Bilik v. Shearing et al

Filing 14

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. (Action due by 2/21/2017). Signed by Chief Judge Michael J. Reagan on 1/23/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD BILIK, # K-60539,
Plaintiff,
vs.
DR. ROBERT SHEARING,
M. MOLDENHAUER,
JOHN TROST,
RICHARD HARRINGTON,
S. A. GODINEZ,
BILLIE W. GREER,
ANGELA GROTT,
JACQUELINE LASHBROOK,
LOUIS SHICKER,
SERGEANT FEDERKE,
RICHARD FERRELL,
CINDY McDANIELS,
GAIL WALLS,
ANGELA CRAIN,
KIMBERY BUTLER,
FE FUENTES,
SANDRA FUNK,
JOHN BALDWIN,
BRUCE RAUNER,
DR. RITZ,
MARC HODGE,
McGLORN,
and UNKNOWN PARTIES,
Defendants.

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Case No. 16-cv-00821-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Now before the Court for consideration is the First Amended Complaint (Doc. 12) filed
by Plaintiff Richard Bilik.

Plaintiff is currently incarcerated at Pinckneyville Correctional

Center (“Pinckneyville”). Proceeding pro se, he filed this civil rights action against 22 known
and 7 unknown officials who denied him medical care for migraine headaches and neuropathy at
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Lawrence Correctional Center (“Lawrence”) in 2012-13 and at Menard Correctional Center
(“Menard”) from 2013-16. (Doc. 12, pp. 17-44). He alleges that certain officials conspired to
retaliate against him for filing grievances at Lawrence by transferring him to Menard and
denying him medical treatment and physical therapy there. (Doc. 12, pp. 26-44). Plaintiff now
brings claims against the defendants under the First, Eighth, and Fourteenth Amendments, the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. §§ 794–
94e, and Illinois state law. (Doc. 12, pp. 17-18, 20).
In connection with these claims, Plaintiff sues four groups of defendants, which he
identifies as follows: (1) Lawrence Defendant - Warden Marc Hodge; (2) Menard Defendants Warden Richard Harrington, Warden Kimberly Butler, Major/Assistant Warden Jacqueline
Lashbrook, Correctional Counselor Angela Grott, Grievance Officer John Doe, Lieutenant
Richard Ferrell, and Sergeant Federke; (3) Wexford Defendants - Doctor Ritz, Doctor Robert
Shearing, Doctor John Trost, Physicians’ Assistant (“P.A.”) M. Moldenhauer, P.A. Fe Fuentes,
P.A. McGlorn, Nursing Director Gail Walls, Nurse Angela Crain, Nurse Cindy McDaniels,
Nurse John Does ##1-3, and Nurse Jane Does ##1-3; and (4) State Defendants - Governor Bruce
Rauner, IDOC Director John Baldwin, IDOC Director S. A. Godinez, IDOC Medical Director
Louis Shicker, Transfer Coordinator Sandra Funk, and Administrative Review Board Member
Billie Greer. (Doc. 12). Plaintiff seeks monetary damages. (Doc. 12, pp. 19-26, 44).
This case is now before the Court for preliminary review of the First Amended Complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
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(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
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
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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. At this juncture, the factual allegations in the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009). The First Amended Complaint survives preliminary review under
this standard. However, the Court will exercise its authority under § 1915A and dismiss certain
claims against the defendants.
First Amended Complaint
In his First Amended Complaint (Doc. 12), Plaintiff alleges that he suffers from two
medical conditions that resulted from a “beating” at Cook County Jail in 2012. (Doc. 12, p. 27).
The conditions include migraine headaches and neuropathy. (Doc. 12, pp. 18, 27). Plaintiff’s
headaches last from 4 hours to 4 days and render him unable to perform normal daily tasks, such
as reading, writing, working, eating, or leaving his cell. (Doc. 12, pp. 18, 28, 32). Plaintiff’s
neuropathy, or chronic nerve damage, causes severe back and generalized body pain. (Doc. 12,
p. 18). This condition limits Plaintiff’s ability to perform “normal daily tasks and activities,”

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such as showering, standing, exercising, and working.

(Doc. 12, pp. 18-19, 28, 32).

A

neurologist diagnosed Plaintiff with both conditions and prescribed the following medications
for them: Neurontin, Elavil, and Depakote. (Doc. 12, p. 27).
Plaintiff contends that he was denied adequate medical care for these “serious and
excruciatingly painful” conditions at Lawrence and Menard. (Doc. 12, pp. 17-18). But beyond
alleging that he was incarcerated at Lawrence from October 19, 2012 until June 13, 2013, he sets
forth no allegations regarding the medical care he received, or was denied, there. Id.
Plaintiff instead focuses on a claim that Lawrence officials decided to transfer him to
Menard in retaliation for filing grievances to complain about the conditions of his confinement at
Lawrence. 1 (Doc. 12, p. 26). The prison officials allegedly knew at the time of making the
transfer decision (i.e., sometime between June 1 and June 14, 2013) that Menard was not
handicap accessible. (Doc. 12, pp. 18, 20). These officials also knew that Menard lacked
physical therapy facilities. Id. Plaintiff names Warden Marc Hodge in connection with his
retaliatory transfer claim, based solely on the warden’s role in creating and implementing
policies regarding the treatment and transfer of inmates. (Doc. 12, p. 20).
Plaintiff’s medical claims arise from events that transpired at Menard after he transferred
there on June 13, 2013. (Doc. 12, pp. 17-18, 21-22). Despite the fact that his First Amended
Complaint and exhibits total almost 190 pages, the factual allegations offered in support of these
claims are thin.
Plaintiff alleges that he met with an unknown intake nurse at Menard. (Doc. 12, p. 26).
He told the nurse about his diagnosis with migraines and neuropathy following his assault at
Cook County Jail on March 14, 2012. (Doc. 12, p. 27). Plaintiff listed the medications he was
1

He offers no details regarding the nature of these grievances, although he includes numerous grievances
in the 140 pages of exhibits that he filed with his First Amended Complaint. (Doc. 12, pp. 17-18, 26).

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prescribed for these conditions. Id. Plaintiff also informed the nurse that he required physical
therapy. Id. The intake nurse made a written record of their conversation. (Doc. 12, pp. 26-27).
The nurse then informed Plaintiff that he would not receive any of his medications or physical
therapy. (Doc. 12, p. 27).
Plaintiff later learned that Shearing directed Moldenhauer to discontinue his treatment
upon his arrival at Menard. Id. Shearing would not recognize Plaintiff’s diagnosis with either
condition. Id. Shearing and Fuentes refused to treat Plaintiff or refer him for treatment with an
outside specialist, despite his complaints of excruciating pain in numerous sick call requests and
grievances. (Doc. 12, pp. 28, 32).
It was not until February 2015 that Doctor Trost, working in conjunction with Doctor
Ritz, finally recommended Plaintiff for physical therapy. (Doc. 12, p. 29). However, it appears
that Plaintiff never actually received any physical therapy as a result of this referral request. Id.
Plaintiff claims that the doctors failed to take the steps necessary to complete the referral process.
Id. In August 2015, Doctor Trost reinstated Plaintiff’s prescription medications by prescribing
him virtually the same medications that “were stripped from the Plaintiff originally upon intake.”
(Doc. 12, p. 29). Still, Plaintiff insists that he received no meaningful treatment for either
condition until he transferred to Pinckneyville on February 2, 2016. Id.
Plaintiff alleges that McDaniels, Walls, Crain, and McGlorn conspired with Shearing,
Moldenhauer, Trost, Fuentes, and the intake nurse to retaliate against him for filing these
grievance(s) by denying him medical care. (Doc. 12, pp. 27-28). The medical staff simply
would not acknowledge either diagnosis. (Doc. 12, p. 28). According to Plaintiff, the diagnoses
were difficult to miss and more likely ignored. These defendants should have known about
Plaintiff’s outside treatment with numerous specialists because the records were included in his

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medical file. (Doc. 12, p. 29). Further, Greer, Harrington, Grott, Butler, Ferrell, Lashbrook, and
John Doe (Menard Grievance Officer) were aware of Plaintiff’s untreated medical conditions
because they either reviewed his grievances or spoke directly to him about the conditions. (Doc.
12, p. 28).
Plaintiff also blames the denial of treatment on a cost-saving policy espoused by Wexford
Health Sources, Inc. (“Wexford”) 2 that discourages the formal diagnosis of inmate medical
conditions in an effort to avoid the attendant treatment obligations. (Doc. 12, p. 28). Citing an
expert report prepared in Lippert v. Godinez, No. 1:10-cv-04603 (N.D. Ill.), a class action filed in
the United States District Court for the Northern District of Illinois, Plaintiff also generally
complains of systemic problems in Illinois state prisons that include: (1) consultations with no
follow-up appointments (Doc. 12, p. 30); (2) long term vacancies for critical medical staff
positions (Doc. 12, p. 31); and (3) Wexford’s self-monitoring of services (Doc. 12, p. 31).
However, he does not allege that these system-wide policies caused the denial of his own
medical care. (Doc. 12).
Discussion
Based on the allegations in the First Amended Complaint, the Court finds it convenient to
divide this pro se action into the following enumerated counts, which generally track Plaintiff’s
own characterization of his claims. 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 regarding their merit.
Count 1 –

Defendants denied Plaintiff medical care for his migraines at
Menard from 2013-16, in violation of his federal constitutional

2

Plaintiff does not name Wexford as a defendant in the case caption. Accordingly, all claims against
Wexford are 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”).

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rights under the Eighth and Fourteenth Amendments and his state
constitutional rights under Art. I, §§ 1, 2, 4, 5, 11, 12, 19, and 24.
(“Count 1,” First Amended Complaint) (Doc. 12, pp. 32-33).
Count 2 –

Defendants denied Plaintiff medical care for his chronic nerve
damage and back pain at Menard from 2013-16, in violation of his
federal constitutional rights under the Eighth and Fourteenth
Amendments and his state constitutional rights under Art. I, §§ 1,
2, 4, 5, 6, 11, 12, 19, and 24. (“Count 2,” First Amended
Complaint) (Doc. 12, pp. 34-35).

Count 3 –

Defendants committed medical malpractice or negligence 3 in
violation of Illinois law when they failed to treat Plaintiff’s
migraines and neuropathy from 2013-16. (“Count 3,” First
Amended Complaint) (Doc. 12, pp. 35-36).

Count 4 –

Defendants conspired to retaliate against Plaintiff for filing
grievances to complain about the conditions of his confinement by
discarding his personal property, denying him access to
commissary, transferring him to Menard, and denying him medical
care, all in violation of the First Amendment. (“Count 4,” First
Amended Complaint) (Doc. 12, pp. 37-38).

Count 5 –

Defendants denied Plaintiff access to his prescription medications
for both conditions at Menard from 2013-16, in violation of his
federal constitutional rights under the Eighth and Fourteenth
Amendments. (“Count 5,” First Amended Complaint) (Doc. 12,
pp. 38-41).

Count 6 –

Defendants conspired to deny Plaintiff equal protection of the law
in violation of the Fourteenth Amendment. (“Count 6,” First
Amended Complaint) (Doc. 12, pp. 41-42).

Count 7 –

Defendants violated Plaintiff’s rights under the ADA and
Rehabilitation Act by failing to treat his chronic medical
conditions and refusing him physical therapy, which rendered him
unable to participate in daily activities. (“Count 7”) (Doc. 12, pp.
42-43).

Count 8 –

Defendants are liable to Plaintiff for negligence under the FTCA.
(Doc. 12, p. 1).

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Plaintiff characterizes Count 3 as a “failure to protect” claim against defendants for allowing the
negligence or medical negligence described in his First Amended Complaint. (Doc. 12, pp. 35-36). This
claim is more aptly characterized as a negligence, or medical malpractice, claim under Illinois state law
and has been re-characterized as such herein.

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As discussed in more detail below, Plaintiff shall be allowed to proceed with his Eighth
Amendment claims in Counts 1, 2, and 5 against Ritz, Shearing, Trost, Moldenhauer, Fuentes,
McGlorn, Walls, Crain, McDaniels, Jane/John Doe (Menard Intake Nurse), Ferrell, John Doe
(Menard Grievance Officer), Harrington, Butler, Lashbrook, Grott, and Greer; the Fourteenth
Amendment claims and state constitutional claims referred to in these counts shall be dismissed.
In addition, Count 7 shall proceed against Salvador Godinez and John Baldwin, the former and
current Directors of the Illinois Department of Corrections. However, Counts 3, 4, and 6 shall be
dismissed without prejudice and Count 8 shall be dismissed with prejudice for failure to state a
claim upon which relief may be granted.
Claims Subject to Further Review
Counts 1, 2, and 5 – Eighth Amendment
The Eighth Amendment prohibits cruel and unusual punishment of prisoners and
safeguards them against “a lack of medical care that ‘may result in pain and suffering which no
one suggests would serve any penological purpose.’” Perez v. Fenoglio, 792 F.3d 768, 776 (7th
Cir. 2015) (quoting Rodriguez, 577 F.3d at 828; Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To
state a claim for deficient medical care, a plaintiff must allege that he suffered from an
objectively serious medical condition. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). He
must also allege that the defendants responded to his medical needs with deliberate indifference.
Id. at 750.
Plaintiff’s migraines and neuropathy are sufficiently serious to support an Eighth
Amendment claim at screening. A medical need is considered objectively 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.

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2009)). Plaintiff alleges that a neurologist diagnosed him with both conditions and prescribed
him Neurontin, Elavil, and Depakote for them. If left untreated, the pain associated with the
conditions allegedly limits or prevents Plaintiff from performing daily tasks. These allegations
support a finding that Plaintiff’s medical needs were objectively serious.
Prison officials act with deliberate indifference, when they “know of and disregard an
excessive risk to inmate health.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). They
must “both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists,” and they “must also draw the inference.” Id. (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)). The receipt of some medical care does not defeat a claim of
deliberate indifference, if the treatment is “so blatantly inappropriate as to evidence intentional
mistreatment likely to seriously aggravate a medical condition.” Edwards v. Snyder, 478 F.3d
827, 832 (7th Cir. 2007). In addition, a delay in providing medical treatment “may constitute
deliberate indifference if such delay exacerbate[s] the injury or unnecessarily prolong[s] an
inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and
quotations omitted); Farmer, 511 U.S. at 842.
The First Amended Complaint includes sufficient allegations to state a deliberate
indifference claim under the Eighth Amendment in Counts 1, 2, and 5 against Defendants Ritz,
Shearing, Trost, Moldenhauer, Fuentes, McGlorn, Walls, Crain, McDaniels, and Jane/John Doe
(Menard Intake Nurse). 4 Plaintiff asserts that each of these defendants knew he suffered from
chronic pain associated with migraines and neuropathy. They also knew he needed medical
4

Although Plaintiff does not specifically name “Jane/John Doe (Menard Intake Nurse)” as a defendant in
the case caption, the Court will allow him to proceed with the Eighth Amendment claims in Counts 1, 2,
and 5 against this defendant. Plaintiff did name six unknown nurses as defendants in the case caption,
and, in doing so, indicated that he intends to pursue claims against members of Menard’s nursing staff.
However, he referred to none of them in his statement of claim. Although these six defendants shall be
dismissed based on the lack of allegations against them, the Clerk will be directed to replace them with
“Jane/John Doe (Menard Intake Nurse)” as a defendant in CM/ECF.

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treatment that included prescription medication and physical therapy.

However, these

defendants either refused to acknowledge his diagnoses pursuant to Wexford’s policy or practice
of discouraging a formal diagnosis in order to avoid the attendant treatment obligations, or they
made a conscious decision to deny him treatment for more than two years. Further review of the
Eighth Amendment claims in Counts 1, 2, and 5 is warranted against Defendants Ritz, Shearing,
Trost, Moldenhauer, Fuentes, McGlorn, Walls, Crain, McDaniels, and John/Jane Doe (Menard
Intake Nurse).
The First Amended Complaint also includes sufficient allegations to state deliberate
indifference claims under the Eighth Amendment in Counts 1, 2, and 5 against the following
grievance officials: Harrington, Butler, Lashbrook, Grott, Greer, Ferrell, and John Doe (Menard
Grievance Officer). Plaintiff alleges that he submitted grievances to these supervisory officials
to complain about the denial of medical care for his migraines and neuropathy.

He filed

numerous detailed grievances with the First Amended Complaint.
Under the circumstances, the Court cannot dismiss the Eighth Amendment deliberate
indifference claims in Counts 1, 2, and 5 against the grievance defendants at this early stage. It
is true that these defendants cannot be held liable for the alleged violation of Plaintiff’s
constitutional rights merely because they serve in a supervisory role at the prison. “The doctrine
of respondeat superior does not apply to § 1983 actions; thus to be held individually liable, a
defendant must be ‘personally responsible for the deprivation of a constitutional right.’” Sanville
v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
However, “[a]n inmate’s correspondence to a prison administrator may . . . establish a basis for
personal liability under § 1983 where that correspondence provides sufficient knowledge of the

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constitutional deprivation.” See Perez, 792 F.3d at 781-82. The grievances included with the
First Amended Complaint are, indeed, detailed and were directed to these defendants.
Accordingly, the Court will also allow Plaintiff to proceed with the Eighth Amendment claims in
Counts 1, 2, and 5 against the grievance officials (Harrington, Butler, Lashbrook, Grott, Greer,
Ferrell, and Grievance Officer Doe).
In summary, the Eighth Amendment deliberate indifference to medical needs claims in
Counts 1, 2, and 5 against Defendants Ritz, Shearing, Trost, Moldenhauer, Fuentes, McGlorn,
Walls, Crain, McDaniels, Intake Nurse Jane/John Doe, Harrington, Butler, Lashbrook, Grott,
Greer, Ferrell, and Grievance Officer Doe shall receive further review. The allegations fail to
satisfy the Twombly pleading standard against all remaining defendants. Therefore, the Eighth
Amendment claims in Counts 1, 2, and 5 shall be dismissed without prejudice against all other
defendants.
Count 7 – ADA & Rehabilitation Act
Plaintiff shall be allowed to proceed with his claim of discrimination based on his
disability under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the
Rehabilitation Act, 29 U.S.C. §§ 794-94e. 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 (2006). The Rehabilitation Act also prohibits discrimination by
entities receiving federal funding (such as state prisons) against qualified individuals based on a
physical or mental disability. See 29 U.S.C. §§ 794-94e. Discrimination under both includes the
failure to accommodate a disability. Jaros v. Illinois Dep’t of Corrections, 684 F.3d 667, 671
(7th Cir. 2012).

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At this stage, the Court cannot dismiss the ADA or RA claims. The allegations suggest
that Plaintiff is a qualified individual with a disability.

Courts have found that migraine

headaches can rise to the level of a disability under the ADA. Disability also includes a
limitation of one or more major life activities, such as walking, standing, bending, and caring for
oneself. Jaros, 684 F.3d at 672.
The allegations also suggest that Plaintiff was denied access to services at the prison
because of his disability. At times, Plaintiff was unable to leave his cell and was bedridden
because of his migraines and neuropathy. The denial of medication and physical therapy only
exacerbated his condition and further prevented him from performing normal daily tasks.
Medical services that are denied because of a disability may constitute a violation of the
ADA. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). In contrast, a claim of
inadequate medical treatment is improper under the ADA. Resel v. Fox, 26 F. App’x 572, 577
(7th Cir. 2001); Bryan v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create
a remedy for medical malpractice.”). At this stage, the allegations support a claim under the
ADA and RA based on the denial of medical care and services because of Plaintiff’s disability.
Accordingly, the ADA and RA claims in Count 7 shall receive further review.
However, these claims cannot proceed against the individual defendants because
individual employees of the IDOC cannot be sued under the ADA or Rehabilitation Act. Jaros,
684 F.3d 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 or her official capacity)). Plaintiff has not
named the IDOC as a defendant, but he has named two IDOC directors, including Salvador
Godinez and John Baldwin. Count 7 shall proceed against these defendants, in their official

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capacities only. The claim shall be dismissed against Directors Godinez and Baldwin, in their
individual capacities, and against all other defendants with prejudice.
Claims Subject to Dismissal
Counts 1, 2, and 5 – Fourteenth Amendment
In connection with Counts 1, 2, and 5, Plaintiff also invokes the Fourteenth Amendment.
Presumably, this is because the Eighth Amendment applies to the States through the Due Process
Clause of the Fourteenth Amendment, and Plaintiff brings his claims in federal court against
state officials. See Wilson v. Seiter, 501 U.S. 294, 297 (1991) (citing Robinson v. California, 370
U.S. 660, 666 (1962)).
To be clear, however, the First Amended Complaint supports no independent Fourteenth
Amendment due process claim against the defendants, based on their alleged mishandling, delay,
or denial of his grievances. “[A] state’s inmate grievance procedures do not give rise to a liberty
interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th
Cir. 1996). The Constitution requires no procedure at all, and the failure of state prison officials
to follow their own procedures does not, of itself, violate the Constitution. Maust v. Headley,
959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). A
cause of action also does not arise where a plaintiff files a grievance, and simply disagrees with
the outcome. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005). Plaintiff cannot proceed
with any Fourteenth Amendment due process claims in Counts 1, 2, and 5, and these claims shall
be dismissed with prejudice from this action.
Counts 1, 2, and 5 – State Constitutional Claims
Plaintiff also cannot proceed with his state constitutional claims in Counts 1, 2, and 5.
He refers to violations of Art. I, §§ 1, 2, 4, 5, 6, 11, 12, 19, and 24 of the Illinois Constitution.

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However, Plaintiff does not explain, even in basic terms, why he invoked these constitutional
provisions.
Where a district court has original jurisdiction over a civil rights action filed pursuant to
42 U.S.C. § 1983, 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)). In this case, Plaintiff has drawn no connection between his factual allegations, his
references to the state constitution, and his claims arising therefrom.
Even if these state claims arise from the same set of facts as the federal claims, however,
none of the state constitutional claims survive threshold review. Plaintiff peppered his First
Amended Complaint with a long list of state constitutional provisions. This alone is insufficient
to state a claim. Like bald factual assertions, conclusory legal statements, fail to provide the
Court and the defendants sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). The Court cannot analyze such claims, and the defendants cannot respond to
or defend against them. The state constitutional claims referred to throughout the First Amended
Complaint, particularly in conjunction with Counts 1 and 2, do not survive screening under
Twombly or Iqbal. Accordingly, the state constitutional claims shall be dismissed without
prejudice.
Count 3 – Negligence
A defendant can never be held liable under § 1983 for negligence, and this claim shall
also be dismissed. Daniels v. Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64 F.3d

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285, 290 (7th Cir. 1995). This is because “[m]ere negligence or even gross negligence does not
constitute deliberate indifference.” Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996). In
addition, “medical malpractice in the form of an incorrect diagnosis or improper treatment does
not state an Eighth Amendment claim.” Gutierrez, 111 F.3d at 1374.
Even if the Court exercises supplemental jurisdiction over the state law negligence claim,
this First Amended Complaint supports no such claim. See 28 U.S.C. § 1367(a). 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 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). 1 A separate affidavit and report
shall be filed as to each defendant. See 735 ILL. COMP. STAT. § 5/2-622(b).

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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Failure to file the required certificate/affidavit 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).
However, whether such dismissal should be with or without prejudice is up to the sound
discretion of the court. Sherrod, 223 F.3d at 614. “Illinois courts have held that when a plaintiff
fails to attach a certificate and report, then ‘a sound exercise of discretion mandates that [the
plaintiff] be at least afforded an opportunity to amend her complaint to comply with section 2622 before her action is dismissed with prejudice.’” Id.; see also Chapman v. Chandra, No. 06cv-651-MJR, 2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).
In the instant case, Plaintiff has failed to file the necessary affidavit/certificate and report.
Therefore, the claim in Count 3 shall be dismissed. However, the dismissal shall be without
prejudice at this time, and Plaintiff will be allowed 28 days (on or before February 21, 2017) to
file the required affidavit if he wishes to revive the claim and pursue it in this action. Should
Plaintiff fail to timely file the required affidavits, the dismissal of Count 3 shall become a
dismissal with prejudice upon the expiration of this deadline. See FED. R. CIV. P. 41(b).
Count 4 – Retaliation
Plaintiff claims that virtually every action taken by the defendants was part of a
conspiracy to retaliate against him for filing grievances at Lawrence and Menard to complain
about the conditions of his confinement.
retaliation claim.

He asserts alternative theories in support of his

For example, Plaintiff claims that Lawrence officials transferred him to

Menard in retaliation for filing grievances. He also asserts that Federke transferred him to
various cells and placed restrictions on his commissary privileges at Menard in retaliation for
filing grievances. In addition, Plaintiff claims that all of the defendants conspired to retaliate

16

against him for filing grievances by denying him medical care. In each instance, the allegations
are insufficient to support a retaliation claim.
In the prison context, an inmate alleging retaliation 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). In other words, the “bare minimum” required to state a retaliation claim are the facts
that would apprise the defendant of what the plaintiff did to provoke the alleged retaliation and
how each defendant responded. Higgs, 286 F.3d at 439. The First Amended Complaint falls
short of satisfying this standard.
Although Plaintiff consistently identifies grievances as the protected activity that
motivated the retaliation by defendants, he does not indicate which grievances spurred the
retaliation, he does not describe the content of any grievances with sufficient detail to locate
them in his voluminous exhibits, and he does not set forth a chronology of events which
otherwise suggests that his grievances motivated the retaliation. See Walker v. Thompson, 288
F.3d 1005, 1012 (7th Cir. 2012) (“a plaintiff alleging retaliation must reference, at a minimum,
the suit or grievance spawning the retaliation and the acts that constitute the retaliatory
conduct.”) (Ripple, J. concurring)). See also Higgs, 286 F.3d at 439 (“Had Higgs merely alleged
that the defendants . . . retaliated against him for filing a suit without identifying the suit or the
act or acts claimed to have constituted retaliation, the complaint would be insufficient. . . .”).
The First Amended Complaint lacks sufficient allegations to support a retaliation claim against
the defendants under this standard.
Having failed to articulate a claim of retaliation, the conspiracy claim also fails.
Conspiracy is not an independent basis of liability in Section 1983 actions. See Smith v. Gomez,

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550 F.3d 613, 617 (7th Cir. 2008); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir.
2000). See Lewis v. Washington, 300 F.3d 829, 831 (7th Cir. 2002). “There is no constitutional
violation in conspiring to cover-up an action which does not itself violate the Constitution.” Hill
v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996). Accordingly, Count 4 shall be dismissed, in its
entirety, without prejudice for failure to state a claim upon which relief may be granted.
Count 6 – Equal Protection
Plaintiff’s Fourteenth Amendment equal protection claim does not survive screening for
the same reason many of his other claims fail to pass muster under § 1915A. The allegations in
the First Amended Complaint are too thin to support a claim under Twombly and/or Iqbal.
Accordingly, this claim shall also be dismissed without prejudice.
To state a claim for a denial of equal protection, plaintiffs typically must show that they
are members of a protected class, that they are otherwise similarly situated to members of the
unprotected class, and that they were treated differently than members of the unprotected class.
Chavez v. Ill. State Police, 251 F.3d at 635-36 (citations omitted). See also Srail v. Village of
Lisle, 588 F.3d 940, 943 (7th Cir. 2009). “[P]laintiffs must prove that the defendants’ actions
had a discriminatory effect and were motivated by a discriminatory purpose.” Chavez, 251 F.3d
at 635-36. Actions may have a discriminatory effect if a plaintiff is treated differently than
similarly situated individuals. Id. at 636. Plaintiff includes no allegations that satisfy these
requirements in the First Amended Complaint.
Alternatively, a plaintiff may bring a “class-of-one” discrimination claim. A plaintiff
bringing this type of claim must allege that he “has been intentionally treated differently from
others similarly situated and there is no rational basis for the difference in treatment.” Id. at 943.
In order to state a plausible claim, the plaintiff must “negate any reasonably conceivable state of

18

facts that could provide a rational basis” for the treatment. Jackson v. Village of Western
Springs, 612 F. App’x 842, 847 (7th Cir. 2015). Here again, the First Amended Complaint fails
to state a claim.
Plaintiff offers no basis for his discrimination claim. The allegations offered in support
of this claim make little sense. Plaintiff alleges:
Each of the Defendants’ – based on Plaintiff’s written grievances to the Defendant
Wardens, verbal complaints made to Defendant rounding C.O.’s, Plaintiff’s
physical appearance, and examinations provided by Wexford Defendants and CCJ
Medical Records – were personally aware of the nature of Plaintiff’s grievances
regarding his Medical Treatments and/or lack thereof, Pain and suffering
combined with retaliation for writing grievances and making pleas for pain
management relief as well as to cure and diagnose as well as to adequate treat
such pains and ailments effecting the Plaintiff.
(Doc. 12, p. 41). The Court cannot discern whether Plaintiff intended to bring this claim based
on his membership in a suspect class or as a “class of one.” Either way, the claim is subject to
dismissal because Plaintiff also fails to allege that he was subject to discriminatory treatment of
any kind.
His related claim under 42 U.S.C. § 1985 is also subject to dismissal. Section 1985
prohibits conspiracies to interfere with certain civil rights. However, in order to state a claim
under §§ 1985(2) and (3), a plaintiff must allege race- or class-based animus. Jackson, 612 F.
App’x 842, 847 (7th Cir. 2015) (Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Wright v. Ill.
Dep’t of Children & Family Servs., 40 F.3d 1492, 1507 (7th Cir. 1994)). Plaintiff has not
mentioned either in connection with his equal protection claim.
The allegations offered in support of the equal protection claim are muddled and
nonsensical. The allegations present no plausible claim against any of the defendants. Under the
circumstances, Count 6 shall also be dismissed without prejudice for failure to state a claim upon
which relief may be granted.
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Count 8 – FTCA
Plaintiff designated this action as one brought pursuant to 42 U.S.C. § 1983 and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680. Besides checking the box
for an FTCA claim on the first page of his amended pleading, however, Plaintiff makes no other
reference to the FTCA in the First Amended Complaint. The FTCA provides jurisdiction for
suits against the United States regarding torts committed by federal officials, not state officials.
The only named defendants are state officials. Therefore, Plaintiff’s claims do not fall within the
jurisdiction of the FTCA. Accordingly, Count 8 shall be dismissed with prejudice for failure to
state a claim upon which relief may be granted.
Parties Subject to Dismissal
The Court deems it appropriate to dismiss 11 of the 29 defendants from this action,
including: Shicker, Federke, Funk, Rauner, Hodge, 5 Nurse John Does ##1-3, and Nurse Jane
Does ##1-3. Plaintiff offers virtually no allegations in support of any claims against them. As a
result, the Court is unable to ascertain what claims, if any, Plaintiff has against these defendants.
The reason that plaintiffs are required to associate specific defendants with specific
claims is so these defendants are put on notice of the claims brought against them and so they
can properly answer the complaint. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). “Federal
Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing
that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (internal quotation
omitted). Thus, where a plaintiff has not included a defendant in his statement of the claim, the
5

Plaintiff includes some allegations against this defendant in his First Amended Complaint, but not
enough to demonstrate any personal involvement in a constitutional deprivation. The allegations against
Warden Hodge focus on the warden’s retaliatory decision to transfer Plaintiff to Menard. However,
Plaintiff does not allege that the warden actually made the transfer decision. And, as already discussed in
this Order, Plaintiff fails to satisfy the requirements for stating a retaliation claim against anyone.

20

defendant cannot be said to be adequately put on notice of which claims in the complaint, if any,
are directed against him. Furthermore, merely invoking the name of a potential defendant is not
sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th
Cir. 1998) (“A plaintiff cannot state a claim against a defendant by including the defendant’s
name in the caption.”). Accordingly, Defendants Shicker, Federke, Funk, Rauner, Hodge, Nurse
John Does ##1-3, and Nurse Jane Does ##1-3 shall be dismissed without prejudice from this
action.
Identification of Unknown Defendants
Plaintiff shall be allowed to proceed with Counts 1, 2, and 5 against Grievance Officer
John Doe and Intake Nurse John/Jane Doe. Before service of the First Amended Complaint
(Doc. 12) can be made on them, these individuals must be identified with particularity. Where a
complaint states specific allegations describing conduct of individual prison officials sufficient to
raise a constitutional claim, but the names of those defendants are not known, the plaintiff should
have the opportunity to engage in limited discovery to ascertain the identity of those defendants.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009).
In this case, several Menard officials are already named as defendants, and the First
Amended Complaint states claims against them. These defendants shall respond to discovery
aimed at identifying Grievance Officer John Doe and Intake Nurse John/Jane Doe with
particularity. Guidelines for discovery will be set by the United States Magistrate Judge. Once
the names of these defendants are discovered, Plaintiff shall file a motion to substitute the newly
identified defendants in place of the generic designations in the case caption and throughout the
First Amended Complaint.

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Pending Motions
Prior to filing his First Amended Complaint (Doc. 12), Plaintiff filed two Motions to Add
Exhibits (Docs. 6 and 8) to his original Complaint. The Court does not accept piecemeal
amendments to complaints, and voluminous exhibits are unnecessary at this early stage in the
case. See FED. R. CIV. P. 26-37. Further, the proposed exhibits were intended to supplement the
original Compliant, which has now been superseded and replaced by Plaintiff’s First Amended
Complaint. The original Complaint is considered void. See Flannery v. Recording Indus. Ass’n
of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004). For these reasons, Plaintiff’s two Motions to Add
Exhibits (Docs. 6 and 8) are DENIED as MOOT.
Disposition
The Clerk is directed to ADD “John/Jane Doe (Menard Intake Nurse)” and “John Doe
(Menard Grievance Officer)” as the only two unknown defendants in this action in CM/ECF.
The Clerk is also directed to TERMINATE the following defendants as parties in
CM/ECF, based on Plaintiff’s failure to sufficiently plead claims against them: LOUIS
SHICKER, SERGEANT FEDERKE, SANDRA FUNK, BRUCE RAUNER, MARC
HODGE, NURSE JOHN DOES ##1-3, and NURSE JANE DOES ##1-3. All claims against
these defendants are DISMISSED without prejudice.
IT IS HEREBY ORDERED that COUNTS 3, 4, and 6 are DISMISSED without
prejudice and COUNT 8 is DISMISSED with prejudice, all for failure to state a claim upon
which relief may be granted. In addition, the Illinois state constitutional claims in COUNTS 1,
2, and 5 are DISMISSED without prejudice, and the Fourteenth Amendment due process claims
in COUNTS 1, 2, and 5 are DISMISSED with prejudice for the same reason.
IT IS ORDERED that, if Plaintiff wishes to revive Count 3, he must file the required

22

affidavits in this case on or before February 21, 2017. Should Plaintiff fail to timely file the
required affidavits, the dismissal of Count 3 will become a dismissal with prejudice upon the
expiration of this deadline. See FED. R. CIV. P. 41(b).
IT IS ORDERED that any claims not addressed in this Order are considered
DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that the Eighth Amendment claims in COUNTS 1, 2, and
5 are subject to further review against the following defendants: DOCTOR RITZ, ROBERT
SHEARING, JOHN TROST, M. MOLDENHAUER, FE FUENTES, McGLORN, GAIL
WALLS, ANGELA CRAIN, CINDY McDANIELS, RICHARD FERRELL, RICHARD
HARRINGTON, KIMBERLY BUTLER, JACQUELINE LASHBROOK, ANGELA
GROTT, BILLIE GREER, INTAKE NURSE JOHN/JANE DOE (once identified), and
GRIEVANCE OFFICER JOHN DOE (once identified). The same claims are DISMISSED
without prejudice against all other defendants for failure to state a claim upon which relief may
be granted.
IT IS ALSO ORDERED that COUNT 7 is subject to further review against Defendant
SALVADOR GODINEZ and JOHN BALDWIN (in their official capacities only). This
same claim is DISMISSED with prejudice against all other defendants.
With regard to COUNTS 1, 2, 5, and 7, Plaintiff has neither sought nor been granted
leave to proceed in forma pauperis in this action, and the Court will not automatically appoint
the United States Marshal to effect service of process upon Defendants SALVADOR
GODINEZ, JOHN BALDWIN, DOCTOR RITZ, ROBERT SHEARING, JOHN TROST,
M. MOLDENHAUER, FE FUENTES, McGLORN, GAIL WALLS, ANGELA CRAIN,
CINDY McDANIELS, RICHARD FERRELL, RICHARD HARRINGTON, KIMBERLY

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BUTLER, JACQUELINE LASHBROOK, ANGELA GROTT, BILLIE GREER, INTAKE
NURSE JOHN/JANE DOE (once identified), and GRIEVANCE OFFICER JOHN DOE
(once identified). However, if Plaintiff desires to request the appointment of the United States
Marshal to serve process on these defendants, Plaintiff shall file a Motion for Service of Process
at Government Expense, within 28 days of the date of entry of this order on or before February
21, 2017. The Clerk of Court is DIRECTED to mail to Plaintiff the Court’s Pro Se Litigant
Guide, containing forms and instructions for filing said motion.
If Plaintiff does not timely file a Motion for Service of Process at Government Expense,
it shall be Plaintiff’s responsibility to have Defendants served with a summons and copy of the
First Amended Complaint (Doc. 12) pursuant to Federal Rule of Civil Procedure 4. Plaintiff is
advised that only a non-party may serve a summons. See FED. R. CIV. P. 4(c)(2).
If Plaintiff requests the appointment of the United States Marshal, the Clerk of Court
shall prepare a summons and copies of the First Amended Complaint (Doc. 12) and this
Memorandum and Order for each defendant, and shall forward the same to the United States
Marshal for service. If Plaintiff does not file a Motion for Service of Process at Government
Expense within 28 days as ordered, the Clerk shall then prepare a summons for each defendant,
and shall forward the summonses and sufficient copies of the First Amended Complaint and this
Memorandum and Order to Plaintiff so that he may have defendants served.
Plaintiff is ORDERED to serve upon defendants or, if an appearance has been entered by
counsel, upon that attorney, 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 each defendant or
defendant’s counsel. Any paper received by a district judge or magistrate judge which has not

24

been filed with the Clerk or which fails to include a certificate of service will be disregarded by
the Court.
IT IS FURTHER ORDERED that service on Defendants JOHN DOE (Menard
Grievance Officer) and JOHN/JANE DOE (Menard Intake Nurse) shall not be effected until
such time as Plaintiff has identified these defendants by name in a properly filed Motion for
Substitution. Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide the Court with
the name and service address for this individual.
IT IS FURTHER ORDERED that, with respect to a defendant who no longer can be
found at the work address provided by Plaintiff, if the United States Marshal is appointed to
serve process pursuant to a motion by Plaintiff, the employer shall furnish the United States
Marshal with the defendant’s current work address, or, if not known, the defendant’s last-known
address.

This information shall be used only for effecting service of process.

Any

documentation of the address shall be retained only by the Marshal. Address information shall
not be maintained in the court file or disclosed by the Marshal.
Defendants are ORDERED to timely file an appropriate responsive pleading to the First
Amended 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 Stephen C. Williams for further pre-trial proceedings, including a plan for discovery
aimed at identifying the unknown defendants (John Doe (Menard Grievance Officer) and
John/Jane Doe (Menard Intake Nurse)).
Further, this entire matter is REFERRED to United States Magistrate Judge Williams
for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.

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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: 1/23/2017

s/ MICHAEL J. REAGAN
Chief Judge
U.S. District Court

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