Donelson v. Atchison et al

Filing 215

ORDER: Plaintiff's Motion for Leave to File an Amended Complaint (Doc. 192 ) and Motion to Reinstate Harassment Claim (Doc. 210 ) are DENIED. It is further ORDERED that Plaintiff's Motion for Recruitment of Counsel (Doc. 198 ), Motions f or Sanctions (Docs. 182 , 185 , 193 ), Motion to Compel (Doc. 206 ) and Motions to Bar Video Deposition (Docs. 180 , 184 , 202 ) are DENIED. It is further ORDERED that Plaintiff's Motion for Copies (Doc. 195 ) is GRANTED. The Clerk 9;s Office is DIRECTED to mail Plaintiff a copy of Judge Frazier's Order, dated June 24, 2016. It is further ORDERED that Plaintiff's Motion to Compel (Doc. 197 ) is GRANTED. Defendants shall respond to the discovery responses attached t o Plaintiff's Motion to Compel no later than December 7, 2016. It is further ORDERED that Defendants' Motion for an Extension of Time to Complete Discovery (Doc. 199 ), Motion for Leave to File a Response (Doc. 207 ), Plaintiff's Mo tion to Supplement (Doc. 163 ), Motion for an Extension of Time to File a Motion for Leave to Amend (Doc. 190 ), Motion to Strike (Doc. 212 ) and Motions for Status (Docs. 195 , 201 ) are DENIED as MOOT. Signed by Judge Staci M. Yandle on 11/16/2016. (gdk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHARLES DONELSON,
Plaintiff,
vs.
MICHAEL ATCHISON, et al.,
Defendants.

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Case No. 14-CV-1311-SMY-RJD

MEMORANDUM AND ORDER
This matter comes before the Court on sixteen pending motions filed by Plaintiff Charles
Donelson (Docs. 163, 180, 182, 184, 185, 190, 192, 193, 195, 197, 198, 201, 202, 206, 210, 212)
and two pending motions of Defendants (Docs. 199, 207).
On November 25, 2014, Plaintiff commenced an action pursuant to 42 U.S.C. § 1983,
alleging several constitutional violations (Docs. 1, 18). On January 29, 2015, the Court severed
Plaintiff’s claims into separate actions. The instant action pertains to Plaintiff’s claim that
Defendants violated Plaintiff’s Eighth Amendment and First Amendment rights at Menard
Correctional Center by denying access to the yard and confining Plaintiff in unsanitary
conditions. Specifically, Plaintiff’s claims are as follows:
Count 1: Eighth Amendment claim against Defendants Holton and Cartwright for
denying Plaintiff access to the yard, thus preventing him from engaging in
physical activity necessary to maintain his health;
Count 2: Eighth Amendment claim against Unknown (John Doe) Defendants
and Defendants Baker and Cartwright, for placing Plaintiff in unsanitary cells
and/or failing to remedy the cell conditions in response to Plaintiff’s complaints;
Count 3: First Amendment claim against Unknown (John Doe) Defendants, for
housing Plaintiff in the cell contaminated with black mold in November 2012, in
retaliation for his complaints and grievances over the denial of yard;

Count 4: First Amendment claim against Defendant Baker, for refusing to
remedy the unsanitary conditions in Plaintiff’s cell in June 2013 (contamination
with feces and urine), in retaliation for Plaintiff’s grievances over his staff
assaulter classification;

Motion for Leave to Amend the Complaint
Plaintiff moved for leave to amend the Complaint on August 1, 2016 (Doc. 192).
Plaintiff attempts to reassert claims under Section 1983 and Title II of the Americans with
Disabilities Act that were dismissed in the screening order.

He further attempts to add

defendants that were dismissed in the screening order to his existing claims.
Federal Rule of Civil Procedure 15(a) states, “a party may amend the party's pleading
only by leave of court or by written consent of the adverse party; and leave shall be freely given
when justice so requires.” Leave may be denied upon undue prejudice to the opposing party by
virtue of allowance of the amendment, or futility of amendment . . . Airborne Beepers & Video,
Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007).
The Court finds that allowing Plaintiff to amend his Complaint would be futile. This
action pertains to Plaintiff’s incarceration at Menard Correctional Center, which ended in
October 2013. (Doc. 1-1 at 3.) “[T]he applicable statute of limitations for section 1983 claims is
the state period for personal injury torts.” Kalimara v. Illinois Dep’t of Corr., 879 F.2d 276, 277
(7th Cir. 1989). The state period for personal injury torts also applies to claims under Title II of
the Americans with Disabilities Act. Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 551
(7th Cir. 1996). Under Illinois law, the statute of limitations for personal injury torts is two
years. 735 Ill. Comp. Stat. 5/13-202. With the exception of the exhaustion of administrative
remedies, there are no applicable grounds for equitable tolling and Plaintiff represented that he
exhausted all available remedies prior to filing the initial Complaint. (Doc. 1 at 9.)

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The relation back doctrine allows amended pleadings to relate back to the date of an
original pleading. Fed. R. Civ. P. 15(c). “Rule 15(c)(1)(C) applies where the amendment
changes the party or the naming of the party against whom a claim is asserted.” Hunt ex rel.
Chiovari v. Dart, 612 F. Supp. 2d 969, 973 (N.D. Ill. 2009); Arreola v. Godinez, 546 F.3d 788,
796 (7th Cir. 2008). Here, the vast majority of Plaintiff’s proposed amendments would add party
defendants. To satisfy Fed. R. Civ. P. 15(c), the proposed defendants either must know or should
know that Plaintiff would have sued them absent a mistake and, if so, whether the mistake
impaired the ability of the proposed defendants to defend themselves.

Joseph v. Elan

Motorsports Techs. Racing Corp., 638 F.3d 555, 560 (7th Cir. 2011); Worthington v. Wilson, 8
F.3d 1253, 1256–57 (7th Cir. 1993). Stated otherwise, “A potential defendant who has not been
named in a lawsuit by the time the statute of limitations has run is entitled to repose—unless it is
or should be apparent to that person that he is the beneficiary of a mere slip of the pen, as it
were.” Joseph, 638 F.3d at 560.
The record contains no indication that the proposed defendants either knew or should
have known of Plaintiff’s intent to include them in this action, and Plaintiff has identified no
mistake. Therefore, the relation back doctrine does not apply. The statute of limitations bars the
addition of parties as proposed and such claims are futile.
The only proposed amendment involving the existing defendants is Plaintiff’s ADA
claim in which he alleges that his designation as a predator by mental health staff constitutes a
disability and that Defendants prevented him from accessing the yard and confined him to North
2 housing because of that designation. The relation back doctrine likely applies to this claim
under Fed. R. Civ. P. 15(c)(1)(B). However, this proposed claim does not adequately suggest a
statutory disability. The ADA defines “disability” as a physical or mental impairment that

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substantially limits one or more major life activities. Gogos v. AMS Mech. Sys., Inc., 737 F.3d
1170, 1172 (7th Cir. 2013); 42 U.S.C. § 12102(1). “[M]ajor life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A); Scott v. Kaneland Cmty.
Unit Sch. Dist. No. 302, 898 F. Supp. 2d 1001, 1005 (N.D. Ill. 2012). Whether the predator
designation constitutes or correlates with a physical or mental impairment is entirely unclear and
the Complaint provides no indication that any such impairment substantially limited Plaintiff
with respect to any major life activity. Because Plaintiff’s allegations fail to state a claim under
the ADA, the claim is futile. For these reasons, Plaintiff’s Motion for Leave to Amend the
Complaint is denied.
Motion to Reinstate Harassment Claim
Plaintiff moves to reinstate his claims of harassment in light of Beal v. Foster, 803 F.3d
356 (7th Cir. 2015). On January 28, 2015, the Court screened Plaintiff’s initial Complaint and
characterized general allegations of harassment and a more specific allegation that certain
correctional officers impeded his path and tried to incite Plaintiff to hit them as claims of
harassment. (Doc. 18 at 17-18.) The Court dismissed Plaintiff’s claims of harassment in
violation of the Eighth Amendment, reasoning that the general allegations were too vague to
state a claim and, with respect to the more specific allegation, found, “Verbal harassment such as
this, however, does not violate the Constitution.” (Id.)
In Beal, the Seventh Circuit held that verbal harassment alone can amount to cruel and
unusual punishment but maintained that “most verbal harassment” did not. 803 F.3d at 357.
Beal does not negate the dismissal of Plaintiff’s harassment claims in the screening order.

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Regarding the general allegations, Beal does not cure the lack of specificity for which these
allegations were dismissed. Regarding the more specific allegations, although verbal harassment
may occasionally violate the Eighth Amendment, Beal requires a showing of emotional pain or
some other deprivation. Id. at 357-58. In the screening order, the Court noted that if Plaintiff
had struck an officer, he would have been subject to disciplinary action but that Plaintiff
refrained from doing so. (Doc. 18 at 17-18.) Plaintiff has identified no other deprivation
resulting from the correctional officers’ conduct. Based on the foregoing, Plaintiff’s Motion to
Reinstate Harassment Claim is denied.
Motion for Recruited Counsel
There is no right to court-appointed counsel in federal litigation. Olson v. Morgan, 750
F.3d 708, 711 (7th Cir. 2014). In deciding whether to appoint counsel, district courts must ask
two questions: “has the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluding from doing so, and if so, given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?” Id. Here, Plaintiff has made attempts to obtain counsel
on his own, but no attorney would take his case. However, at this juncture, the Court finds
Plaintiff is capable of litigating this matter on his own—the case involves a straightforward
constitutional tort. Additionally, Plaintiff is an experienced litigator who has pursued at least 17
actions in federal court. Therefore, Plaintiff’s Motion for Recruited Counsel is denied.
Motion for Sanctions
Plaintiff moves for sanctions against defense counsel with regard to Defendants’
Response to Plaintiff’s Motion to Compel (Doc. 173). In this response, Defendants state:
4.
Defendant Holton served Plaintiff his Objections to Plaintiff’s First Set of
Interrogatories on May 13, 2016.

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5.
The undersigned inadvertently did not serve Plaintiff with Defendant
Baker’s or Cartwright’s objections and responses to plaintiff’s second set of
interrogatories until June 16, 2016. Once the undersigned realized this failure, it
was corrected.
6.
As of June 16, 2016, Defendant Cartwright and Baker have served
Plaintiff with discovery responses.
Plaintiff alleges that these statements constitute fraud upon the Court because he did not receive
Defendant Holton’s discovery responses in April 2016 and because defense counsel intentionally
delayed Defendants Cartwright and Baker’s discovery responses. Defendants have provided
another copy of Defendant Holton’s responses to Plaintiff and deny any intentional delay or
misrepresentation.
Plaintiff seeks sanctions under Federal Rule of Civil Procedure Rules 11 and 37 but has
not followed the procedural prerequisites for sanctions under either rule. More significantly,
despite the fact that defense counsel may have been mistaken with respect to Defendant Holden’s
responses, the record contains no evidence that Counsel intentionally delayed discovery
responses or purposefully mislead the Court. Plaintiff’s Motions for Sanctions are denied.
Discovery Motions
On September 21, 2016, Plaintiff moved to compel Defendants to respond to requests for
production and interrogatories. Plaintiff states that he served the requests on August 4, 2016 and
followed up with a letter on September 9, 2016. Defendants respond that they received only
requests for production from Plaintiff on August 30, 2016 and that they were attempting to
respond. In the interest of judicial economy, the Court grants Plaintiff’s Motion to Compel.
Defendants shall respond to the discovery responses attached to Plaintiff’s Motion to Compel.
On October 28, 2016, Plaintiff moved to compel Defendants to respond to his request for
medical records from January 2016 to September 2016. Plaintiff provides very little to describe

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his complaints regarding Defendants’ discovery responses. Further, Plaintiff fails to show that
he made a good faith effort to confer as required. See Fed. R. Civ. P. 37(a). Accordingly, the
Court denies Plaintiff’s Second Motion to Compel.
Plaintiff also moves to bar video deposition at Stateville Correctional Center, alleging
that his arms will be bound and he will be chained and cuffed during his deposition pursuant to
Department of Corrections policy. He further objects that Defendants and defense counsel will
not be physically present. Defendants respond that appearing by video conference will save time
and expense and that they do not have control over Plaintiff’s restraints but defer to the
Department of Corrections for safety and security measures. The Court perceives no prejudice to
Plaintiff from the physical absence of Defendants and defense counsel. The Court understands
that the limited ability to review documents during the deposition may constrain Plaintiff’s
ability to answer fully. However, the Court, too, defers to the Department of Corrections on this
matter.

Nevertheless, the Court will be mindful of Plaintiff’s circumstances during the

deposition upon any review of the transcript. Plaintiff’s Motion to Bar Video Deposition is
denied.
Motion for Copies
Plaintiff requests copies of the Magistrate Judge Orders from June and July 2016 and
states that the Department of Corrections provides only the docket text for orders and refuses to
provide full copies. Judge Frazier’s Order from June 24, 2016 is the only Order responsive to
Plaintiff’s request. (Doc. 178.) As a one-time courtesy, the Court grants Plaintiff’s Motion for
Copies. The Court advises Plaintiff that the docket text frequently represents the entirety of the
Court’s orders. Plaintiff is further advised that he must purchase any further copies from the
Clerk’s Office at $.50 per page.

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CONCLUSION
Based on the foregoing, it is hereby ORDERED that Plaintiff’s Motion for Leave to File
an Amended Complaint (Doc. 192) and Motion to Reinstate Harassment Claim (Doc. 210) are
DENIED. It is further ORDERED that Plaintiff’s Motion for Recruitment of Counsel (Doc.
198), Motions for Sanctions (Docs. 182, 185, 193), Motion to Compel (Doc. 206) and Motions to
Bar Video Deposition (Docs. 180, 184, 202) are DENIED.
It is further ORDERED that Plaintiff’s Motion for Copies (Doc. 195) is GRANTED.
The Clerk’s Office is DIRECTED to mail Plaintiff a copy of Judge Frazier’s Order, dated June
24, 2016.
It is further ORDERED that Plaintiff’s Motion to Compel (Doc. 197) is GRANTED.
Defendants shall respond to the discovery responses attached to Plaintiff’s Motion to Compel no
later than December 7, 2016.
It is further ORDERED that Defendants’ Motion for an Extension of Time to Complete
Discovery (Doc. 199), Motion for Leave to File a Response (Doc. 207), Plaintiff’s Motion to
Supplement (Doc. 163), Motion for an Extension of Time to File a Motion for Leave to Amend
(Doc. 190), Motion to Strike (Doc. 212) and Motions for Status (Docs. 195, 201) are DENIED
as MOOT.
IT IS SO ORDERED.
DATED: November 16, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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