Ward v. Quinn et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 8/8/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMIEN WARD,
No. R59244,
Plaintiff,
vs.
PATRICK QUINN,
SALVADOR GODINEZ,
MICHAEL P. ATCHISON,
MARVIN BARTENS,
CHARLES COMPTON,
DUSTIN HARMON,
SGT. EUADEE,
WEXFORD HAELTH SOURCES, INC.
C/O COLLINS, and
UNKNOWN PARTIES,
Defendants.

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Case No. 14-cv-00808-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Damien Ward, an inmate in Pontiac Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on the alleged use of
excessive force and the denial of medical and psychiatric care at Menard Correctional Center.
Plaintiff also asserts claims under state law and multiple international treaties.
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–
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(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.
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
The complaint focuses on specific events occurring in October 2012. On October 18,
Plaintiff, who is bipolar, was in mental distress but was denied his medication and a “crisis team”
was not summoned. As the situation devolved, the water to Plaintiff’s cell was turned off, and
his television was broken when staff entered his cell. The tension between Plaintiff and staff
grew and the next day the Tactical Team entered Plaintiff’s cell, pepper sprayed him and then,
while Plaintiff was cuffed, physically assaulted him. Although the Tactical Team did take
Plaintiff to the healthcare unit, medical personnel, at the behest of the Tactical Team, did not
properly record Plaintiff’s injuries or the attendant circumstances, and he was denied all care.
The aforementioned events are purportedly examples of longstanding policies, practices and
customs at Menard Correctional Center (“Menard”) advocating the use of excessive force and
the denial of care for serious physical and psychiatric injuries.
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Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into nine 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: Governor Patrick Quinn, Illinois Department of Corrections
Director Salvador Godinez, and Menard Warden Michael P.
Atchison had a policy, practice or custom permitting excessive
force to be used against inmates at Menard, in violation of the
Eighth Amendment;
Count 2: C/O Marvin Bartens and a nurse and medical technician denied
Plaintiff medication and a “crisis team,” in violation of the Eighth
Amendment, the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and/or the Rehabilitation Act, 29 U.S.C. §
701, et seq.;
Count 3: A nurse and medical technician retaliated against Plaintiff in
violation of the First Amendment when they intentionally gave
him the wrong medication;
Count 4: C/O Marvin Bartens and Sgt. Euadee retaliated against Plaintiff in
violation of the First Amendment when they turned off the water
to his cell and broke his television;
Count 5: All “Menard Defendants” and Wexford Health Sources, Inc., had
a policy, practice or custom of deliberate indifference to inmates’
serious medical needs, in violation of the Eighth Amendment;
Count 6: C/O Marvin Bartens, C/O Charles Compton, C/O Dustin Harmon,
C/O Collins and three additional members of the Tactical Team,
individually and/or in conspiracy, used excessive force against
Plaintiff in violation of the Eighth Amendment;
Count 7: C/O Marvin Bartens, C/O Charles Compton, C/O Dustin Harmon,
C/O Collins, three additional members of the Tactical Team, a
nurse and medical technician, individually and/or in conspiracy,
denied Plaintiff medical care in violation of the Eighth
Amendment;
Count 8: All Defendants violated Plaintiff’s rights under United Nations
treaties and agreements; and

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The

Count 9: All Defendants violated the Illinois constitution, committed assault
and battery, and intentionally inflicted emotional distress upon
Plaintiff, in violation of Illinois law.
Plaintiff prays for declaratory judgment, compensatory and punitive damages, and
unspecified injunctive relief.
Discussion
Count 1
Count 1 alleges that Governor Patrick Quinn, Illinois Department of Corrections Director
Salvador Godinez, and Menard Warden Michael P. Atchison had a policy, practice or custom
permitting excessive force to be used against inmates at Menard, in violation of the Eighth
Amendment.
Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus, “to be liable under [Section] 1983, an individual defendant must have caused or
participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005) (citations omitted). Plaintiff references and uses language associated with Monell
v. Dept. of Social Services, 436 U.S. 658 (1978), the landmark decision recognizing that a local
municipality may face liability under Section 1983 for the constitutional torts of its employees if
the government’s own policy of custom caused the violation. Although Monell is inapplicable in
this situation, given Plaintiff’s pro se status, Plaintiff’s claim will be construed liberally.
The doctrine of respondeat superior—supervisor liability—is not applicable to Section
1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill.
State Police, 251 F.3d 612, 651 (7th Cir. 2001)). “[S]upervisors must know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They

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must in other words act either knowingly or with deliberate, reckless indifference.” Backes v.
Village of Peoria Heights, Illinois, 662 F.3d 866, 870 (7th Cir. 2011).
The complaint describes Quinn, Godinez and Atchison as being supervisors bearing
ultimate responsibility for all policies, practices and customs within their respective realms of
responsibility. Without more, these allegations do not go beyond mere supervisory liability; a
possible claim is presented, but not a plausible claim. Therefore, Count 1 fails under the
Twombly pleading standard and will be dismissed without prejudice.
Count 2
Count 2 alleges that C/O Marvin Bartens and a nurse and medical technician denied
Plaintiff medication and a “crisis team” in violation of the Eighth Amendment, the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and/or the Rehabilitation Act, 29
U.S.C. § 701, et seq.
The ADA and Rehabilitation Act prohibit discrimination against qualified individuals
because of their physical or mental disability, including a failure to accommodate a disability.
Although the complaint asserts that Plaintiff suffers from a disability—mental illness—it is not
alleged that he was denied medication and a “crisis team” because of his disability. See Jaros v.
Illinois Dept. of Corrections, 684 F.3d 667, 672 (7th Cir. 2012).

Furthermore, individual

employees of the Illinois Department of Corrections cannot be sued under the ADA or
Rehabilitation Act. Jaros, 684 F.3d at 670. The proper defendant to Count 2 is the relevant state
department or agency. See 2 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).

For these reasons, the ADA and Rehabilitation Act claims in Count 2 will be

dismissed without prejudice.

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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). Prison officials can also 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). “Deliberate indifference cannot rest on negligent actions or
inactions, but must instead rest on reckless indifference to the plight of an inmate.” Cavalieri v.
Shepard, 321 F.3d 616, 626 (7th Cir. 2003). Count 2 states a colorable Eighth Amendment
claim against C/O Bartens and the unidentified nurse and medical technician—that aspect of
Count 2 shall proceed. However, the unidentified defendants will have to be named in an
amended complaint before liability can attach.
Count 3
It is alleged in Count 3 that a nurse and medical technician retaliated against Plaintiff in
violation of the First Amendment when they intentionally gave him the wrong medication on
October 19, in retaliation for Plaintiff complaining to Sgt. Euadee.
“An act taken in retaliation for the exercise of a constitutionally protected right violates
the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). Although it appears that
Plaintiff only orally complained to Sgt. Euadee, such complaints may be adequate to trigger First
Amendment protection from retaliation. See Pearson v. Welborn, 471 F.3d 732, 738 (7th Cir.
2006). Therefore, Count 3 states a colorable constitutional claim. Of course, Plaintiff will

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eventually have to identify the unknown nurse and medical technician and amend the complaint
accordingly.
Count 4
In Count 4, it is alleged that C/O Marvin Bartens and Sgt. Euadee retaliated against
Plaintiff in violation of the First Amendment when they turned off the water to his cell and broke
his television. Like Count 3, Count 4 states a colorable claim and shall proceed against C/O
Marvin Bartens and Sgt. Euadee.
Count 5
Count 5 broadly alleges that all “Menard Defendants,” along with Wexford Health
Sources, Inc., had a policy, practice or custom of deliberate indifference to inmates’ serious
medical needs, in violation of the Eighth Amendment. As discussed relative to Count 1, a
Monell-style claim is inappropriate against the state actors; Monell applies to municipal
corporations. Wexford Health Sources, a corporate defendant, may face liability under a Monellstyle theory. See Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 796 (7th Cir. 2014). In
any event, as pleaded Count 5 is too vague and conclusory to satisfy the Twombly pleading
standard and will be dismissed without prejudice.
Count 6
Count 6 stems from the October 19 incident when the Tactical Team—C/O Marvin
Bartens, C/O Charles Compton, C/O Dustin Harmon, C/O Collins and three additional
members—used pepper spray against Plaintiff and then assaulted him. Count 6 states a colorable
Eighth Amendment excessive force claim against the defendants, individually and/or in
conspiracy; therefore, Count 6 shall proceed. The identities of the unknown members of the
Tactical Team will ultimately have to be established and the complaint amended accordingly

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Count 7
Count 7 alleges that C/O Marvin Bartens, C/O Charles Compton, C/O Dustin Harmon,
C/O Collins, three additional members of the Tactical Team, a nurse and medical technician,
individually and/or in conspiracy, denied Plaintiff medical care in violation of the Eighth
Amendment after the Tactical Team allegedly assaulted Plaintiff (see Count 6). Count 7 states a
colorable constitutional claim and shall proceed. Of course, Plaintiff will eventually have to
identify the nurse and medical technician involved and amend the complaint.
Count 8
Count 8 reflects Plaintiff’s assertion that the events discussed in the complaint violate
various United Nations treaties and agreements. The complaint does not specify which alleged
acts, by which defendants, violate which treaties and agreements. Moreover, none of the cited
treaties and agreements is actionable in federal court.
Section 1983 provides a cause of action based on “the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Treaties and
other commitments under international law are not always federally-enforceable law.

The

Supreme Court long ago explained that a treaty is “equivalent to an act of the legislature,” and
hence self-executing, when it “operates of itself without the aid of any legislative provision.”
Foster v. Neilson, 2 Pet. 253, 314-15, 7 L.Ed. 415 (1829). In contrast, “[treaty] stipulations are
not self-executing they can only be enforced pursuant to legislation to carry them into effect.”
Whitney v. Robertson, 124 U.S. 190, 194 (1888). Treaties “are not domestic law unless Congress
has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘selfexecuting’ and is ratified on these terms.” Igartua–De La Rosa v. United States, 417 F.3d 145,

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150 (5th Cir. 2005). See also Medellin v. Texas, 552 U.S. 491, 504-505 (2008) (reiterating the
principles of Foster and Whitney).
Putting aside any overlap with constitutional rights, the Court must determine whether
the treaties and international agreements cited by Plaintiff are federally enforceable.

The

Convention Against Torture does not provide for a civil cause of action. See Renkel v. United
States, 456 F.3d 640, 644-45 (6th Cir. 2006); see also 18 U.S.C. 2340A(a) (specifying that the
Convention applies to acts outside the United States). Similarly, the International Covenant on
Civil and Political Rights and the Universal Declaration of Human Rights are not federally
enforceable. See Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004). The United Nations’
Standard Minimum Rules for the Treatment of Prisoners does not create an independent cause of
action either. See Serra v. Lappin, 600 F.3d 1191, 1197 (9th Cir. 2010). The Court’s review of
the United Nations’ Basic Principles for the Treatment of Prisoners, Code of Conduct for Law
Enforcement Officials, and Principles for the Protection of All Persons Under Any Form of
Detention or Imprisonment does not reveal any self-executing language; nor has the Court
located any implementing legislation. Consequently, all of Plaintiff’s claims premised upon
treaties and international agreements—Count 8—will be dismissed with prejudice.
Count 9
Lastly, Count 9 reflects Plaintiff’s assertion that all of the defendants violated the Illinois
constitution, committed assault and battery, and intentionally inflicted emotional distress upon
Plaintiff, in violation of Illinois law. Plaintiff has not linked any of the alleged acts or any of the
defendants to these legal claims. Therefore, Count 9 and all of its state law claims will be
dismissed without prejudice.

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Unknown Defendants
The complaint fails to state claims against unidentified assistant wardens, correctional
officers and medical employees. Consequently, those unidentified defendants will be dismissed
without prejudice.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNTS 1, 5 and 9 are
DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNT 9 is DISMISSED with prejudice.
IT IS FURTHER ORDERED that the ADA and Rehabilitation Act claims within
COUNT 2 are DISMISSED without prejudice; the Eighth amendment claims within COUNT 2
shall PROCEED.
IT IS FURTHER ORDERED that COUNTS 3, 4, 6 and 7 shall otherwise PROCEED.
IT IS FURTHER ORDERED that Defendants PATRICK QUINN, SALVADORE
GODINEZ, MICHAEL P. ATCHISON, WEXFORD HEALTH SOURCES, INC., and
UNIDENTIFIED

ASSISTANT

WARDENS,

CORRECTIONAL

OFFICERS

and

MEDICAL EMPLOYEES are DISMISSED without prejudice;
IT IS FURTHER ORDERED that MARVIN BARTENS, CHARLES COMPTON,
DUSTIN HARMON, SGT. EUADEE, C/O COLLINS and UNKNOWN NURSES and
MEDICAL TECHNICIANS shall PROCEED as defendants.
The Clerk of Court shall prepare for Defendants MARVIN BARTENS, CHARLES
COMPTON, DUSTIN HARMON, SGT. EUADEE and C/O COLLINS: (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.
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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
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 Donald G. Wilkerson for further pre-trial proceedings, including consideration of
Plaintiff’s motion for counsel (Doc. 3).
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

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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
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: August 8, 2014

Digitally signed by Nancy J
Rosenstengel
Date: 2014.08.08 08:05:38
-05'00'

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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