Tolliver v. Wexford Health Sources, Inc. et al

Filing 82

ORDER as to Defendant's Motion to Dismiss (Doc. 38 ). Signed by Judge Staci M. Yandle on 12/2/2016. (tfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JONATHAN TOLLIVER, R05836,
Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC.,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 3:16-cv-00130-SMY-RJD

ORDER
Before the Court is Defendant Illinois Department of Corrections’ (“IDOC”) Motion to
Dismiss (Doc. 38). This is a prisoner civil rights action in which Plaintiff Jonathan Tolliver
asserts that his constitutional rights were violated at Menard Correctional Center. In 2014, the
“Orange Crush” IDOC tactical team conducted a shakedown (inspection) of the facility. Tolliver
alleges that he was subjected to excessive force during the shakedown and that he was provided
with inadequate medical treatment for his resulting injuries. The excessive force allegations were
severed and consolidated into a separate case, see Ross v. Gossett et al, Case No. 3:15-cv-00309SMY-SCW (S.D. Ill.). Tolliver proceeds solely in this matter on his Eighth Amendment
deliberate indifference to medical needs claims.1
Defendant IDOC now seeks dismissal. Tolliver was allowed to proceed against the IDOC
solely for the purposes of injunctive relief, but the IDOC correctly notes that it is not the proper
defendant. When a prisoner seeks injunctive relief, the proper defendant is the warden of the
1

Pursuant to the 28 U.S.C. § 1915A screening order at Doc. 8, Tolliver proceeds on the following claims:
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.
Counts 1 and 2 (the excessive force and failure to protect claims) were severed from this case.

institution where the prisoner is located. Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.
2011). The warden is sued in his or her official capacity and essentially functions as a “stand-in
for the political body they serve.” Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995).
For this reason, Defendant IDOC’s motion to dismiss is GRANTED. IDOC shall be
dismissed with prejudice and judgment entered accordingly at the conclusion of this litigation.
However, the Clerk of Court is DIRECTED to add the Warden of Menard Correctional Center
in their official capacity as a defendant.2 The Clerk of Court is also DIRECTED to provide the
necessary service of process forms to the Warden of Menard in accordance with the Court’s
Order at Doc. 8.
SO ORDERED.
Date: December 2, 2016

s/ Staci M. Yandle
Staci M. Yandle
District Judge

2

Kimberly Butler is currently a defendant in her individual capacity and was identified in the Complaint as the
Warden of Menard. However it is not clear whether she is still in that position. As such, the Warden of Menard will
be added as a new defendant.

2