Cook v. Kerr et al

Filing 16

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge J. Phil Gilbert on 8/24/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAYNE COOK, # M-42466,

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Plaintiff,
vs.
SUSAN KERR, RANDY GROUNDS,
DEE DEE BROOKHART,
RODERICK MATTICKS,
and LOUIS SHICKER,
Defendants.

Case No. 15-cv-00070-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter comes before the Court for consideration of Plaintiff Dwayne Cook’s second
amended complaint (Doc. 14), which he filed pursuant to 42 U.S.C. § 1983. In it, Plaintiff
claims that he sustained multiple injuries, including a concussion, when he fell from his broken
wheelchair at Robinson Correctional Center on July 19, 2014 (Doc. 14, pp. 3-5). In connection
with this incident, Plaintiff brings Eighth and Fourteenth Amendment claims against
Defendants Roderick Matticks (regional medical director), Louis Shicker (agency medical
director), Randy Grounds (warden), Dee Dee Brooks (programs warden), and Susan Kerr
(health care unit administrator). The second amended complaint is timely1 and is now subject to
preliminary review under 28 U.S.C. § 1915A.

1

The Court dismissed the initial complaint (Doc. 1) for noncompliance with Federal Rule of Civil
Procedure 8 on February 26, 2015 (Doc. 7). However, the dismissal was without prejudice, and Plaintiff
was granted leave to file an amended complaint that cured the defects in the initial pleading on or before
April 3, 2015. Plaintiff filed his first amended complaint (Doc. 10) prior to this deadline, but the pleading
contained no request for relief. Plaintiff was ordered to file a second amended complaint that includes
this request on or before July 7, 2015. He filed the second amended complaint on July 1, 2015 (Doc. 14).
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Merits Review Pursuant to 28 U.S.C. § 1915A
Under Section 1915A, the Court is required to dismiss any portion of the second
amended 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).
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). The second amended complaint survives
preliminary review under this standard.

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Second Amended Complaint
While housed at Robinson Correctional Center (“Robinson”), Plaintiff was issued a used
wheelchair, which he claims was “medically necessary” (Doc. 14, p. 3). By July 19, 2014,2
several parts on the wheelchair were either worn out or broken. Plaintiff notified Susan Kerr, the
prison’s health care unit (“HCU”) administrator, about the issue.

Instead of replacing the

wheelchair, Administrator Kerr allowed an “unqualified, untrained and unsupervised” inmate to
repair the wheelchair (Doc. 14, p. 4). The inmate used whatever materials he could find to repair
the device, including a shoestring and a bread tie.
But the inmate was no MacGyver. The repairs did not last. Not even a day. At lunch the
following day, Plaintiff leaned back in his wheelchair, and it collapsed. He fell onto his head and
back and sustained “very traumatic injuries,” including a concussion and pain in his right
shoulder, neck, hip, and lower back (Doc. 14, pp. 4-5). Plaintiff was seen by the prison’s
medical staff but continued to experience symptoms of dizziness, slurred speech, headaches, etc.
(Doc. 14, p. 5).
He filed grievances seeking additional medical attention on July 31st and August 18th.
He received two preliminary responses in early October, stating that his grievances had been
forwarded to “inmate issues.” Plaintiff received no further communications pertaining to either
grievance. He submitted a third grievance on October 16th, but received no response to this
grievance either (Doc. 14, pp. 5-6).
Plaintiff also wrote a letter to Louis Shicker, the agency medical director, on
October 19th (Doc. 14, p. 5). He requested an MRI and CT because of persistent, untreated
symptoms. Director Shicker responded in a letter, which states that Plaintiff was seen by nurses
and two different doctors who found no “clinical indications warranting specialized imaging”
2

All of the events giving rise to this action occurred in 2014.
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(Doc. 14-4, p. 4). Rather than deny Plaintiff’s request for an MRI and CT outright, however,
Director Shicker indicated that an “adjustment to the treatment plan c[ould] be made if [the tests]
are clinically indicated” (Id.). The Court found no record indicating that a review of the
treatment plan was actually ordered.
Plaintiff alleges that Administrator Kerr’s decision to have another inmate repair his
wheelchair was aimed at saving Wexford Healthcare Sources and the State of Illinois money,
rather than providing him with adequate medical care.

In connection with the incident,

Plaintiff claims that the defendants allegedly violated his right to be free from cruel and unusual
punishment under the Eighth Amendment and his right to due process of law under the
Fourteenth Amendment (Doc. 14, p. 6). He seeks declaratory judgment and monetary damages.
He also seeks injunctive relief, in the form of a preliminary and permanent injunction requiring
the defendants to refer Plaintiff to an outside specialist for an MRI and CT, provide all inmates
with proper healthcare, and use the services of certified maintenance staff to repair prison
wheelchairs (Doc. 14, pp. 6-7). Finally, he seeks immediate release from prison.3
Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
deems it appropriate to reorganize the claims in Plaintiff’s pro se second amended complaint into
four (4) counts, as set forth below:
Count 1: Administrator Kerr exhibited deliberate indifference to Plaintiff’s
serious medical needs, in violation of the Eighth Amendment, when
she ordered an untrained and unsupervised inmate to repair his broken
wheelchair using bread ties and a shoestring;
3

This form of relief is not available under Section 1983. “[H]abeas corpus is the exclusive remedy for a
state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier
release. . . .” Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475,
488-90 (1973)).
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Count 2: Director Shicker violated Plaintiff’s Eighth Amendment right to
receive adequate medical care when he failed to order a review of
Plaintiff’s treatment plan or additional testing, in response to
Plaintiff’s complaints about ongoing symptoms of dizziness, slurred
speech, headaches, etc.;
Count 3: Defendants violated Plaintiff’s right to due process of law by ignoring
or delaying responses to his grievances; and
Count 4: Defendants violated Plaintiff’s rights under the Rehabilitation Act
and/or Americans with Disabilities Act when they deprived him of a
working wheelchair.
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 should not
be construed as an opinion regarding their merit.
Counts 1 & 2 – Deliberate Indifference to Medical Needs
Counts 1 and 2 shall receive further review. The Eighth Amendment requires the state to
provide those it incarcerates with basic medical care. Wetzel v. Sheahan, 210 F.3d 377 (7th Cir.
2000) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976); Collignon v. Milwaukee Cnty.,
163 F.3d 982, 988 (7th Cir. 1998)). Prison officials violate the Eighth Amendment when they
respond to an inmate’s serious medical needs with deliberate indifference. Farmer v. Brennan,
511 U.S. 825, 834 (1994). A serious medical need is “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F .3d 1364, 1371
(7th Cir. 1997). Deliberate indifference is shown when a prison official is “aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,” and the
official actually draws the inference. Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005).

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The second amended complaint alleges that Administrator Kerr failed to provide Plaintiff
with a properly functioning and medically necessary wheelchair, after Plaintiff informed her that
his wheelchair was broken. In an effort to save money, she ordered an inmate to repair the
device without training him, supervising him, or supplying him with the materials necessary to
make the repairs. It is not unreasonable to infer that Administrator Kerr responded to Plaintiff’s
serious medical need with deliberate indifference when doing so. At this early stage, the Court
will allow Plaintiff to proceed with his Eighth Amendment claim (Count 1) against
Administrator Kerr.
Less clear is Plaintiff’s claim against Director Shicker, the agency medical director who
denied his request for an MRI and CT scan. Plaintiff wrote a letter to Director Shicker and asked
for the diagnostic tests because of persistent symptoms of dizziness, slurred speech, headaches,
etc. (Doc. 14, p. 5). Director Shicker denied the request based on Plaintiff’s history of treatment.
See Greeno, 414 F.3d at 655 (prison official who reviewed complaints and verified with staff
that inmate was receiving treatment was not deliberately indifferent).

And while

Director Shicker agreed that an “adjustment to the treatment plan c[ould] be made if [the tests]
[we]re clinically indicated,” he took no steps to order a review of Plaintiff’s treatment plan in
light of the letter he received from Plaintiff suggesting that the treatment plan, to date, was
ineffective (Doc. 14-4, p. 4). Instead, Director Shicker appears to have turned a blind eye to the
situation.

The doctrine of respondeat superior is not applicable to Section 1983 actions.

Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). However, a supervisor may be liable
under Section 1983 when he or she turns a blind eye to an inmate’s letters requesting medical
care. See Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 1999); Vance v. Peters, 97 F.3d 987, 993
(7th Cir. 1996).

Under the circumstances, the Court cannot dismiss Plaintiff’s

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Eighth Amendment claim against Director Shicker at this time, and this claim (Count 2) shall
also receive further review.
Count 3 – Denial of Due Process
The second amended complaint states no viable Fourteenth Amendment due process
claim (Count 3) against any of the defendants. Plaintiff merely alludes to this claim in his
pleading. But because the pleading is devoid of any allegations that develop the claim in any
factual sense, the Court is unable to define its basic contours. Under Twombly, Plaintiff is
required to plead “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007). Plaintiff has not done so.
To the extent that Plaintiff’s claim arises from the delay or disregard of his grievances by
the defendants, no claim arises under the Fourteenth Amendment. Prison grievance procedures
are not constitutionally mandated and thus do not implicate the Due Process Clause per se.
As such, the alleged mishandling of grievances “by persons who otherwise did not cause or
participate in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953
(7th Cir. 2011).

See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008);

George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996). Accordingly, Count 3 shall be dismissed without prejudice for failure to state a
claim upon which relief may be granted.
Count 4 – ADA and RA
The second amended complaint does not mention a claim under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., or the Rehabilitation Act (“RA”),
29 U.S.C. §§ 794-94e (Count 4). But the fact that Plaintiff, a pro se litigant, omitted reference
to the claims is not fatal at this early stage. Courts “are supposed to analyze a litigant’s claims

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and not just legal theories that he propounds,” particularly when the litigant is proceeding pro se.
See Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012) (citations omitted). The Court will
consider both claims.
To establish a violation of Title II of the ADA, a plaintiff “must prove that he is a
‘qualified individual with a disability,’ that he was denied ‘the benefits of the services, programs,
or activities of a public entity’ or otherwise subjected to discrimination by such an entity, and
that the denial or discrimination was ‘by reason of’ his disability.” Wagoner v. Lemmon,
778 F.3d 586, 592 (7th Cir. 2015) (citing Love v. Westville Corr. Ctr., 103 F.3d 558, 560
(7th Cir. 1996) (citing 42 U.S.C. § 12132)). An RA claim is “functionally identical” to an ADA
claim. Id. It requires a plaintiff to allege that “(1) he is a qualified person (2) with a disability
and (3) the [state agency] denied him access to a program or activity because of his disability.”
Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 672 (7th Cir. 2012). To proceed with an RA claim, the
relevant state agency (i.e., Illinois Department of Corrections (“IDOC”)) must also accept federal
funds, which all states do. Id. at 671 (“[T]he analysis governing each statute is the same except
that the Rehabilitation Act includes as an additional element the receipt of federal funds, which
all states accept for their prisons.”) (citations omitted).
Based on the fact that he was bound to a wheelchair, Plaintiff is arguably a qualified
person with a disability under both the ADA and RA. See 42 U.S.C. § 12102(1); 29 U.S.C.
§ 794.

The question is whether the IDOC denied him access to any program or service.

The second amended complaint does not suggest that it did.
Plaintiff does not allege, for example, that his wheelchair was a “service” under the
statutes, and the prison’s failure to provide him with a working wheelchair amounted to a denial
of the service. He also does not allege that he was unable to use the broken device to access the

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dining hall, prison yard, shower, law library, etc. He does not mention being unable to access
parts of the prison available to non-disabled prisoners. He does not allege that he was denied a
second wheelchair, after the first one collapsed. The allegations, though very concerning, do not
amount to a denial of services within the meaning of either statute. Accordingly, Count 4 shall
be dismissed without prejudice for failure to state a claim upon which relief may be granted.
Claims Against Grounds, Brookhart, & Matticks
The pleading states no cognizable claims against Defendants Grounds, Brookhart, and
Matticks. 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). Therefore, the complaint must at least suggest that each
defendant was personally involved in the violation of Plaintiff’s constitutional rights.
The second amended complaint does not even mention these defendants in the statement
of claim. They are listed only in the case caption and list of defendants. 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) (“A plaintiff cannot state a claim against
a defendant by including the defendant’s name in the caption.”).
Plaintiffs are required to associate specific defendants with specific claims, so that
defendants are put on notice of the claims brought against them and so they can properly answer
the complaint. See Twombly, 550 U.S. at 555; 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.

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Given the lack of allegations against Defendants Grounds, Brookhart, and Matticks, the
Court finds no basis for allowing any claims against them to proceed. Accordingly, with only
one exception noted in the next section, Defendants Grounds, Brookhart, and Matticks shall be
dismissed from this action without prejudice.
Request for Injunctive Relief
Plaintiff seeks a preliminary and permanent injunction, in the form of an Order for proper
medical care with an outside specialist (including an MRI and/or CT) and for repair of prison
wheelchairs by qualified maintenance staff.

He did not file a separate motion seeking a

preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure.
Given Plaintiff’s request for this relief in the second amended complaint, the Clerk shall be
directed to add a motion for preliminary injunction to the docket sheet. The motion shall be
referred to a magistrate judge for further consideration, and Warden Randy Grounds shall remain
in this action, in his official capacity only, based on this request for relief.
Pending Motions
Plaintiff has filed two motions to appoint counsel (Docs. 3, 15), which shall both be
referred to a United States Magistrate Judge for further consideration.
Disposition
The CLERK is DIRECTED to ADD a motion for preliminary injunction to the docket
sheet in CM/ECF.
IT IS HEREBY ORDERED that COUNTS 3 and 4 are DISMISSED without prejudice
for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Defendants GROUNDS (in his individual
capacity), BROOKHART, and MATTICKS are DISMISSED without prejudice.

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As to COUNTS 1 and 2, the Clerk of Court shall prepare for Defendants KERR,
SHICKER, and GROUNDS (in his official 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).
The Clerk is DIRECTED to mail these forms, a copy of the second amended 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.
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
second amended complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
Magistrate Judge for further pre-trial proceedings, which shall include a determination on the
pending motions to appoint counsel (Docs. 3, 15) and consideration of the motion for
preliminary injunction. Any motion filed after the date of this Order that pertains to the request
for injunctive relief or seeks leave to amend the complaint is also REFERRED to a
United States Magistrate Judge.
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 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

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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 24, 2015
s/ J. Phil Gilbert
U.S. District Judge

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