A Bivens
claim and an FTCA claim are not mutually exclusive. See Engel v. Buchan, 710 F.3d 698, 703
(7th Cir. 2013).
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). Eighth Amendment protection extends to conditions of confinement that pose a
substantial risk of serious harm, including health and safety. See Estate of Miller, ex rel.
Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012); see also Rhodes v. Chapman, 452 U.S. 337,

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346 (1981). A prison official may be liable “only if he knows that inmates face a substantial risk
of serious harm and disregards that risk by failing to take reasonable measures to abate it.”
Farmer v. Brennan, 511 U.S. 825, 847 (1994). Proving deliberate indifference requires more
than a showing of negligent or even grossly negligent behavior.

Id. at 835. Rather, the

corrections official must have acted with the equivalent of criminal recklessness. Id. at 836–37.
Count 3 regarding Plaintiff’s placement in an upper-floor cell states a colorable
constitutional claim that cannot be dismissed at this time. Similarly, Count 4 states a viable
constitutional claim regarding the incident where Plaintiff was dumped from his wheelchair.
Count 5, as drafted, fails to state a colorable constitutional claim regarding the denial of a
wheelchair and merely offering “perfunctory” medical care. Although there are allegations
reflecting personal involvement on the part of Warden Walton and Health Services
Administrator Winklemeir, the complaint does not indicate that a wheelchair is medically
necessary, or that not having a wheelchair has deprived him of a necessity of life. Jaros v.
Illinois Dept. of Corrections, 684 F.3d 667 (7th Cir. 2012), regarding the use of prison facilities
being made more difficult for physically disabled inmates is instructive relative to Count 5.
Regarding Eighth Amendment protections, in Jaros it is noted that the Eighth Amendment is not
violated unless the inmate is deprived of the “‘minimal civilized measure of life’s necessities;’”
merely making those things more difficult does not constitute and Eighth Amendment violation.
Jaros, 684 F.3d at 670-71 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (other
citations omitted). Furthermore, the constitution does not require more than “perfunctory”–
automatic, impersonal—medical care. Count 5 fails to meet the Twombly pleading standard and
will, therefore, be dismissed without prejudice.

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Count 6
Count 6 alleges that the Bureau of Prisons has refused to allow Plaintiff to use a
wheelchair, thereby impeding his access to meals, showers, and recreational, educational and
religious programs. Count 6 is premised upon the Rehabilitation Act, 29 U.S.C. § 701, et seq.
The Rehabilitation Act prohibits discrimination by entities receiving federal funding,
against qualified individuals on account of their disability. 29 U.S.C. § 794A incorporates 42
U.S.C. § 2000e–5, which permits a private right of action. Director Samuels, in his official
capacity, is a proper defendant under the Act. See 42 U.S.C. § 12131(1)(b); Jaros, 684 F.3d at
670 n. 2 (individual capacity claims are not available; the proper defendant is the agency or its
director (in his official capacity)).
The threshold question in a Rehabilitation Act claim is whether the plaintiff is a
“qualified individual with a disability” who has suffered discrimination on account of that
disabling condition.

A “disability” is defined as “a physical or mental impairment that

substantially limits one or more major life activities[,]” such as caring for oneself, seeing,
hearing, walking, communicating, thinking, or working. 42 U.S.C. § 12102(1)(A); (2)(A); see
also 29 U.S.C. § 794(d) (adopting the ADA standards for a Rehabilitation Act claim). A refusal
to make a reasonable accommodation, resulting in an inmate being kept from meals and showers
on the same basis as other inmates states a viable Rehabilitation Act claim. See Jaros v. Illinois
Dept. of Corrections, 684 F.3d 667, 672 (7th Cir. 2012). Therefore, Count 6 shall proceed
relative to Plaintiff’s request for declaratory and injunctive relief.

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Count 7
In Count 7 it is alleged that the Bureau of Prisons, by and through Director Samuels, has
refused to ensure that in the future Plaintiff will be housed in a first-floor cell and assigned to a
bottom bunk. Plaintiff contends that this is a violation of the Rehabilitation Act, 29 U.S.C. §
701, et seq. As drafted, Count 7 is a prayer for prospective relief based upon circumstances that
may or may not arise in the future.
The Court’s authority is limited to “cases” and “controversies” whereby the Court can
redress or prevent actual or imminently threatened injury.

U.S.CONST. art. III, § 2, cl. 1;

Clapper v. Amnesty Int'l USA, __U.S. __, 133 S.Ct. 1138, 1146 (2013); Summers v. Earth Island
Inst., 555 U.S. 488, 492 (2009); Horne v. Flores, 557 U.S. 433, 445 (2009).

See also

Korte v. Sebelius, 735 F.3d 654, 667 (7th Cir. 2013). Count 7 is nothing more than a prayer for
prospective relief, not specifically grounded in a case or controversy upon which the Court can
act. See generally David B. v. McDonald, 116 F.3d 1146, 1148 (7th Cir. 1997) (prospective
relief may be granted, but it must stem from a case or controversy). Count 7, therefore, will be
dismissed without prejudice.
With that said, reading the complaint as a whole and taking Plaintiff’s pro se status into
account, the Court perceives that Plaintiff is attempting to secure prospective injunctive relief for
the conditions underlying Counts 1, 3 and 6—his difficulty using crutches in his present
condition, and using crutches to navigate stairs in any circumstance. The Court will leave it to
Plaintiff to decide whether he wants to amend one of his other claims to include a prayer for
injunctive relief, or whether he wants to attempt to re-plead a Rehabilitation Act claim.

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Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNTS 5 and 7 are
DISMISSED without prejudice; accordingly, Defendants JEFFREY S. WALTON and
MICHAEL WINKLEMEIR are DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNTS 1-4 and 6 of the complaint shall
PROCEED.
The Clerk of Court shall prepare for Defendants UNITED STATES OF AMERICA,
CHARLES E. SAMUELS (in his official capacity), ROBIN BRYSON (in her individual
capacity) and C/O BRYSON (in his individual capacity): (1) Form 5 (Notice of a Lawsuit and
Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).
With respect to UNITED STATES OF AMERICA and CHARLES E. SAMUELS,
pursuant to Federal Rules of Civil Procedure 4(i)(1) and (2), the Clerk shall (1) deliver to or send
by registered or certified mail addressed to the civil-process clerk at the office of the United
States Attorney for the Southern District of Illinois a copy of the summons, the complaint, and
this Memorandum and Order; (2) send by registered or certified mail to the Attorney General of
the United States at Washington, D.C., a copy of the summons, the complaint, and this
Memorandum and Order; and (3) send a copy of the summons, the complaint, and this
Memorandum and Order by registered or certified mail to Samuels at the Bureau of Prisons at
Washington, D.C. In addition, and with respect to ROBIN BRYSON and C/O BRYSON,
pursuant to Federal Rule of Civil Procedure 4(i)(3), the Clerk shall also serve each individual
using the procedures set forth in Federal Rule of Civil Procedure 4(e).
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.

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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.
Each Defendant 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 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 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).
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

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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: July 23, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE

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