Thompson v. Illinois Department of Corrections et al

Filing 15

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Donald G. Wilkerson, Michael Atchinson and C/O Smith added. Granting 14 MOTION to Amend/Correct 13 Amended Complaint filed by Dennis Thompson.Signed by Judge J. Phil Gilbert on 2/11/2016. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENNIS THOMPSON #B-67474,
Plaintiff,
vs.
ILLINOIS DEPARTMENT OF
CORRECTIONS DIRECTOR,
MICHAEL ATCHINSON,
RICHARD HARRINGTON,
KIMBERLY BUTLER,
JOHN TROST, C/O B. SMITH,
and JACQUELINE LASHBROOK,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 15-cv-00850-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is now before the Court for consideration of a second amended complaint
filed by Plaintiff Dennis Thompson on January 11, 2016. 1

Plaintiff, who is currently

incarcerated at Menard Correctional Center (“Menard”), brings this action pursuant to 42 U.S.C.
§ 1983, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and
the Rehabilitation Act, 29 U.S.C. §§ 794-94e. Plaintiff claims that officials at Menard have
denied him adequate medical care and accommodations for his eating disorder and weight-

1

This Court dismissed Plaintiff’s original complaint (Doc. 1) on September 11, 2015. (Doc. 10).
Plaintiff was granted leave to file an amended complaint on or before October 14, 2015. (Id.). He filed a
first amended complaint (Doc. 13) prior to that deadline, but sought leave to amend the first amended
complaint (Doc. 14) after suffering additional injuries that are related to his claims in this action. Given
the early stage of this litigation and the fact that the defendants have not yet been served, the Court shall
GRANT the motion. The Clerk will be DIRECTED to file the proposed pleading as the “Second
Amended Complaint” in CM/ECF. The second amended complaint supersedes and replaces the first
amended complaint, rendering it VOID. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632,
638 n. 1 (7th Cir. 2004).
Page 1 of 21

related health problems. They have also retaliated against him for filing lawsuits to address these
issues.
Plaintiff now sues John Doe (unknown Illinois Department of Corrections’ (“IDOC”)
director), Michael Atchinson (IDOC deputy director), Richard Harrington (former warden),
Jacqueline Lashbrook (former warden), Kimberly Butler (current warden), John Trost (doctor),
and B. Smith (correctional officer) for violating his rights under the First Amendment, Eighth
Amendment, ADA, and Rehabilitation Act. He seeks monetary damages and injunctive relief.
Merits Review Under 28 U.S.C. § 1915A
This matter is now before the Court for a preliminary review of the second amended
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).
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

Page 2 of 21

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 threshold review under this
standard.
Second Amended Complaint
According to the second amended complaint, Plaintiff suffers from an eating disorder.
He is “addicted to food and sugar” and has experienced a dramatic weight gain during the past
two years. Plaintiff’s weight has increased from 280 pounds to 350 pounds. He is morbidly
obese.
Plaintiff has developed weight-related health issues that include degenerative joint and
disc disease, chronic back pain, sciatic nerve pain, edema, and loss of mobility. He can only
stand for thirty seconds at a time without bending over. He has difficulty bathing and sleeping.
Plaintiff requires assistance from other inmates when walking to the chow hall or library. He has
been issued “slow walk, low bunk, and front cuff permits.” Plaintiff claims that this is not
enough. He also needs back surgery and more effective pain medication. 2
Although Doctor Trost agrees that Plaintiff needs back surgery, he will not refer Plaintiff
to a specialist. The doctor instead recommends that Plaintiff exercise as much and as often as
possible. Plaintiff complains that he is unable to do so because his cell in the North Two Cell

2

The pleading says nothing about a special diet.
Page 3 of 21

House is too small. Plaintiff cannot perform the sit-ups, push-ups, walking, and range of motion
exercises that Doctor Trost recommends. 3
When he tried to perform neck and shoulder exercises to increase his range of motion,
Plaintiff hit his hand on the metal bunk bed and cut his finger. Doctor Trost treated the injury.
However, Plaintiff fears that he will sustain additional injuries in his cramped cell, if he remains
in the North Two Cell House. Plaintiff worries that he will be “fatally injured” by his television,
which sits on his bed. He describes the device as a “bubble hard thick glass screened model” and
alleges that it could fatally injure him if he kicks through the screen while sleeping.
Plaintiff’s problems will be solved by transferring him to the South Cell House; he makes it clear
that no other housing arrangement, or solution, will do.
Plaintiff contends that Defendants Harrington, Lashbrook, and Butler moved him to the
North Two Cell House on or around November 19, 2013, in retaliation for filing lawsuits against
prison officials. They have since refused to transfer him to a bigger cell in a different housing
unit for the same reason. The cells in the North Two Cell House are smaller, house inmates with
higher aggression levels, 4 and offer fewer privileges.
Plaintiff was temporarily moved from his cell on December 29, 2015, and he also
complains about this housing arrangement. When heavy rainfalls caused the Mississippi River to
rise and threaten to flood Menard, Defendants Atchinson, Butler, and Smith decided to move
Plaintiff and numerous other inmates to Menard’s gym. For a period of five days, Plaintiff was
required to sleep on the gym floor, bathe in cold water, and share two porcelain toilets with thirty
inmates. Female prison guards and “tours” of females observed Plaintiff using the toilet and
bathing. He had to sleep beside a 450-pound inmate, who was immobile and could have (but did
3

The pleading also mentions nothing about exercise opportunities that are available to Plaintiff outside of
his cell, in the gym, prison yard, or elsewhere.
4
Plaintiff states that he is considered a low aggression inmate and has held this status for ten years.
Page 4 of 21

not) defecate on Plaintiff. On January 2, 2016, one of the two porcelain toilets in the gym broke
under Plaintiff’s weight, spilling him and his feces onto the floor. Plaintiff injured his wrist,
hand, and fingers in the process. He was humiliated by the incident.
Plaintiff now wishes to transfer to another cell house with larger cells, more privileges,
and less aggressive inmates. Warden Butler told him that he would not be transferred, unless
Doctor Trost specifically asked her to do so for medical reasons.

When Plaintiff asked

Doctor Trost to make this recommendation, the doctor laughed and stated, “your kidding, right
Thompson. The warden is the boss. She don’t need me to call and tell her nothing. . . She can
take one look at you and see that you can not exercise in North two cells and move you.”
Plaintiff sues the IDOC Director, Deputy Director Atchinson, Warden Harrington,
Warden Lashbrook, Warden Butler, Doctor Trost, and C/O Smith for violating his rights under
the First Amendment, Eighth Amendment, ADA, and Rehabilitation Act. He seeks monetary
damages and injunctive relief, including an order referring him to an outside back specialist and
an order transferring him back to the South Cell House. In addition, Plaintiff seeks a temporary
restraining order prohibiting Menard officials from employing “retaliatory gamesmanship” by
transferring him to any cell house other than the one he now requests while the action is pending.
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 organize the claims in Plaintiff’s second amended complaint into the
following enumerated 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.

Page 5 of 21

Count 1:

Defendants Harrington, Lashbrook, Butler, and Trost violated
Plaintiff’s rights under the Eighth Amendment by providing
him with inadequate medical care for his degenerative joint
and disc disease and obesity.

Count 2:

Defendants Harrington, Lashbrook, Butler, and Trost
exhibited deliberate indifference to Plaintiff’s cut finger, in
violation of the Eighth Amendment.

Count 3:

Defendants Harrington, Lashbrook, and Butler retaliated
against Plaintiff for filing lawsuits by moving him to and
refusing to transfer him from the North Two Cell House,
which has smaller cells, offers fewer privileges, and houses
higher aggression inmates than other cell houses.

Count 4:

Defendants IDOC Director and Butler’s policy, custom, or
practice of making housing decisions without input from the
medical staff violates Plaintiff’s rights under the Eighth
Amendment.

Count 5:

Defendants Harrington, Lashbrook, Butler, and Trost violated
Plaintiff’s rights under the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq., and/or Rehabilitation Act, 29 U.S.C.
§§ 794-94e, by denying him accommodations for his
degenerative joint and disc disease and his obesity by placing
him in a larger cell.

Count 6:

Defendants Harrington, Lashbrook, Butler, and Trost
subjected Plaintiff to unconstitutional conditions of
confinement, in violation of the Eighth Amendment, when they
assigned him to the North Two Cell House.

Count 7:

Defendants Atchinson, Butler, and Smith subjected Plaintiff to
unconstitutional conditions of confinement, in violation of the
Eighth Amendment, when they housed him in the gym for five
days in anticipation of a flood on December 29, 2015.

Count 8:

Wexford provides no legitimate care or counseling for inmates
with eating disorders, in violation of their right to receive
adequate medical care under the Eighth Amendment.

As discussed in more detail below, Count 1 shall proceed against Doctor Trost and
Warden Butler (official capacity only); Count 2 shall be dismissed with prejudice; Count 3 shall
proceed against Wardens Harrington, Lashbrook, and Butler; Count 4 shall proceed against the
Page 6 of 21

IDOC Director and Warden Butler; Count 5 shall proceed against the IDOC Director (official
capacity only); Count 6 shall proceed against Doctor Trost and Wardens Harrington, Lashbrook,
and Butler; Count 7 shall proceed against Deputy Director Atchinson, Warden Butler, and
C/O Smith; and Count 8 shall be dismissed without prejudice.
Deliberate Indifference to Medical Needs Claims (Counts 1, 2, and 8)
The Eighth Amendment “imposes a duty on government officials to provide medical care
to prisoners.” Townsend v. Cooper, 759 F.3d 678, 689 (7th Cir. 2014) (citing Estelle v. Gamble,
429 U.S. 97, 104-05 (1976)). Prison officials violate the Constitution when they are deliberately
indifferent to a prisoner’s serious medical needs. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir.
2011) (citing Estelle, 429 U.S. at 104). “A claim of deliberate indifference to a serious medical
need contains both an objective and a subjective component.

To satisfy the objective

component, a prisoner must demonstrate that his medical condition is ‘objectively sufficiently
serious.’” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1970)). To satisfy the subjective component, a prisoner must demonstrate
that prison officials acted with a “sufficiently culpable state of mind,” which is deliberate
indifference. Townsend, 759 F.3d at 689 (citing Farmer, 511 U.S. at 834; Greeno, 414 F.3d at
653). The prison official must “know of and disregard an excessive risk to inmate health.”
Greeno, 411 F.3d at 653.

Against this backdrop, the Court will consider each of

Plaintiff’s claims that the defendants were deliberately indifferent to his back problems and
obesity (Count 1), his cut finger (Count 2), and his need for food addiction counseling
(Count 8).

Page 7 of 21

Count 1 – Back Problems and Obesity
Plaintiff claims that his back problems 5 and obesity are both serious medical conditions.
A medical condition is considered serious if it has been diagnosed by a physician as requiring
treatment or would be obvious to a layperson. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.
2014) (citing Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009)). Doctor Trost allegedly
diagnosed both conditions as being serious and requiring medical treatment. For screening
purposes, the objective component of this claim is satisfied. The question becomes whether the
defendants responded to these medical conditions with deliberate indifference.
A.

Back Problems
The allegations support a claim of deliberate indifference against Doctor Trost, but no

other defendants. Doctor Trost allegedly told Plaintiff that he needs back surgery, but refused to
refer him to a specialist or provide him with adequate pain medication. Meanwhile, Plaintiff’s
condition grew worse. Under the circumstances, the Court cannot dismiss the back injury claim
in Count 1 against Doctor Trost.
However, this claim cannot proceed against Wardens Harrington, Lashbrook, and Butler.
The wardens had no personal involvement in any treatment decisions for Plaintiff’s back.
They appear to have been named in connection with this claim because of their supervisory roles
in the prison. Section 1983 does not establish a system of vicarious, or supervisory, liability.
Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009). Liability hinges on each defendant’s
“knowledge and actions, not on the knowledge and actions of persons they supervise.” Id. at
594. Because Plaintiff’s theory of liability against these defendants is rooted in the doctrine of
respondeat superior, Count 1 cannot proceed against them.
5

For purposes of this screening order, “back problems” encompass the following: degenerative joint and
disc disease, lower back pain, sciatic nerve pain, loss of mobility, and related edema.
Page 8 of 21

In summary, that portion of Count 1 addressing Plaintiff’s back problems shall receive
further review against Doctor Trost. Because Plaintiff seeks a referral to a back specialist, the
Court will allow the claim to proceed against Warden Butler, in her official capacity, for the sole
purpose of carrying out any injunctive relief that is ordered. Gonzalez v. Feinerman, 663 F.3d
311, 315 (7th Cir. 2011) (proper defendant in a claim for injunctive relief is the government
official responsible for ensuring any injunctive relief is carried out). However, Count 1 shall be
dismissed without prejudice against all other defendants.
B.

Obesity
The allegations do not suggest that any of the defendants responded to Plaintiff’s obesity

with deliberate indifference. After identifying Plaintiff’s weight as a serious medical condition,
Doctor Trost provided him with a number of exercises to perform as often as possible.
Plaintiff was also issued “slow walk, low bunk, and front cuff permits.”

Doctor Trost’s

recommendation to exercise certainly does not amount to deliberate indifference. One would
expect a doctor to make this recommendation.
Plaintiff does not disagree with the treatment plan, and it would make no difference if he
did. Deliberate indifference does not arise from a mere disagreement with the form of treatment
an inmate receives. Inmates are not entitled to demand specific treatment or even “the best care
possible.” Edgar v. Forbes, 112 F.3d 262, 267 (7th Cir. 1997). Under the Eighth Amendment,
an inmate is “entitled to reasonable measures to meet a substantial risk of serious harm” to that
inmate.

Id.

Moreover, “[m]ere dissatisfaction or disagreement with a doctor’s course of

treatment is generally insufficient” to support a deliberate indifference claim.

Johnson v.

Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006); Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.
1996). Deliberate indifference requires inmates to clear a higher threshold, and the second

Page 9 of 21

amended complaint does not clear this hurdle. The allegations do not suggest that the defendants
exhibited deliberate indifference toward Plaintiff’s obesity. For this reason, the obesity claim in
Count 1 does not survive preliminary screening and shall be dismissed without prejudice.
This claim is more appropriately addressed as one for unconstitutional conditions of
confinement. In essence, it arises from Plaintiff’s housing arrangement, not the denial of proper
medical care for his obesity. Count 6 addresses his conditions of confinement claim. The Court
will discuss this claim in more detail below.
Count 2 – Cut Finger
The second amended complaint supports no claim against the defendants for Plaintiff’s
cut finger. Plaintiff allegedly suffered a “serious” cut when performing his range of motion
exercises in the cell, and Doctor Trost treated the wound. These allegations satisfy neither
component of his Eighth Amendment medical needs claim.
As for the objective component, Plaintiff offers only vague and conclusory allegations
regarding the seriousness of the injury. He states that the cut on his finger was “serious.”
The Court cannot accept “as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” See Brooks, 578 F.3d at 581. The objective component of this
claim is not satisfied.
Further, no allegations suggest that anyone responded with deliberate indifference.
Plaintiff alleges that Doctor Trost treated the injury. He does not maintain that the treatment was
inadequate, ineffective, or delayed. Under the circumstances, Count 2 shall be dismissed with
prejudice against all of the defendants.

Page 10 of 21

Count 8 – Food Addiction Counseling
Plaintiff’s claim in Count 8 against Wexford for failing to make food addiction
counseling available to him must be dismissed without prejudice. Plaintiff names Wexford in
connection with this claim, but Wexford is not listed as a defendant in the caption of the second
amended complaint. When parties are not identified as defendants in the caption, this Court will
not treat them as parties to the action, and any claims against them should be considered
dismissed without prejudice. See Fed. R. Civ. P. 10(a) (noting that the title of the complaint
“must name all the parties”); Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005)
(holding that to be properly considered a party, a defendant must be “specif]ied] in the caption”).
Count 8 shall be dismissed without prejudice.
Conditions of Confinement Claims (Counts 4, 6, 7)
The Eighth Amendment also protects prisoners from conditions of confinement that pose
a substantial risk of serious harm to an inmate’s health and safety. Berry v. Peterman, 604 F.3d
435, 439 (7th Cir. 2010); Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir.
2012). Prisoners are entitled to confinement under humane conditions that provide for their
“basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Farmer, 511 U.S.
at 832. A prison official may be liable for deliberate indifference “only if he knows that inmates
face a substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Farmer, 511 U.S. at 847. “[T]he official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. at 842; James v. Milwaukee Cnty., 956 F.2d 696, 700 (7th Cir.
1992); Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002). Against this backdrop, the Court
will consider Plaintiff’s claim that his Eighth Amendment rights have been violated by the

Page 11 of 21

manner in which housing decisions are made at Menard (Count 4), by his placement in the
North Two Cell House (Count 6), and by his placement in the gym (Count 7).
Count 4 – Housing Decisions
Plaintiff alleges that the IDOC Director and Warden Butler are responsible for a policy,
practice, or custom of making inmate housing decisions without input from medical staff, in
violation of his Eighth Amendment rights. A policy, custom, or practice that results in a
constitutional deprivation can give rise to liability, if it was the driving force behind the
deprivation. According to Plaintiff, this policy resulted in his continued placement in a cramped
cell and a violation of his Eighth Amendment rights. Count 4 shall receive further review
against the IDOC Director and Warden Butler.

Plaintiff names no other defendants in

connection with this claim, and it is considered dismissed with prejudice against them.
Count 6 – North Two Cell House
Plaintiff also alleges that the defendants subjected him to unconstitutional conditions of
confinement when they placed him in a cell in the North Two Cell House that was too small for
exercise. Inmates have been allowed to proceed on claims for unconstitutional conditions of
confinement, when they complain of cramped living quarters and inadequate exercise
opportunities. Turley v. Rednour, 729 F.3d 645, 652 (7th Cir. 2013) (citing Antonelli v. Sheahan,
81 F.3d 1422, 1432 (7th Cir. 1996) (viable denial of exercise claim found where prisoner was
housed in a cramped cell with “no room” to exercise and “not permitted to recreate ‘for periods
of up to seven weeks in succession’” and, at most, was called “once every two weeks for
sessions of no longer than one hour at one time”)). The Seventh Circuit has explained that the
“lack of exercise could rise to a constitutional violation ‘[w]here movement is denied and
muscles are allowed to atrophy, (and) the health of the individual is threatened.’” Harris v.

Page 12 of 21

Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (quoting French v. Owens, 777 F.2d 1250, 1255
(7th Cir. 1985)).
Plaintiff’s claim barely passes muster. He does not describe what opportunities he had to
exercise outside of his cell. He mentions nothing about the denial of yard privileges, the lack of
gym access, etc. Even so, the Court cannot dismiss Count 6.
According to the allegations, Doctor Trost instructed Plaintiff to exercise as much as
possible.

Plaintiff claims that he cannot exercise at all in his cell, and Doctor Trost and

Wardens Harrington, Lashbrook, and Butler know this. His weight has increased dramatically
(from 280 to 350 pounds) since his transfer to the North Two Cell House. He cannot stand
without bending over. His health has generally declined.
Whether Plaintiff has adequate opportunities to exercise outside of his cell remains to be
seen. But given the doctor’s special instructions to exercise as much as possible and Plaintiff’s
deteriorating health, the Court cannot dismiss Count 6 against Defendants Trost, Harrington,
Lashbrook, or Butler. Plaintiff names no other defendants in connection with this claim, and it is
considered dismissed without prejudice against them.
Count 7 - Gym
Plaintiff also claims that he was subjected to unconstitutional conditions of confinement
in the gym, when he was housed there for five days beginning on December 29, 2015.
Plaintiff slept on the gym floor, bathed in cold water, and shared two porcelain toilets with thirty
inmates. One of these toilets broke under his weight—something he warned the defendants
would occur based on a prior experience. In addition, female prison guards and “tours” of
females observed him using the toilet and bathing. Plaintiff was allegedly injured and humiliated
by this experience.

Page 13 of 21

Count 7 passes preliminary review and shall proceed against Deputy Director Atchinson,
Warden Butler, and C/O Smith. See Courtney v. Devore, 595 Fed. Appx. 618 (7th Cir. 2014)
(cross-sex monitoring of bathroom activity may violate the Eighth Amendment); Rhodes,
452 U.S. at 347 (“Adequate . . . facilities to wash and use the toilet are among the ‘minimal
civilized measures of life’s necessities’ that must be afforded prisoners.”). Because Plaintiff
names only Deputy Director Atchinson, Warden Butler, and C/O Smith in connection with the
claim, it is considered dismissed without prejudice against all other defendants. The Court takes
no position regarding the ultimate merits of this claim or the exhaustion of administrative
remedies with respect to it.
Count 3 – Retaliation
Plaintiff

shall

be

allowed

to

proceed

with

his

retaliation

claim

against

Wardens Harrington, Lashbrook, and Butler. In the prison context, where an inmate is alleging
retaliation, the inmate must identify the reasons for the retaliation, as well as “the act or acts
claimed to have constituted retaliation,” so as to put those charged with the retaliation on notice
of the claim(s). Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). The Plaintiff must have
engaged in some protected First Amendment activity (for example, filing a grievance or
otherwise complaining about conditions of confinement), experienced an adverse action that
would likely deter such protected activity in the future, and must allege that the protected activity
was “at least a motivating factor” in the defendants’ decision to take the retaliatory action.
Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009). The inmate need not plead facts to
establish the claim beyond doubt, but need only provide the bare essentials of the claim, and in a
claim for retaliation the reason for the retaliation and the acts taken in an effort to retaliate
suffice. Higgs, 286 F.3d at 439.

Page 14 of 21

In this case, Plaintiff alleges that Wardens Harrington and Lashbrook made the decision
to transfer him to the North Two Cell House because he filed too many lawsuits, and
Warden Butler refused to move him out of the unit for the same reason. Prison officials may not
retaliate against an inmate for exercising his First Amendment rights, even if their actions would
not independently violate the Constitution. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000)
(“a prison official may not retaliate against a prisoner because that prisoner filed a grievance”);
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (retaliatory transfer); Higgason v. Farley,
83 F.3d 807, 810 (7th Cir. 1996) (retaliation for filing lawsuit); Murphy v. Lane, 833 F.2d 106,
108-09 (7th Cir. 1987) (per curiam) (retaliation for filing suit). The chronology of events
presents a colorable claim of retaliation against Defendants Harrington, Lashbrook, and Butler.
Therefore, the Court is unable to dismiss Count 3 against these defendants. No other defendants
are mentioned in connection with this claim, and it is considered dismissed without prejudice
against them.
Count 5 - ADA/Rehabilitation Act
At this early stage in litigation, the Court will also allow Plaintiff’s ADA and
Rehabilitation Act claim to proceed. This claim arises from the fact that Plaintiff was denied
proper accommodations for his disability when he was placed in a cell that was too small for
exercise. Title II of 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.

The Rehabilitation Act also 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. Wagoner v. Lemmon, 778 F.3d 586 (7th Cir.

Page 15 of 21

2015). In this particular suit, the analysis under the ADA and Rehabilitation Act 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. Id. at 592 (citing Jaros v. Illinois Dep’t of Corr.,
684 F.3d 667, 671-72 (7th Cir. 2012) (citing 29 U.S.C. § 705(2)(B)).
Standing alone, Plaintiff’s morbid obesity may not render him disabled under the Acts.
See Revolinski v. Nat’l Railroad Passenger Corp. & Amtrak, 2010 WL 2606316 (E.D. Wis.
2010) (parties agreed that obesity may be considered a disability for purposes of the Acts only in
the “rare case where the obesity is caused by a physiological disorder”) (citations omitted).
But this is not the only medical condition described in the second amended complaint.
Plaintiff also alleges that he suffers from serious back problems that are linked to his obesity.
Each condition exacerbates the other. These allegations suggest at this early stage that Plaintiff
is disabled under the ADA and Rehabilitation Act.
The only question, then, is whether he has been denied access to programs, activities, or
services at the prison. Plaintiff claims that he has. Because of his small cell, Plaintiff is
absolutely unable to exercise. The defendants know this and will not move him to a larger cell.
“Refusing to make reasonable accommodations is tantamount to denying access.” Jaros, 684
F.3d at 672. The Court will allow the ADA and Rehabilitation Act claim to proceed.
However, Count 5 cannot proceed against the individual defendants.

Individual

employees of the IDOC cannot be sued under the ADA or Rehabilitation Act. Id. 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 the unknown IDOC
Director as one of the defendants in this action. Plaintiff shall be allowed to proceed with

Page 16 of 21

Count 5 against the IDOC Director, in his or her official capacity. This claim shall be dismissed
with prejudice against the IDOC Director, in his or her individual capacity, and against all other
defendants, in their individual and official capacities.
Request for Interim Relief
In the second amended complaint, Plaintiff mentions that he still wants a temporary
restraining

order

(“TRO”)

prohibiting

the

defendants

from

employing

“retaliatory

gamesmanship” by transferring him to any cell house other than the one he now requests in the
South Cell House. Plaintiff included a similar request in his original complaint, and the Court
denied it. (Doc. 6).
Plaintiff’s latest request for a TRO is denied for the same reasons the Court denied it the
first time. A Court may not issue a TRO unless “specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition.” See Fed. R. Civ. P. 65(b)(1)(A).
The transfer described in the second amended complaint occurred in 2013. Plaintiff describes no
threats by the defendants to move him to the East Cell House, West Cell House, or anywhere
else. And, at this point, the Court lacks sufficient information to conclude that an immediate
transfer to the South Cell House is warranted. Plaintiff’s fear of a retaliatory transfer is merely
speculative. The request for a TRO on this basis is DENIED.
In the second amended complaint, Plaintiff also requests “injunctive relief,” in the form
of an order referring him to an outside back specialist and an order transferring him back to the
South Cell House. In conjunction with these requests, he did not ask for a TRO or a preliminary
injunction. He did not refer to Rule 65(a) or (b) of the Federal Rules of Civil Procedure.
The Court does not construe his request for “injunctive relief” in the second amended complaint

Page 17 of 21

as a request for immediate relief. Should Plaintiff wish to request a TRO or a preliminary
injunction, he should file a separate motion pursuant to Rule 65(a) or (b) indicating the
exact form of relief he seeks, the reasons why he seeks said relief, and the factual
allegations supporting his request. He may do so at any time during the pending action.
Disposition
IT IS HEREBY ORDERED that the motion to amend/correct amended complaint
(Doc. 14) is GRANTED.

The Clerk is DIRECTED to file the proposed pleading as the

“Second Amended Complaint” in CM/ECF. The Clerk is also DIRECTED to ADD Defendants
MICHAEL ATCHINSON and C/O SMITH as parties to this action on the docket sheet in
CM/ECF.
IT IS ORDERED that the second amended complaint supersedes and replaces the
amended complaint (Doc. 13), rendering it VOID.
IT IS ORDERED that COUNT 2 is DISMISSED with prejudice for failure to state a
claim upon which relief may be granted, and COUNT 8 is DISMISSED without prejudice for
the same reason.
IT IS ORDERED that the back problems claim in COUNT 1 will proceed against
Defendant TROST and BUTLER (official capacity only). All other aspects of COUNT 1 are
DISMISSED without prejudice against the defendants for failure to state a claim upon which
relief may be granted.
IT IS ORDERED that COUNT 3 will proceed against Defendants HARRINGTON,
LASHBROOK, and BUTLER. This claim is DISMISSED without prejudice against all other
defendants for failure to state a claim upon which relief may be granted.
IT IS ORDERED that COUNT 4 will proceed against Defendant IDOC DIRECTOR

Page 18 of 21

and BUTLER. This claim is DISMISSED with prejudice against all other defendants for failure
to state a claim upon which relief may be granted.
IT IS ORDERED that COUNT 5 will proceed against Defendant IDOC DIRECTOR
(official capacity only). This claim is DISMISSED with prejudice against Defendant IDOC
Director (individual capacity only) and all other defendants for failure to state a claim upon
which relief may be granted
IT IS ORDERED that COUNT 6 will proceed against Defendants TROST,
HARRINGTON, LASHBROOK, and BUTLER.

This claim is DISMISSED without

prejudice against all other defendants for failure to state a claim upon which relief may be
granted.
IT IS ORDERED that COUNT 7 will proceed against Defendants ATCHINSON,
BUTLER, and SMITH.

This claim is DISMISSED without prejudice against all other

defendants for failure to state a claim upon which relief may be granted.
With respect to COUNTS 1, 3, 4, 5, 6, and 7, the Clerk of Court shall prepare for
DEFENDANTS IDOC DIRECTOR, TROST, HARRINGTON, LASHBROOK, BUTLER,
ATCHINSON, and SMITH: (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.

Page 19 of 21

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
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.

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

Page 20 of 21

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: February 11, 2016
s/J. Phil Gilbert
U.S. District Judge

Page 21 of 21