Ellis v. Bell et al

Filing 12

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/28/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN K. ELLIS, # 01899-025,
Plaintiff,
vs.
ZELDA BELL
and USA,
Defendants.

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Case No. 15-cv-504-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff is a federal prisoner, currently incarcerated at the USP-Leavenworth, Kansas.
His claims arose while he was confined at the FCI-Greenville, Illinois (“Greenville”). He brings
this pro se action for alleged violations of his constitutional rights by a person acting under the
color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The
complaint also includes Federal Tort Claims against the United States. See 28 U.S.C. § 2671 et
seq. This case is now before the Court for a preliminary review of the complaint pursuant to 28
U.S.C. § 1915A.
According to his complaint, Plaintiff suffers from physical ailments that led to him being
declared handicapped by prison authorities, and he is confined to a wheelchair. An inmate
orderly was assigned to him to assist him in moving about the prison compound in June and July
2012 (Doc. 1, p. 3). Plaintiff was housed in Unit 1-A, which was not handicapped-accessible.
The other side of his housing unit (1-B), however, was equipped with handicapped-accessible
showers, phones, cells, and ramps.
Plaintiff made numerous requests to his counselor, Defendant Bell, to transfer him to the
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fully accessible “B” side, noting that as of June 25, 2012, another official (Harold Gillian) had
assigned Plaintiff there. Defendant Bell refused, however, to transfer Plaintiff. She told him that
she did not want to be bothered with cell-change requests from “white boys” such as Plaintiff
(Doc. 1, p. 4).
On or about July 7, 2012, Plaintiff walked with great difficulty to the non-handicappedaccessible shower in Unit 1-A. While showering, he slipped and fell, and because there was
nothing he could hold onto to catch or steady himself, he landed on his shoulder and fractured his
arm (Doc. 1, p. 4). The break required surgery to place screws and a plate to hold the bone in
place.
In order to cover up her refusal to place Plaintiff in the handicap-equipped housing area,
Defendant Bell falsely reported that Plaintiff was injured in a fight. As a result, Plaintiff was
placed in isolation for “several weeks,” during which he was not given adequate medication to
control his pain (Doc. 10, p. 2).
On July 31, 2012, the fracture was surgically repaired (Doc. 10, pp. 16-18). In his
exhibits, however, Plaintiff states that once it was determined that surgery was needed, prison
officials delayed the procedure for 13 days (Doc. 10, p. 2). Further, the surgeon determined in a
follow-up visit that the fracture still had not healed as of October 31, 2012. Prison officials
delayed additional follow-up care recommended at that time, until August 2013.

Plaintiff

continues to suffer from permanent injuries and limitations as a result of this injury.
Following his injury, Plaintiff sought to submit administrative remedy requests through
the prison’s grievance system, in preparation for filing suit. But Defendant Bell frustrated these
efforts by denying him forms, refusing to respond to his administrative remedy request, and
losing or destroying documents. Finally, to retaliate against Plaintiff for pursuing his legal

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claim, Defendant Bell transferred him to a prison in California, hundreds of miles away from his
family (Doc. 1, p. 5).
Plaintiff asserts five claims against Defendant Bell, including deliberate indifference,
failure to protect, equal protection, retaliation, and denial of access to the courts (Doc. 1, p. 6-8).
He enumerates three claims under the Federal Tort Claims Act (“FTCA”), for negligence,
inadequate medical care for his injury, and failure to follow policies of the Federal Bureau of
Prisons (“BOP”) (Doc. 1, pp. 8-9). He seeks compensatory and punitive damages.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
For ease of reference, the Court shall adopt Plaintiff’s designation of his claims into
Counts 1 through 8. 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 claim against Defendant Bell, for deliberate
indifference to his need for a transfer to a housing unit equipped with safety and
accessibility features for wheelchair-bound inmates;
Count 2: Eighth Amendment deliberate indifference claim against Defendant
Bell, for failing to protect him from the risk of falling;
Count 3: Fifth Amendment equal protection claim against Defendant Bell, for
denying Plaintiff a transfer to a handicap-accessible housing unit on account of
his race;
Count 4: First Amendment retaliation claim against Defendant Bell, for placing
Plaintiff in isolation and transferring him to a distant prison after he filed
grievances against her;
Count 5:

Fifth Amendment due process claim against Defendant Bell, for
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attempting to deny Plaintiff access to the courts by interfering with his efforts to
exhaust his administrative remedies;
Count 6: Claim against the United States under the FTCA, for negligence in
failing to place Plaintiff in a handicap-equipped housing unit;
Count 7: Claim against the United States under the FTCA, for failing to provide
timely and adequate medical care for Plaintiff’s arm injury;
Count 8: Claim against the United States under the FTCA for negligence in
failing to follow BOP Program Statements and policies regarding health services,
correctional procedures, unit control, and administrative remedies.
Plaintiff’s claims in Counts 1, 2, 3, and 5 shall proceed for further review. The claims in
Counts 4 and 6 do not survive scrutiny under § 1915A and shall be dismissed from the action.
Counts 1 and 2 – Deliberate Indifference
Although Plaintiff pleaded his Eighth Amendment claims in Counts 1 and 2 as separate
matters, they rest on the same factual allegations and shall be considered together.
In a case involving conditions of confinement in a prison, two elements are required to
establish a violation of the Eighth Amendment’s cruel and unusual punishments clause. First, an
objective element requires a showing that the conditions deny the inmate “the minimal civilized
measure of life’s necessities” such as food, medical care, sanitation, or physical safety, creating
an excessive risk to the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Rhodes v. Chapman, 452 U.S. 337, 346 (1981). In Plaintiff’s case, he alleges that he faced
extreme risks to his physical safety in his housing unit due to the lack of handicap-accessibility
features such as grab bars in the showers.
The second requirement is a subjective element, establishing a defendant’s culpable state
of mind, which is deliberate indifference to a substantial risk of serious harm to the inmate from
those conditions. Farmer, 511 U.S. at 837, 842. In other words, the defendant must be aware of
facts from which the inference could be drawn that a substantial risk exists, and he also must
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draw the inference. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Wilson v. Seiter,
501 U.S. 294, 303 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976); DelRaine v. Williford, 32
F.3d 1024, 1032 (7th Cir. 1994). In order to prevail on a deliberate indifference claim, the
plaintiff must show that the prison official acted or failed to act despite the official’s knowledge
of a substantial risk of serious harm. Farmer, 511 U.S. at 842. It is well-settled that mere
negligence is not enough. See, e.g., Davidson v. Cannon, 474 U.S. 344, 347-48 (1986).
Here, Plaintiff has alleged that he notified Defendant Bell that he had been approved for
transfer to the housing unit where his disability-related safety needs could be accommodated and
that he informed her of the risks he faced in the non-accessible unit. Knowing that Plaintiff was
at risk of harm, however, Defendant Bell refused to transfer him to the handicap-accessible unit.
At this stage, Plaintiff may proceed against Defendant Bell on Counts 1 and 2.
Count 3 – Equal Protection
Racial discrimination by state actors violates the Equal Protection Clause of the
Fourteenth Amendment unless it is narrowly tailored to serve a compelling state interest. See
DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). In a Bivens action, the same is true for
federal officials who discriminate on the basis of race. See Glaus v. Anderson, 408 F.3d 382,
386 (7th Cir. 2005) (a Bivens action is the federal equivalent of a § 1983 civil rights action). To
state an equal protection claim, a plaintiff must establish that a state or federal actor has
purposely treated him differently than persons of a different race. Id.
In this case, Plaintiff has alleged that Defendant Bell intentionally refused to honor his
housing reassignment to the handicap-accessible unit, because of his race. At this stage of the
litigation, he may also proceed with his equal protection claim in Count 3.

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Count 4 – Retaliation
Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680 F.3d 859,
866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857
F.2d 1139 (7th Cir. 1988). Furthermore, “[a]ll that need be specified is the bare minimum facts
necessary to put the defendant on notice of the claim so that he can file an answer.” Higgs v.
Carver, 286 F.3d 437, 439 (7th Cir. 2002). Naming the suit and the act of retaliation is all that is
necessary to state a claim of improper retaliation. Id. A complaint that provides a short, clear
statement of the relevant facts complies with the federal rules of civil procedure and thus cannot
be dismissed because it does not allege all facts necessary to clearly establish a valid claim. Id.
According to Plaintiff, when Defendant Bell learned that he was pursuing an
administrative complaint against her in preparation for a lawsuit over her refusal to place him in
the handicap-accessible housing unit, she retaliated against him by lying about the cause of his
injury, having him placed in isolation, and ultimately transferring him to another prison far
distant from his family members.
At issue here is whether Plaintiff experienced an adverse action that would likely deter
First Amendment activity in the future and whether the First Amendment activity was “at least a
motivating factor” in the Defendants’ decision to take the retaliatory action. Bridges v. Gilbert,
557 F.3d 541, 551 (7th Cir. 2009). This is a question that cannot be resolved at the pleading
stages of this case; thus Plaintiff may proceed with this claim as well.

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Dismissal of Count 5 – Access to Courts
Prisoners have a fundamental right of meaningful access to the courts. Bounds v. Smith,
430 U.S. 817 (1977). Violations of that right may be vindicated in federal court, e.g., in a civil
rights action pursuant to Bivens or 42 U.S.C. § 1983.
Plaintiff alleges that Defendant Bell intentionally tried to prevent him from completing
the administrative remedy process so that he would be unable to maintain a lawsuit. Even if this
is true, however, he has no independent civil rights claim unless Defendant Bell’s actions
resulted in a real or potential limitation on his access to the courts. Actual or threatened
detriment is an essential element of a constitutional claim for denial of access to the courts.
Howland v. Kilquist, 833 F.2d 639, 642-43 (7th Cir. 1987); Hossman v. Sprandlin, 812 F.2d
1019, 1021-22 (7th Cir. 1987). No such detriment is apparent here. Plaintiff has filed this
lawsuit in what appears to be a timely manner, and he states that he was successful in completing
the administrative remedy process despite Defendant Bell’s efforts to the contrary. As such, he
did not suffer any detriment to his ability to pursue the instant suit. Count 5 shall be dismissed
without prejudice.
Count 6 – Federal Tort Claim – Handicap-Accessible Housing & Inadequate Medical Care
The FTCA permits an individual to bring suit in federal court against the United
States for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under circumstances where
the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred. 28
U.S.C. § 1346(b)(1). Pursuant to this provision, federal inmates may bring suit
for injuries they sustain while incarcerated as a consequence of the negligence of
prison officials. United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed.
2d 805 (1963). However, the plaintiff may not bring such a suit unless he has first
presented his claim to the appropriate federal agency and that agency has denied
the claim. 28 U.S.C. § 2675(a).
Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003).
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Plaintiff indicates that he has submitted his FTCA claim to the Bureau of Prisons, and
that the claim has been denied (Doc. 1, p. 2). Taking this assertion as true, Plaintiff has complied
with the exhaustion requirement.
Plaintiff’s FTCA claim under Count 6 asserts that federal employees at Greenville had
the duty to house him in an area that was equipped to accommodate his disability-related needs,
in order to protect him from the danger that he would injure himself in the absence of those
accommodations (Doc. 1, p. 8). As a result of the failure to transfer him to the handicapaccessible housing unit, Plaintiff was injured.
At this early stage, Plaintiff has sufficiently pleaded a negligence claim in Count 6 under
the FTCA that may proceed for further consideration.
Count 7 – Federal Tort Claim – Inadequate Medical Care
Plaintiff’s second FTCA claim concerns the medical care rendered after he sustained the
broken arm in July 2012. As with Count 6, he states that he has exhausted his administrative
remedies with reference to this claim. He asserts that Greenville officials did not provide him
with adequate pain relief, delayed treatment for the fracture, and provided inadequate care
particularly for the period following his surgery.

Because of these failures, Plaintiff has

sustained permanent physical damage. Under the FTCA, this claim for medical negligence
and/or malpractice is subject to the requirements of the state law where the claim arose.
Under Illinois law, a Plaintiff “[i]n any action, whether in tort, contract or otherwise, in
which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other
healing art malpractice,” must file an affidavit along with the complaint, declaring one of the
following: 1) that the affiant has consulted and reviewed the facts of the case with a qualified
health professional who has reviewed the claim and made a written report that the claim is

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reasonable and meritorious (and the written report must be attached to the affidavit); 2) that the
affiant was unable to obtain such a consultation before the expiration of the statute of limitations,
and affiant has not previously voluntarily dismissed an action based on the same claim (and in
this case, the required written report shall be filed within 90 days after the filing of the
complaint); or 3) that the plaintiff has made a request for records but the respondent has not
complied within 60 days of receipt of the request (and in this case the written report shall be filed
within 90 days of receipt of the records). See 735 ILL. COMP. STAT. §5/2-622(a) (West 2013). 1
A separate affidavit and report shall be filed as to each defendant. See 735 ILL. COMP. STAT.
§5/2-622(b). Failure to file the required certificate is grounds for dismissal of the claim. See 735
ILL. COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000).
Plaintiff has submitted his affidavit, stating that he had been unable to obtain his full
medical records from Greenville before filing suit, but including several documents indicating
that he was in need of additional care and that he had suffered permanent injuries (Doc. 1-1). He
further states that he is attempting to find an expert to provide a report in compliance with § 5/2622.
At this stage, Plaintiff’s statement of claim and affidavit are sufficient for him to proceed
with his FTCA claim in Count 7. This medical claim may be subject to dismissal, however, if
he is unable to obtain the required report.

1

The August 25, 2005, amendments to a prior version of this statute were held to be unconstitutional in
2010. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010) (Holding P.A. 94-677 to be
unconstitutional in its entirety). After Lebron, the previous version of the statute continued in effect. See
Hahn v. Walsh, 686 F. Supp. 2d 829, 832 n.1 (C.D. Ill. 2010). The Illinois legislature re-enacted and
amended 735 ILL. COMP. STAT. §5/2-622 effective January 18, 2013 (P.A. 97-1145), to remove any
question as to the validity of this section. See notes on Validity of 735 ILL. COMP. STAT. §5/2-622 (West
2013).

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Dismissal of Count 8 – Federal Tort Claim – Failure to Follow Prison Policies
This final claim is based on Plaintiff’s assertion that Greenville officials owed him a duty
to follow several BOP program statements governing health services, correctional procedures,
unit control, and the administrative remedy process. Had they complied with these program
statements, he claims that he would not have been injured. These program statements, however,
do not support a distinct claim actionable under the FTCA.
The FTCA, as discussed above under Count 6, allows an individual to bring suit for
damages caused by the negligent acts of a government employee “under circumstances where the
United States, if a private person, would be liable to the claimant[.]” Palay v. United States, 349
F.3d 418, 425 (7th Cir. 2003). A private person has no duty to comply with federal regulations
such as the BOP program statements referenced by Plaintiff, thus the failure to follow these rules
does not give rise to an FTCA claim.
The claim Plaintiff labeled as Count 8 is based on the same events that gave rise to
Counts 6 and 7, both of which assert negligence on the part of federal officials. It is possible that
the alleged non-compliance with BOP policies may be relevant to the adjudication of either of
these negligence claims, however, Plaintiff cannot maintain a distinct FTCA claim based on this
non-compliance. The claim in Count 8 shall therefore be dismissed with prejudice.
Pending Motion
The motion for service of process at government expense (Doc. 3) is GRANTED;
service shall be ordered below.
Disposition
COUNT 5 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted. COUNT 8 is DISMISSED with prejudice for failure to state a claim

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upon which relief may be granted.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and
form USM-285 for service of process on DEFENDANT BELL; the Clerk shall issue the
completed summons. The United States Marshal SHALL serve DEFENDANT BELL pursuant
to Rule 4(e) of the Federal Rules of Civil Procedure. 2 All costs of service shall be advanced by
the United States, and the Clerk shall provide all necessary materials and copies to the United
States Marshals Service.
The Clerk of Court is further DIRECTED to complete, on Plaintiff’s behalf, a summons
for service of process on the UNITED STATES; the Clerk shall issue the completed summons.
Pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally deliver to or send
by registered or certified mail addressed to the civil-process clerk at the office of the United
States Attorney for the Southern District of Illinois a copy of the summons, the complaint, and
this Memorandum and Order; and (2) send by registered or certified mail to the Attorney General
of the United States at Washington, D.C., a copy of the summons, the complaint, and this
Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon Defendant Bell (or upon
defense counsel once an appearance is entered), and on the United States Attorney for the
Southern District of Illinois a copy of every pleading or other document submitted for
consideration by this Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date that a true and correct copy of the document was mailed to the United States
2

Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a person whose
waiver has been filed – may be served in a judicial district of the United States by: (1) following state law
for serving a summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the
summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by appointment or law to receive service of process.”

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Attorney. Any paper received by a district judge or a magistrate judge which has not been filed
with the Clerk or which 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.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson 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 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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: May 28, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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