Ross v. Gossett et al

Filing 102

ORDER TO CONSOLIDATE CASES. The Court will consolidate case 16-130-SMY-SCW. Jonathan Tolliver IDOC and Wexford Health Sources, Inc. added. Signed by Judge Staci M. Yandle on 3/21/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JONATHAN TOLLIVER, #R05836,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
SALVADOR GODINEZ,
BARR,
IDOC,
KIMBERLY BUTLER,
LINDA CARTER,
C/O HAMILTON,
C/O CROSS,
LT. WALLER,
C/O SKIDMORE,
NURSE MOLDENHAUER,
TROST,
UNKNOWN PARTY, and
INTERNAL AFFAIRS UNIT,
Defendants.

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Case No. 16-cv-00130-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Jonathan Tolliver, an inmate currently incarcerated at Menard Correctional
Center (“Menard”), brings this pro se civil rights action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. The Complaint arises out of events that occurred in April
2014. Plaintiff alleges that his rights were violated during a strip search and cell shakedown
conducted by the Orange Crush Tactical Team at Menard in April 2014 and by prison staff and
officials’ alleged deliberate indifference to his medical needs following the shakedown.

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Merits Review Under 28 U.S.C. § 1915A
The Complaint is before the Court for a preliminary review 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). 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).
The Complaint
On April 8, 2014, Menard was on lockdown and Plaintiff’s housing unit was searched by
the Orange Crush Tactical Team (Doc. 1, p. 11). No members of the team were wearing a name
badge. Id. The search began with officers yelling and rapping their batons on the cell bars as
they entered the housing unit (Id. at 12). Plaintiff, along with all of the other inmates on the unit,
was then subjected to a strip search and placed in handcuffs with his arms behind his back in an
uncomfortable position (Id.).
Following the strip search, Plaintiff was ordered walk with his back straight while

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looking down to the ground. Id. The inmates were then ordered to line up so that their genitals
came in contact with the buttocks of the man in front of them (Id. at 14). This lasted for hours
(Id.).
When Plaintiff returned to his cell, he began to stretch his arm through the chuckhole into
the cell in order to relieve his pain (Id. at 14-15). As he was doing this, an officer pulled his arm
back through the chuckhole, hitting it on the cell’s steel bars (Id. at 15). The officer hit Plaintiff’s
arm on the bars and said “don’t move again motherfucker or I’ll break your fucking arm.” The
officer pulled Plaintiff’s arms further through the chuckhole, causing him to bend his back in a
painful manner. The pain was such that it brought tears to his eyes (Id. at 15).
The tactical officer eventually released his arms, uncuffed him and ordered him to face
the wall at the end of the cell while he uncuffed his cellmate. Plaintiff’s hand had at this point
“swoll[en] up like a balloon.” He asked for medical attention, but “was told to turn the fuck back
around or he was gonna have more than his hand to worry about.” His hand had swollen twice its
normal size and although he asked every officer that passed by, including defendants C/O
Hamilton and Lt. Waller, for medical aid, his requests were denied (Id. at 16).
Plaintiff put in several sick call requests. However, because Wexford Health Sources,
Inc. (“Wexford”), the Illinois Department of Corrections (“IDOC”) and Menard have a policy of
cancelling medical passes during lockdowns, his requests were ignored (Id. at 17).
Plaintiff’s hand had become black and remained badly bruised. On April 16, 2014, he
was finally seen by a prison nurse who told him his hand was not broken. Two days later, he was
seen by Defendant Moldenhauer, a nurse practitioner, who also told him his hand was not
broken. She said she would order an x-ray, however (Id. at 18). Plaintiff let Moldenhauer know
that the Tylenol he had previously been given was not effective in reducing his pain (Id. at 18).

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She told him that Wexford has a policy of only providing Tylenol, Motrin or Ibuprofen to
patients, and nothing stronger (Id. at 19). The nurse scheduled a follow-up in a week.
Plaintiff’s x-ray showed that his hand was swollen and on April 21, 2014, he was
scheduled to see Defendant Dr. Trost, Wexford’s medical director (Id. at 21). Dr. Trost was
unavailable, however, so he saw Moldenhauer. She told him he would receive a cast once
Wexford approved the procedure.
Plaintiff eventually underwent surgery on May 1, 2014—21 days after injuring his hand
(Id.). He was prescribed strong pain medication by a physician at the hospital in which he
received the surgery, but Wexford and Dr. Trost gave him Ibuprofen instead, which did not
remedy his pain (Id. at 22). Plaintiff also claims that Dr. Barr, who treated Plaintiff post-surgery,
and Nurse Skidmore failed to provide him with adequate care. (Id. at 25.)
A few days previous, on April 28, 2014, Plaintiff filed an emergency grievance (Id.). The
grievance officer (Linda Carter) denied the grievance. Plaintiff wrote letters to Carter, Warden
Butler, Dr. Trost and Director Godinez (then-Director of IDOC), complaining of his pain and
treatment and of the fact that Menard does not offer physical therapy (Id. at 23). The recipients
did not respond to his complaints. Additionally, Plaintiff claims that he filed a report about the
excessive force used against him with Internal Affairs, but that Internal Affairs did not
investigate the matter (Id. at 25-26).
Discussion
The Court will begin with a preliminary note concerning the handling of Orange Crush
cases in the Southern District of Illinois. Plaintiff’s Complaint raises allegations similar to the
pleading in Ross v. Gossett, Case No. 15-cv-309-SMY-SCW, which was filed in this Court on
March 19, 2015. The plaintiff in Ross is seeking injunctive relief and damages on behalf of

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himself and a class of prisoners who were subjected to similar strip searches while incarcerated
at Illinois prisons during 2014. Should the Ross class be certified, Plaintiff could potentially be a
member of that class. Due to the similarities between the two cases and the need to consolidate
judicial resources, Plaintiff’s case was transferred to the undersigned judge.
With the above in mind, the Court will evaluate Plaintiff’s Complaint pursuant to 28
U.S.C. § 1915A. In his Complaint, Plaintiff lists the following discrete causes of action.
COUNT 1:

Eighth Amendment claim against Defendants Unknown Party,
Godinez, Butler, and IDOC for the infliction of excessive force upon
Plaintiff during the strip search and shakedown;

COUNT 2:

Eighth Amendment claim for failure to prevent the violation of
Plaintiff’s constitution right of protection from excessive force against
IDOC, Godinez, and Butler.

COUNT 3:

Eighth Amendment claim for failure to prevent the violation of
Plaintiff’s constitutional right of protection from deliberate
indifference of his serious medical needs against IDOC, Godinez,
Butler, and Wexford.

COUNT 4:

Eighth Amendment claim for deliberate indifference to his serious
medical needs against Defendants Barr, Butler, Godinez, Carter,
Hamilton, Cross, Waller, Skidmore, Moldenhauer, Unknown Party,
IDOC, and Wexford.

COUNT 5:

Fourteenth Amendment claim for failure to investigate against
Defendant Internal Affairs Unit.

Given the similarity between Plaintiff’s Complaint and the Complaint in Ross (as regards
his Orange Crush-related allegations), the fact that the Complaint in Ross was permitted through
screening and the fact that a motion to dismiss was recently denied in Ross (as to Counts 1, 2, 3,
and 5) (see Ross v. Gossett, Case No. 15-cv-309-SMY-SCW, [Doc. 76]), the Court is of the
opinion that Counts 1 and 2 cannot be dismissed in this case at this time.
Count 3 may also proceed. Plaintiff’s allegations of systematic issues with Menard’s
health care unit, which implicates senior level staff within IDOC, and the failure of such staff to
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intervene on Plaintiff’s behalf are sufficient to state arguable claims for failure to intervene
against IDOC, Godinez, Butler and Wexford. Therefore, Count 3 survives preliminary review.
Count 4 also survives preliminary review. To state a medical claim under the Eighth
Amendment, a plaintiff must show that his condition “was objectively serious,” and that officials
acted with the requisite intent towards that condition. Sherrod v. Lingle, 223 F.3d 605, 610 (7th
Cir. 2000). Here, the Complaint alleges an objectively serious medical condition. Plaintiff
asserts he has experienced severe and persistent pain in his hand which was as broken due to the
actions of an Orange Crush tactical unit officer. See Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997) (“[T]he presence of a medical condition that significantly affects an individual’s
daily activities . . . or the existence of chronic and substantial pain” indicate the presence of a
serious medical condition.) (internal quotation marks and citations omitted). Plaintiff’s claim
also passes the subjective hurdle. Allegations of a failure to treat or intervene on a prisoner’s
behalf in the face of an objectively serious medical condition can constitute indifference,
depending on the circumstances. See Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011);
McGowan v. Hulick, 612 F.3d 636, 640-41 (7th Cir. 2010). Further, a prisoner’s correspondence
to a prison supervisor may “establish a basis for personal liability under § 1983 where that
correspondence provides sufficient knowledge of a constitutional deprivation.” Perez v.
Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015). Count 3, therefore, shall proceed against
Defendants Barr, Butler, Godinez, Carter, Hamilton, Cross, Waller, Skidmore, Moldenhauer and
Unknown Party.
Count 5, however, shall not proceed. The Complaint offers no basis for a claim against
staff of the Internal Affairs Unit or any other defendant based on an alleged failure to investigate
the April 8, 2014 incident at Plaintiff's urging. The failure to investigate a prisoner's complaints

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simply does not make an official liable for damages under § 1983. See George v. Smith, 507 F.3d
605, 609 (7th Cir.2007) (“Only persons who cause or participate in the violations are
responsible.”). Rather, the official must have personally participated in the constitutional
deprivation. Plaintiff’s Complaint does not suggest that members of the Internal Affairs Unit had
any personal involvement in the April 2014 incident. Therefore, Count 4 fails to state a claim
upon which relief may be granted and shall be dismissed without prejudice.
It should be noted that Plaintiff cannot pursue a claim for money damages against IDOC
as it is a state government agency. The Supreme Court has held that “neither a State nor its
officials acting in their official capacities are ‘persons' under § 1983.” Will v. Mich. Dep't of
State Police, 491 U.S. 58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th
Cir.2001) (Eleventh Amendment bars suits against states in federal court for money damages);
Billman v. Ind. Dep't of Corr., 56 F.3d 785, 788 (7th Cir.1995) (state Department of Corrections
is immune from suit by virtue of Eleventh Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d
425, 427 (7th Cir.1991) (same); Santiago v. Lane, 894 F.2d 219, 220 n. 3 (7th Cir. 1990) (same).
So far as Plaintiff seeks injunctive relief against at IDOC, however, Plaintiff shall be permitted to
proceed in that regard.
All claims asserted against Wexford also survive threshold review. Wexford is a
corporate entity and is therefore treated as a municipality for purposes of § 1983 liability. See
Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002). “[T]o maintain a §
1983 claim against a municipality, [a plaintiff] must establish the requisite culpability (a ‘policy
or custom’ attributable to municipal policymakers) and the requisite causation (the policy or
custom was the ‘moving force’ behind the constitutional deprivation).” Gable v. City of Chicago,
296 F.3d 531, 537 (7th Cir. 2002). Plaintiff implicates Wexford in, as a matter of policy,

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deliberately understaffing its health care unit in Menard, prohibiting all medical care during
lockdowns no matter the severity of an individual injury and requiring nurses to handle cases and
make decisions that are outside of their scope of professional competence. Plaintiff also alleges
that these policies caused his alleged constitutional injuries. Therefore, all claims against
Wexford survive preliminary review.
Disposition
IT IS ORDERED that Plaintiff may proceed on COUNTS 1, 2, 3, and 4 against
Defendants GODINEZ, IDOC, BARR, BUTLER, CARTER, HAMILTON, CROSS,
WALLER, SKIDMORE, MOLDENHAUR, TROST, WEXFORD, and UNKNOWN
PARTY.
IT IS FURTHER ORDERED that COUNT 5 is DISMISSED without prejudice.
Defendant INTERNAL AFFAIRS UNIT is DISMISSED without prejudice from this action.
IT IS FURTHER ORDERED that COUNTS 1 and 2 shall be SEVERED from this
action into a new case, which shall be CONSOLIDATED with Ross v. Gossett, Case No. 15-cv309-SMY-SCW for all further proceedings. Ross v. Gossett shall be the lead case. All future
pleadings shall be filed in Ross v. Gossett and contain case number 15-cv-309-SMY-SCW. The
Clerk of Court is DIRECTED to let the record in Ross v. Gossett reflect this consolidation. An
additional filing fee will not be assessed.
IT IS FURTHER ORDERED that, as to COUNTS 3 and 4, which shall proceed as
Case No. 16-cv-00130-SMY, the Clerk of Court shall prepare for Defendants GODINEZ,
IDOC, BARR, BUTLER, CARTER, HAMILTON, CROSS, WALLER, SKIDMORE,
MOLDENHAUR, WEXFORD, and TROST,: (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

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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.
IT IS FURTHER ORDERED that as to COUNTS 1 and 2 the Clerk of Court shall
prepare for Defendants IDOC, GODINEZ, BUTLER, and WEXFORD: (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, a copy of
this Memorandum and Order, and a copy of the complaint in Ross v. Gossett, Case No. 15-cv309-SMY-SCW 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.
Service shall not be made on Defendant UNKNOWN PARTY until such time as
Plaintiff has identified these defendants in the complaint by filing a motion to substitute
Defendant UNKNOWN PARTY with the names of these individuals in the caption and, where
applicable, throughout the complaint. Plaintiff is ADVISED that it is Plaintiff's responsibility to
provide the Court with the names and service addresses for these individuals.
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

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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 Williams for further pre-trial proceedings, including discovery aimed at
identifying Defendant UNKNOWN PARTYY and a determination on the pending motion for
recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams 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).

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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: March 21, 2016
s/ STACI M. YANDLE
STACI M. YANDLE
United States District Judge

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