Dunmore v. Duncan et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 3/15/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES E. DUNMORE,
Plaintiff,
vs.
STEPHEN B. DUNCAN,
BETH TREDWAY,
LOUIS SHICKER,
JOHN B. COE,
PHIL MARTIN, and
ILLINOIS DEPARTMENT
OF CORRECTIONS,
Defendants.

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Case No. 3:16-cv-00171-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff James Dunmore is currently incarcerated at Lawrence Correctional Center
(“Lawrence”). (Doc. 1.) Proceeding pro se, Dunmore has filed a complaint pursuant to 42 U.S.C.
§ 1983, arguing that defendants violated the Eighth Amendment, the Americans with Disabilities
Act, the Rehabilitation Act, and the Civil Rights of Institutionalized Persons Act. He brings this
action against several Lawrence officials, the medical director of the Illinois Department of
Corrections (“IDOC), and the IDOC. He seeks declaratory, injunctive, and monetary relief. (Id.
at 10-12.)
This matter is now before the Court for a preliminary review of Dunmore’s complaint
pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court shall review a “complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
government entity.” During this preliminary review under § 1915A, the Court “shall identify

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cognizable claims or dismiss the complaint, or any portion of the complaint,” if the complaint “is
frivolous, malicious, or fails to state a claim on which relief may be granted” or if it “seeks
monetary relief from a defendant who is immune from such relief.”
Background
The complaint alleges the following facts. Dunmore was transferred to Lawrence from
Menard Correctional Center on a medical transfer. (Id. at 3.) He arrived at Lawrence on August
10, 2012. (Id.) Dunmore was to receive physical therapy at Lawrence and begin the process of
recovery after having undergone back surgery in November 2011. (Id.) He has been confined to
a wheelchair since the surgery. (Id.)
Dunmore began treatment with an on-site physical therapist on October 31, 2012. (Id.)
By January 9, 2013, however, his treatment ended. (Id.) Apparently, his physical therapist
discontinued therapy because Dunmore had not shown signs of recovery and because of the lack
of appropriate medical devices at Lawrence. (Id. at 4, 9.) Dunmore also claims that the physical
therapy program at Lawrence had only been in place for about a year and that it did not have
“very much . . . to offer” him. (Id. at 3-4.)
On March 28, 2013, Dunmore attempted to use the toilets located on the Lawrence prison
yard. (Id. at 7.) The toilets were not wheelchair accessible, however, and so he was unable to use
them. (Id.) He asked correctional employees many times to be allowed to use the “cell-house”
restrooms, but he was prohibited from doing so. (Id.) He was told that if he went inside the cellhouse, he would not be allowed to re-enter yard for the remainder of his designated time. He
states that he was thus “force[d] to urinate on himself.” (Id.)
From January through September 2013, Dunmore wrote several letters to prison officials,
including defendants Health Care Administrator Dr. Phil Martin, Dr. Louis Shicker, Agency

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Medical Director at IDOC, and Lawrence Medical Director Dr. John Cole, concerning the need
for a “Medical Recovery/ADA Transfer.” (Id. at 4-5.)1 He also filed grievances with Lawrence
and IDOC officials, including Assistant Warden Tredway, regarding officials’ refusal to grant
him a medical transfer, and Lawrence’s alleged violation of the ADA due to Dunmore’s inability
to access the toilets in the prison yard. (Id. at 5.)
Discussion
To facilitate the management of future proceedings, and in accordance with the
objectives of Federal Rules of Civil Procedure 8 and 10, the Court finds it appropriate to break
the claims in Dunmore’s pro se complaint into numbered counts, as shown below. The parties
and the Court will use these designations in all pleadings and orders, unless otherwise directed
by the Court. The designation of these counts does not constitute an opinion as to their merit.
COUNT 1:

Martin, Shicker, Coe, and IDOC were deliberately indifferent to Plaintiff’s
serious medical condition when they failed to ensure that Plaintiff receive
adequate physical therapy and transfer him to a facility with an adequate
physical therapy program.

COUNT 2:

Tredway and IDOC violated the Americans with Disabilities Act, the
Rehabilitation Act, and the Civil Rights of Institutionalized Persons Act
when they failed to install wheelchair accessible toilets.2

In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show (1) that he suffered from an objectively serious medical condition; and (2) that the
defendant was deliberately indifferent to a risk of serious harm from that condition. An
objectively serious condition includes an ailment that has been “diagnosed by a physician as
mandating treatment,” one that significantly affects an individual’s daily activities, or which

1

Dunmore’s wife wrote a letter to defendant Shicker on February 10, 2013, urging him to transfer her husband to
another facility for treatment. (Id. at 4.)
2
Plaintiff also implicates a “Chief Administrative Officer” under this count, however, this defendant was not
mentioned in the complaint’s caption or “Jurisdiction” section. Therefore, the Court does not consider this individual
to be a party to this action.

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involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
“Deliberate indifference is proven by demonstrating that a prison official knows of a substantial
risk of harm to an inmate and either acts or fails to act in disregard of that risk. Delaying
treatment may constitute deliberate indifference if such delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)
(internal citations and quotations omitted); see also Farmer v. Brennan, 511 U.S. 825, 842
(1994).
In this case, Dunmore’s back injury, confinement to a wheelchair, and ongoing pain
indicate the presence of a serious medical condition that satisfies the objective component of an
Eighth Amendment claim. The remaining question is whether officials acted or failed to act with
deliberate indifference to a known risk of serious harm.
Dunmore contends that he requires “advanced” physical therapy of the kind unavailable
at Lawrence. Without such treatment, Dunmore insists he will be confined to a wheelchair for
the rest of his life. He requested that he be transferred to a facility with a more robust physical
therapy program in letters written to defendants Martin, Shicker, and Coe, but to no avail. It
cannot be determined at this juncture whether the denials of Dunmore’s requests rise to the level
of deliberate indifference or whether the response was appropriate in light of Dunmore’s medical
needs. Accordingly, Dunmore’s claims in Count 1 against Martin, Shicker, Coe, and IDOC shall
receive further review.
Dunmore cannot pursue a claim for money damages against IDOC under § 1983,
however, because it is a state government agency. See Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989) (“[N]either a State nor its officials acting in their official capacities are

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‘persons’ under § 1983.”). But to the extent Dunmore seeks injunctive relief against IDOC, he
shall be permitted to proceed in that regard.
Count 2 also survives preliminary review. Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq. and the Rehabilitation Act (“RA”), 29 U.S.C. § 701, et seq.
prohibit discrimination against qualified individuals because of their physical or mental
disability, including a failure to accommodate a disability. In order to make out a prima facie
under both the ADA and RA, a plaintiff must show that (1) he suffers from a disability as
defined in the statutes, (2) he is qualified to participate in the program in question, and (3) he was
either excluded from participating in or denied the benefit of that program based on his
disability. Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005). The RA further
requires that a plaintiff show that the program in which he was involved received federal
financial assistance. Id. at 810 n.2; see also 29 U.S.C. § 749(a); Novak v. Bd. of Trustees of S. Ill.
Univ., 777 F.3d 966, 974 (7th Cir. 2015).
The ADA applies to state prisons, Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998),
and all such institutions receive federal funds, Jaros v. Illinois Dept. of Corrections, 684 F.3d
667 (7th Cir. 2012). Thus, the two statutory schemes are applicable to this situation. Plaintiff is
confined to a wheelchair due to his back impairment, and therefore has a disability as defined in
the ADA and RA. The Seventh Circuit has recognized that access to certain housing facilities,
including toilets in a prison setting, is protected by the ADA and RA. See id. at 670 (Adequate
facilities to “wash and use the toilet are among the minimal civilized measures of life’s
necessities that must be afforded prisoners.”). The complaint indicates that this lack of
accommodation to use a toilet while in the yard is not temporary and that Dunmore was forced to
urinate himself on at least one occasion because of this lack of accessibility. He has therefore

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pleaded a plausible claim for failure to make a reasonable accommodation at this early stage in
this litigation.
But Count 2 cannot proceed against defendant Tredway. The only proper defendant in a
claim under the ADA or RA is the state agency (or a state official acting in his or her official
capacity). “[E]mployees of the Department of Corrections are not amenable to suit under the
Rehabilitation Act or the ADA.” Jaros, 684 F.3d at 670 (additional citations omitted). Dunmore
has included IDOC as a named defendant, and it would be duplicative and unnecessary to
include any other individual defendants in this count, even in their official capacity. Count 2
shall therefore proceed against the IDOC only for compensatory damages and injunctive relief,
but not punitive damages. Defendant Tredway is dismissed without prejudice from Count 2.
Plaintiff also brings Count 2 under the Civil Rights of Institutionalized Persons Act
(“CRIPA”). That act, however, does not create a private right of action in favor of an individual.
See Pope v. Bernard, 2011 WL 478055, at *1 (1st Cir. Feb. 101, 2011); Price v. Brittain, 874
F.2d 252, 262 (5th Cir. 1989); McRorie v. Shimoda, 795 F.2d 780, 782 n.3 (9th Cir. 1986);
Weisman v. New Jersey Dept. of Human Servs., 817 F.Supp.2d 456, 462 (D. N.J. 2011); Bieros v.
Nicola, 860 F.Supp. 226, 235 (E.D. Pa. 1994). Therefore, the claims in Count 2 under CRIPA are
dismissed.
Also, Dunmore’s claims shall not proceed against Defendant Warden Duncan. Section
1983 creates a cause of action based on personal liability and predicated upon fault; thus, “to be
liable under § 1983, an individual defendant must have caused or participated in a constitutional
deprivation.” Pepper v. Vill. of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005). Given this personal
involvement requirement, Ҥ 1983 does not allow actions against individuals merely for their
supervisory role.” Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000). Dunmore’s

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allegations against Duncan focus on the fact that he is “the Warden of Lawrence Correctional
Center” and is “legally responsible for the operation” of Lawrence. But Duncan’s role as chief
administrative officer of the prison is not enough, on its own, to render him personally involved
in the actions of his subordinates. See, e.g., Smith v. Husz, 384 F. App’x 514, 515 (7th Cir. 2010)
(“[Section] 1983 does not allow actions against persons merely because of their supervisory
roles.”); Burks v. Raemisch, 555 F.3d 592, 593 (7th Cir. 2009) (noting that “Section 1983 does
not establish a system of vicarious responsibility,” and finding that “public employees are
responsible for their own misdeeds but not for anyone else’s”). Therefore, Duncan is dismissed
from this action without prejudice.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed on COUNT 1 against
Defendants MARTIN, SHICKER, COE, and IDOC, and on COUNT 2 against Defendant
IDOC. Defendants Tredway and Duncan are DISMISSED from this action without prejudice.
As for COUNTS 1 and 2, the Clerk of Court shall prepare for Defendants MARTIN,
SHICKER, COE, and IDOC: (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, 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 pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.

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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).
Plaintiff’s Motion for Service at Government’s Expense (Doc. 4) is GRANTED.
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, including the disposition of
Plaintiff’s motion for recruitment of counsel (Doc. 3).
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.

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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
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: March 15, 2016
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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