Phelps v. Phillips et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge J. Phil Gilbert on 9/9/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEVIN PHELPS, # K-78191,
Plaintiff,
vs.
C/O PHILLIPS, WARDEN GAETZ,
and S. A. GODINEZ,
Defendants.

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Case No. 14-cv-00891-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Kevin Phelps, an inmate who is currently incarcerated at Lawrence Correctional
Center, brings this action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. based on an incident that occurred while he was
incarcerated at Pinckneyville Correctional Center. (Doc. 1). Plaintiff is paraplegic and confined
to a wheelchair. Plaintiff claims that Defendants failed to protect him against an attack by
another inmate, despite prior knowledge that an assault was likely. Plaintiff seeks monetary
damages from Defendants.
Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.

Under § 1915A, the Court is required to promptly screen prisoner

complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to
dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
upon which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).

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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). After reviewing the allegations in the complaint under this standard,
the Court finds that the complaint survives threshold review.
The Complaint
Plaintiff is paraplegic and confined to a wheelchair. (Doc. 1, p. 5). At the time of the
incident giving rise to this action, Plaintiff was incarcerated at Pinckneyville in a cell that he
claims was designed “for two A.D.A. inmates” but housed four inmates: two “A.D.A. inmates”
and two inmates with no apparent disabilities. Id.
On July 6, 2013, Plaintiff was, in his words, “assaulted” by one of his non-disabled
cellmates. (Doc. 1, p. 5). Plaintiff pushed the emergency call button to request help. Id. Ten

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minutes later, at 10:23 p.m., Defendant C/O Phillips came to Plaintiff’s cell. Plaintiff told
Defendant Phillips that his cellmate was threatening to beat him up; the cellmate who had
threatened Plaintiff also told Defendant Phillips to get Plaintiff out of the cell or he would do
something to him because Plaintiff was a snitch. Id. Plaintiff asked Defendant Phillips if he
could call a lieutenant, but Phillips refused stating it was too late to call anyone because they
were all getting ready to go home. Id. at 5-6. Plaintiff responded that he feared for his safety.
Phillips replied, “You’re a big boy, you can handle the ass-kicking.” Id. at 6. Plaintiff asserts
that he weighs only about 125 pounds while the inmate who assaulted him weighed 280 pounds
or more. Id. The cellmate who had threatened Plaintiff asked Phillips if he was going to move
him or Plaintiff out of the cell. Phillips then stated, “I ain’t moving nobody, if you going to do
something, do it.” Id. The cellmate told Phillips that he was going to beat Plaintiff’s ass; Phillips
responded, “I’ve been standing here for about 15 minutes and you ain’t did shit.” Id. The
cellmate then turned around and punched Plaintiff in the side of the head and “dumped” Plaintiff
out of the wheelchair. The cellmate then proceeded to kick Plaintiff in the back, ribs, head, and
arms all while Defendant Phillips stood watching. Id. After about four minutes, two more
correctional officers came in and pulled the cellmate off Plaintiff and helped Plaintiff back into
his wheelchair. Id. at 7.

Afterwards, Plaintiff alleges that Defendant Phillips laughed and said,

“He really gave you a beat down.” Id. The complaint does not mention what, if any, injuries
Plaintiff received or if he required medical treatment.1 Id.
The complaint also vaguely asserts that Plaintiff’s rights under the ADA were violated as
a result of Plaintiff being housed with non-disabled inmates. Id. at 5. Plaintiff alleges that he
feared for his safety and had filed a number of grievances to this effect prior to the attack on July
1

Under the Prison Litigation Reform Act, absent an accompanying physical injury, a court may not award
compensatory damages for nonphysical harm, such as fear of attack. See 42 U.S.C. § 1997e(e). However, nominal
and punitive damages remain available. See Calhoun v. DeTella, 319 F.3d 936, 942 (7th Cir. 2003).

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6, 2013. Id. The body of the complaint itself does not state any other facts related to an ADA
claim; however, attached to the complaint are five grievances Plaintiff filed over the course of
two years regarding cell conditions that he claimed violated his rights under the ADA. Id. at 1222. For example, Plaintiff grieved that his cell was designed to house two “ADA-inmates,” but
instead housed four inmates, which made it very difficult for him to maneuver around in his
wheelchair. Id. He further complained that housing disabled and non-disabled inmates together
puts disabled inmates at risk because they are unable to adequately defend themselves in the case
of an attack. Id. In addition, he asserted that he lacked certain equipment and the cell was not
designed to accommodate his disability. Id. The first grievance, filed July 16, 2011, was denied
as untimely. Id. at 12. In response to a subsequent grievance, the counselor’s response was:
“Past 60 day timeframe allowed per DR 504. I/M has been housed with 3 other I/M’s since
5/6/11.” Id. at 16. Subsequent grievances were denied on the grounds that they were duplicates.
Since the incident on July 6, 2013, Plaintiff has been transferred to Lawrence
Correctional Center. Id. at 1. Plaintiff asserts no complaints regarding the condition of his
current housing arrangement. In his prayer for relief, Plaintiff seeks monetary damages. Id. at 8.
Discussion
Based on the allegations in the complaint, the Court finds it convenient to divide this pro
se action into two 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.
The designation of these counts does not constitute an opinion as to their merit.
Count 1:

Eighth Amendment failure to protect claim

Count 2:

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,
and/or Rehabilitation Act, 29 U.S.C. §§ 794-94e claim

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Count 1
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006).
However, not every harm caused by another inmate translates into constitutional liability for the
corrections officers responsible for the prisoner’s safety. Farmer, 511 U.S. at 834. In order for a
plaintiff to succeed on a claim for failure to protect, he must show that he is incarcerated under
conditions posing a substantial risk of serious harm, and that the defendants acted with
“deliberate indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must
prove that prison officials were aware of a specific, impending, and substantial threat to his
safety, often by showing that he complained to prison officials about a specific threat to his
safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, defendants had to know
that there was a substantial risk that those who attacked plaintiff would do so, yet failed to take
any action. See Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001). Moreover, courts
look to how a defendant responds once an assault occurs: “[e]ven if an official is found to have
been aware that [the inmate] was at substantial risk of serious injury, he is free from liability if
he responded to the situation in a reasonable manner.” Fisher v. Lovejoy, 414 F.3d 659, 664 (7th
Cir.2005).
In the present case, Phelps has pled sufficient facts to state a claim against Defendant
Phillips for failure to protect him from a known, specific threat of assault by another inmate after
Phelps relayed the threat and requested protection. Plaintiff shall be allowed to proceed with his
Eighth Amendment failure to protect claim (Count 1) against Defendant Phillips, in his
individual capacity only.

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Plaintiff also names Gaetz (the warden at Pinckneyville at the time of the incident) and
Godinez (director of the Illinois Department of Corrections) as Defendants in the caption, but
makes no specific or even vague allegation against either of them in the body of the complaint.
Merely invoking the name of a potential defendant is not sufficient to state a claim against that
individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Plaintiffs are required to
associate specific defendants with specific claims so that defendants are put on notice of the
claims brought against them and can properly answer the complaint. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a)(2). Where a plaintiff has not included a
defendant in his statement of the claim, the defendant cannot be said to be adequately put on
notice of which claims in the complaint, if any, are directed against him.
It is likely that Gaetz and Godinez were named as Defendants because of their
supervisory roles. This is also not enough to state a claim against them. The doctrine of
respondeat superior does not apply to actions filed under 42 U.S.C. § 1983. See, e.g., Kinslow v.
Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Plaintiff has not alleged that either Defendant Gaetz
or Godinez is “personally responsible for the deprivation of a constitutional right,” id., and a
Defendant cannot be liable merely because he supervised a person who caused a constitutional
violation. Accordingly, Plaintiff may not proceed on Count 1 against Defendants Gaetz or
Godinez in their individual capacities.
Finally, official capacity claims are limited in this context to requests for injunctive relief.
See Brown v. Budz, 398 F.3d 904, 917-18 (7th Cir. 2005) (noting that the Eleventh Amendment
bars official capacity claims for monetary damages). In his request for relief, Plaintiff does not
specifically seek injunctive relief. In addition, Plaintiff has since been transferred to another
facility and the complaint does not suggest that his failure to protect claim extends beyond the

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specific incident discussed in the complaint. Therefore, since injunctive relief on this claim is
moot, Plaintiff may not proceed on this claim against any of the Defendants in their official
capacities.
Count 2
The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and the
Rehabilitation Act (“RA”), 29 U.S.C. §§ 794-94e seek to prohibit discrimination by public
entities on the basis of disability.2 The ADA provides that “no qualified individual with a
disability shall, because of that disability . . . be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132 (2006). Likewise, the RA prohibits discrimination against qualified individuals based
on a physical or mental disability. See 29 U.S.C. §§ 794-94e. Discrimination under both statutes
includes the failure to accommodate a disability. Analysis of claims under the ADA and RA is
the same, except that the RA includes as an additional element the receipt of federal funds, which
all states accept for their prisons. Jaros v. Illinois Department of Corrections, 684 F.3d 667, 672
(7th Cir. 2012) (citing 29 U.S.C. § 705(2)(B)).
In the present case, Plaintiff is wheelchair-bound and therefore disabled according to the
ADA and RA. 29 U.S.C. § 705(9)(B); 42 U.S.C. § 12102(1)(A). A more difficult question is
whether Plaintiff has stated facts sufficient to support a plausible allegation that Defendants
discriminated against him or failed to accommodate him because of his disability. Plaintiff
alleges that the double-bunking in his cell made it difficult for him to maneuver around his cell
in his wheelchair. Moreover, Plaintiff repeatedly expressed concerns about the crowded nature
2

The fact that the complaint does not mention the RA is of no consequence at this stage. Courts “are
supposed to analyze a litigant’s claims and not just legal theories that he propounds,” particularly when a
litigant is proceeding pro se. See Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012) (citations
omitted).

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of the cell and his fear of being housed with non-disabled inmates, who he believed he could not
protect himself against. Liberally construing the complaint and the attached exhibits, as the
Court must do with pro se litigants, the Court finds that Plaintiff has set forth enough facts at this
preliminary stage to proceed on this Count. See United States v. Georgia, 546 U.S. 151, 157
(2006) (finding that inmate who claimed that he was confined to a cell so small that he could not
move his wheelchair and that he was forced to sit in his own bodily waste because officials
refused to help had adequately stated a claim under the ADA).
However, the ADA and RA claims cannot proceed against the individual defendants
named in connection with the claim. Individual employees of the IDOC cannot be sued in their
individual capacities under the ADA or RA. Jaros, 684 F.3d at 670. The proper defendant is the
relevant state department or agency. 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)). Plaintiff has named Defendant Godinez, the Director of the IDOC, as one
of the defendants in this action. Plaintiff shall be allowed to proceed on Count 2 against
Defendant Godinez, in his official capacity only.

This claim shall be dismissed against

Defendant Godinez, in his individual capacity, and against all other Defendants, in their
individual and official capacities.
Pending Motion
Plaintiff has filed a motion for recruitment of counsel (Doc. 3), which shall be referred to
a United States Magistrate Judge for a decision.
Plaintiff’s motion for service of process at government expense (Doc. 4) is unnecessary
and, therefore, DENIED as MOOT.
Disposition

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IT IS HEREBY ORDERED that Plaintiff’s claim for damages on COUNT 1 shall
proceed, but only against Defendant PHELPS, in his individual capacity.
IT IS FURTHER ORDERED that Plaintiff may proceed on COUNT 2, but only
against Defendant GODINEZ, in his official capacity. Defendant GAETZ is DISMISSED
without prejudice from this action.
The Clerk of Court shall prepare for DEFENDANT PHELPS (who remains in this
action in his individual capacity only) and GODINEZ (who remains in this action in his
official capacity only): (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.

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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 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 a United States
Magistrate Judge for further pre-trial proceedings, including a decision on Plaintiff’s motion for
recruitment of counsel (Doc. 3). Further, this entire matter shall be REFERRED to a United
States Magistrate Judge 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 § 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

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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: September 9, 2014
s/ J. Phil Gilbert
United States District Judge

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