Pegues v. Unknown Party et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 10/11/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ADAM PEGUES, # R-50721,

)
)
Plaintiff,
)
)
vs.
)
)
UNKNOWN PARTY C/O,
)
LAWRENCE CORRECTIONAL CENTER, )
and MRS. BROCKHART,
)
)
Defendants.
)

Case No. 16-cv-503-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff raises claims under
the Eighth Amendment and under the Americans with Disabilities Act (“ADA”), based on the
defendants’ failure to provide him with access to bathroom facilities while he is in the prison’s
dayroom. He also includes a claim of negligence. This case is now before the Court for a
preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must 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). Frivolousness is an objective standard that refers

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to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000).
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 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 Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that one of Plaintiff’s claims survives threshold
review under § 1915A.
The Complaint
On May 18, 2015, Plaintiff was attending the dayroom at Lawrence and requested
permission from the Unknown Defendant Correctional Officer to be let back into his cell to use
the bathroom. The Unknown Officer denied Plaintiff’s request (Doc. 1, p. 8). Plaintiff explains

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that when inmates go to the dayroom, prison policy requires them to leave their cell doors shut
for security reasons. Inmates thus have no access to the toilets in their cells during the dayroom
period.
Plaintiff alleges that he is confined to a wheelchair 1 and must take a strong medication
(Lactulose) in order to move his bowels. This same medication causes him to lose control of his
bowels (Doc. 1, pp. 8-9). Because of this disability-related condition, he needs to have access to
a restroom. His dayroom time lasts for an hour and a half, during which he has no bathroom
access. Plaintiff claims that the denial of access to a toilet for that length of time is a violation of
his basic human needs and Eighth Amendment rights. He maintains that he is forced to miss his
dayroom/recreation time in order to be near a bathroom and that this violates what he believes to
be his constitutionally guaranteed right to one hour daily of dayroom and yard time.
Plaintiff further asserts that Lawrence Correctional Center (which he names as a
defendant) is designated as an ADA prison. However, the institution fails to accommodate
inmates with disabilities by providing toilet facilities for them while they are in the dayroom.
Plaintiff has written numerous times to Defendant Brockhart (Assistant Warden), who is the
ADA Coordinator, complaining about the lack of bathroom access for disabled inmates in the
dayroom. Defendant Brockhart has taken no steps to remedy that condition.
Finally, Plaintiff claims that Defendant Brockhart and other unidentified prison staff
members are showing “gross negligence” toward his basic human needs by failing to provide
toilet facilities in the dayroom. This creates inhumane living conditions, because inmates urinate
in the showers due to the lack of toilets (Doc. 1, p. 11).

1

Plaintiff attaches to the Complaint a wheelchair permit issued to him on November 5, 2015 (Doc. 1, p.
15).
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As relief, Plaintiff seeks compensatory and punitive damages and a preliminary and
permanent injunction (Doc. 1, p. 12).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following 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.
Count 1: Eighth Amendment claim against Defendants Brockhart and the
Unknown (John Doe) Defendant Correctional Officer, for deliberate indifference
to Plaintiff’s need to have access to a bathroom during his dayroom time;
Count 2: ADA and Rehabilitation Act claims against Defendant Brockhart for
failing to accommodate Plaintiff’s need for bathroom access while in the prison
dayroom;
Count 3: State law tort claim against Defendant Brockhart for gross negligence,
for the failure to provide toilet access to inmates while they are in the dayroom.
Counts 1 and 3 shall be dismissed for failure to state a claim upon which relief may be
granted. Count 2 shall proceed for further review, but Defendant Brockhart shall be dismissed
from the claim.
Dismissal of Count 1 – Conditions of Confinement – Deliberate Indifference
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,” creating an excessive risk to the inmate’s health or safety. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). 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.
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The lack of access to toilet facilities for a relatively short period of time has been held not
sufficiently serious to state a claim of constitutional dimension. See, e.g., Clark v. Spey, No. 01C-9669, 2002 WL 31133198 at *2-3 (N.D. Ill. Sept. 26, 2002) (inmate held in cold cell with no
toilet for several hours overnight failed to state a claim); Ledbetter v. City of Topeka, Kansas,
318 F.3d 1183, 1188 (10th Cir. 2003) (pretrial detainee held for five hours in cell lacking a toilet
did not state claim for cruel and unusual punishment). Further, the security needs of the prison
may be balanced against an inmate’s need for toilet access when evaluating a potential Eighth
Amendment claim. See, e.g., Decker v. Dunbar, 633 F. Supp. 2d 317, 341-42 (E.D. Tex. 2008),
affirmed, 358 Fed. App’x 509 (5th Cir. 2009); cert. denied, 131 S. Ct. 96 (2010); reh’g denied,
No. 09-10655, 2011 WL 55866 (Jan. 10, 2011) (inmate urinated on himself after being denied
access to restroom while prisoner count was completed; verification of count was a reasonable
basis for delay and did not show deliberate indifference; inmate did not suffer any physical
injury that was not de minimis).
In the instant case, Plaintiff acknowleges the reason why the John Doe Defendant
Correctional Officer denied him permission to return to his cell to use the restroom was based on
institutional security concerns – a restriction on movement of individual inmates back to their
cells during the scheduled dayroom time. Furthermore, Plaintiff has made no showing that the
Defendant Correctional Officer acted either wantonly or with deliberate indifference in this
single incident he describes. Despite Plaintiff’s inability to access the bathroom on that day,
Plaintiff does not indicate that he actually soiled himself or that he suffered any physical injury
or discomfort as a result. Taking all these factors into consideration, the Complaint does not
state a viable deliberate indifference claim against the John Doe Defendant Correctional Officer.

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Plaintiff does not allege that Defendant Brockhart was involved in the specific incident
on May 18, 2015, when he was unable to leave the dayroom to use the toilet. His claim suggests,
however, that for an unspecified amount of time, he was forced to give up his dayroom privilege
in order to remain near a toilet. He alleges that Defendant Brockhart was responsible for placing
him in that dilemma because she failed to ensure bathroom access to inmates during the dayroom
period.
There is no bright-line constitutional rule requiring a set amount of time for inmates to
have dayroom access, contrary to Plaintiff’s belief. It is true that the Eighth Amendment may be
implicated if an inmate is subjected to significant restrictions on his ability to exercise which
would adversely affect his health. See Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988)
(lack of exercise may rise to a constitutional violation if it is extreme and prolonged and poses a
threat to health); see also Turley v. Rednour, 729 F.3d 645, 652-53 (7th Cir. 2013) (repeated
short-term denials of yard privileges due to lockdowns stated an Eight Amendment claim where
cell was too small for physical activity). However, Plaintiff has not alleged that the bathroom
dilemma has in any way restricted his ability to engage in exercise or physical activity. The
mere denial of dayroom access does not rise to the level of a constitutional violation.
For these reasons, Count 1 shall be dismissed without prejudice, for failure to state a
claim upon which relief may be granted.
Count 2 – Americans with Disabilities Act/Rehabilitation Act
Plaintiff also claims that Defendant Brockhart violated his rights under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., by failing to accommodate his need
for bathroom access while attending the dayroom. Title II of the ADA provides that “no
qualified individual with a disability shall, by reason of such disability . . . be denied the benefits

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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 Seventh Circuit has cautioned that claims of

discrimination on account of a disability, especially those from pro se prisoner litigants, must be
analyzed in light of both the ADA and the Rehabilitation Act, whether or not the plaintiff has
asserted a claim under the latter statute. Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012);
Jaros v. Illinois Dept. of Corrections, 684 F.3d 667 (7th Cir. 2012).
In order to state a claim for discrimination under both the ADA and the Rehabilitation
Act (“RA”), a plaintiff must allege: (1) that he suffers from a disability as defined in the statutes,
(2) that he is qualified to participate in the program in question, and (3) that 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 Rehabilitation Act further
requires that a plaintiff show that the program in which he was involved received federal
financial assistance. This is the case for all state prisons.
Plaintiff’s claim that he requires a wheelchair in order to mobilize indicates that he may
suffer from a disability within the meaning of the ADA and RA. The refusal to provide him with
bathroom accommodations arguably has excluded him from participation in out-of-cell dayroom
time, which appears to be provided to other Lawrence inmates.

At this stage, Plaintiff’s

allegations support a potential claim for injunctive relief under the ADA and/or the RA.
However, only the state agency (or official acting in his/her official capacity) may be sued under
these statutes. “[E]mployees of the Department of Corrections are not amenable to suit under the
Rehabilitation Act or the ADA. See 29 U.S.C. § 794(b); 42 U.S.C. § 12131.” Jaros v. Illinois
Dept. of Corrections, 684 F.3d 667, 670 (7th Cir. 2012). Accordingly, the Clerk will be directed
to add the Director of the Illinois Department of Corrections (official capacity only) as a

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defendant herein, and Count 2 shall proceed against the Defendant IDOC Director. Defendant
Brockhart shall be dismissed from this claim.
With reference to Plaintiff’s request for injunctive relief, the Court notes that Plaintiff has
a previously-filed case now pending before this Court, which also raised a claim for injunctive
relief under the ADA and RA, Pegues v. Coe, Case No. 16-cv-239-SMY-RJD. The factual
developments in that case may be relevant to the request for an injunction in the instant case.
Dismissal of Count 3 – State Law Claim – Gross Negligence
Plaintiff seeks to assert a claim for “gross negligence” against Defendant Brockhart,
based on his assertion that by failing to provide toilet facilities in the dayroom, she created
unsanitary living conditions. His rationale for this claim is that inmates urinate in the showers
because they cannot access the toilet during the dayroom period.
Where a district court has original jurisdiction over a civil action such as a § 1983 claim,
it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C.
§ 1367(a), so long as the state claims “derive from a common nucleus of operative fact” with the
original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A
loose factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th
Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
Under Illinois law, in order to state a claim for negligence, a complaint must allege facts
to establish that the defendant owed the plaintiff a duty of care, breached that duty, and that the
breach was the proximate cause of the plaintiff’s injury. Thompson v. Gordon, 948 N.E.2d 39,
45 (Ill. 2011) (citing Iseberg v. Gross, 879 N.E.2d 278 (2007)). Taking these factors in reverse
order, Plaintiff in the instant case has not alleged that he suffered any injury whatsoever. He
does not explain how the alleged problem of inmates urinating in the showers has affected him

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personally. Without some injury and a plausible connection linking that injury to Defendant
Brockhart’s breach of a duty of care, Plaintiff cannot make out a cognizable negligence claim.
Additionally, as discussed above under Count 1, Plaintiff has failed to state a claim
against Defendant Brockhart for a constitutional violation. In the absence of a viable Eighth
Amendment claim, there is no basis for the Court to exercise supplemental jurisdiction over a
state law claim for negligence. Accordingly, the negligence claim in Count 3 shall be dismissed
without prejudice, for failure to state a claim upon which relief may be granted.
Dismissal of Defendant Lawrence Correctional Center
Plaintiff cannot maintain a suit for damages against a state government agency. This
includes the Lawrence Correctional Center, which is a division of the Illinois Department of
Corrections. 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). For this reason, Defendant Lawrence Correctional Center
shall be dismissed from the action with prejudice. 2
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
Disposition
The Clerk is DIRECTED to add the DIRECTOR of the ILLINOIS DEPARTMENT
2

This Eleventh Amendment immunity does not bar Plaintiff from seeking injunctive relief against the
Director of the Illinois Department of Corrections in Count 2.
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of CORRECTIONS (official capacity) as a Defendant in this action.
COUNTS 1 and 3 are DISMISSED without prejudice for failure to state a claim upon
which relief may be granted.
Defendants UNKNOWN PARTY (JOHN DOE) CORRECTIONAL OFFICER and
BROCKHART are DISMISSED from this action without prejudice. Defendant LAWRENCE
CORRECTIONAL CENTER is DISMISSED from this action with prejudice.
With reference to COUNT 2, the Clerk of Court shall prepare for Defendant
DIRECTOR of the ILLINOIS DEPARTMENT of CORRECTIONS (official capacity): (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 Defendant’s place of employment as identified
by Plaintiff. If 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 Defendant, and the Court will require Defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every further 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 any document was served on Defendant 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.
Defendant is 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).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Reona J. Daly for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge Daly
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
for want of prosecution. See FED. R. CIV. P. 41(b).

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IT IS SO ORDERED.
DATED: October 11, 2016

s/ STACI M. YANDLE
United States District Judge

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