Cox v. Lashbrook et al
Filing
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ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/8/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES A. COX, K53474
Plaintiff,
vs.
JACQUELINE LASHBROOK,
CHRISTINE BROWN,
ALLAN J. BRUMMEL,
JOHN R. BALDWIN,
JESSE D. CARPENTER,
MRS. CLARK,
MR. WOOD,
T PEEK,
BART LIND,
MR. CLELAND,
JEFF CRIPPS,
MR. HEARTMAN,
LPN M. HILL,
CHARLES H. HECK,
MARCUS A. MYERS,
VIPIN SHAH,
STACY BROWN,
A HUSEMAN,
MRS. BRINTNIE, and
WEXFORD HEALTH SOURCES,
Defendants.
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Case No. 16 cv–1096 NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff James A. Cox, an inmate of the Illinois Department of Corrections (“IDOC”)
currently housed at Pinckneyville Correctional Center, brings this action for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983. In his First Amended Complaint, Plaintiff
claims the defendants have been deliberately indifferent to his serious medical issues and issued
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him a false disciplinary ticket in violation of the Eighth and Fourteenth Amendments. (Doc. 8).
This case is now before the Court for a 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.
(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 of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the First Amended Complaint and any supporting exhibits, the
Court finds it appropriate to allow this case to proceed past the threshold stage.
The Amended Complaint
In his First Amended Complaint (Doc. 8), Plaintiff makes the following allegations: on
August 6, 2015, Plaintiff was attacked and beaten with a hard-cover book by his cellmate.
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(Doc. 8, p. 60). Plaintiff screamed, kicked the cell door, and pressed the emergency button in his
cell in order to get help. Id. Plaintiff pressed the emergency button for ten minutes, but no one
responded or came to his cell to assist him. Id. After ten minutes, Plaintiff got the attention of an
inmate worker who fetched the floor officer, Defendant Wood. (Doc. 8, p. 62). Wood opened the
chuck-hole in the cell door and instructed Plaintiff to turn around and put his hands through the
hole. Id. Plaintiff complied, rendering him defenseless. Id. Plaintiff’s cellmate took advantage of
Plaintiff’s vulnerability and struck him on the left side of his face three or four times with the
book. (Doc. 8, pp. 62-63). The corner of the book went into Plaintiff’s left eye socket, causing
the vessels in his left eyeball to burst and his eye to turn red. (Doc. 8, p. 63). Blood gushed from
Plaintiff’s eyebrow and eye socket on the left side of his face. (Doc. 8, p. 62). The officer
screamed at Plaintiff’s assailant to stop during this attack. Id. After the attack, Plaintiff’s left
eyelid was black and blue and swollen shut. (Doc. 8, p. 63).
Plaintiff was taken to the health care unit, and Defendant Peek, a nurse, cleaned the blood
on Plaintiff’s face. Id. She did not open his eyelid to inspect the severity of his eye injury. Id. She
marked the injury as minor, with no follow-up treatment required, and Defendant Dr. Shah
ultimately signed off on the report without actually examining Plaintiff. Id. Plaintiff spent only
nine minutes in the health care unit that morning. (Doc. 8, p. 64). Defendant Lind, an intelligence
officer, walked Plaintiff to the segregation building after he left the health care unit. Id. During
the short walk, Lind asked Plaintiff questions about the incident. Id. Plaintiff requested
photographs of his injury and to see a medical doctor, to which Lind replied a doctor would
come to Plaintiff’s building for sick call appointments and Plaintiff could be treated then. (Doc.
8, p. 65). Plaintiff found out later the doctor would only do sick call appointments once per
week, and that he had just missed the doctor for that week. Id.
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The next day, Plaintiff received a disciplinary ticket written by Lind. Id. The ticket
included an admission by Plaintiff’s cellmate that he had struck Plaintiff with a book. Id.
Plaintiff wrote many request slips about the ticket, outlining the details of the attack and
questioning why Lind, who was not present during the attack, wrote the ticket. Id. Plaintiff filed
a grievance, alleging that Lind was covering up for Wood, who was present during the attack,
because Wood was inexplicably absent from the paperwork on the issue. (Doc. 8, p. 67). Plaintiff
also wrote to Lt. Furlow, who responded to one of his grievances. Id. Plaintiff asserts
Pinckneyville’s staff is trained to lie on fighting tickets, and Defendants Myers and Heck will
always find both parties guilty, so the victim cannot sue the State of Illinois for failure to protect.
(Doc. 8, p. 71).
After the attack, Plaintiff was put in segregation and was not given any medication or
other means to alleviate his pain. (Doc. 8, pp. 67-68). He suffered “every minute of every day
and nobody seemed to care. [He] begged everyone for help,” to no avail. (Doc. 8, p. 68). Plaintiff
signed up for sick call five times. Id. Ten days later, on August 16, 2015, Plaintiff was removed
from the cell and saw a nurse, who added his name to the doctor call line. Id. On August 18,
2015, twelve days after the attack, Plaintiff saw a medical doctor for the first time. (Doc. 8,
p. 69). Defendant Dr. Shah did not examine Plaintiff’s eye injury, however, and in fact never got
up from his chair during the appointment. Id. Shah told Plaintiff that he was not an eye doctor
and was actually there to see Plaintiff for other medical issues. Id. Plaintiff told Shah his left eye
pupil was stuck open and the light was hurting his eye and causing him headaches. Id. Shah then
told Plaintiff he would personally put him in for an eye doctor referral. Id. After the appointment,
Plaintiff was taken back to segregation. Id.
Plaintiff did not get to see the eye doctor right away. (Doc. 8, p. 70). Plaintiff wrote
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twenty request slips to the health care unit and sent emergency grievances to Defendant
Lashbrook about the issue, to no avail. Id. On September 19, 2015, Plaintiff was called to the
health care unit to see Dr. Shah, who noted that he did not know why Plaintiff had not yet seen
the eye doctor. Id. On September 22, 2015, forty-five days after the attack, Plaintiff was taken to
the health care unit to see the eye doctor, Defendant Brummel. (Doc. 8, p. 73). Plaintiff
explained that he was hit in the eye with the corner of a book, and Brummel noted that it was the
first he had heard of it. Id. Brummel also noted that if he would have seen Plaintiff sooner, he
could have treated the eye with specific eye drops that could have prevented further eye damage.
Id. Brummel ordered prescription eye glasses for Plaintiff, but they were the wrong prescription.
(Doc. 8, p. 74). Plaintiff’s vision is still blurry. Id. Plaintiff’s first appointment with Brummel
lasted fifteen minutes. Id.
On December 1, 2015, Plaintiff was given a different eye examination and was told his
vision in his left eye was deteriorating. Id. Brummel determined then, 115 days after Plaintiff’s
injury, that Plaintiff’s injury warranted an x-ray of Plaintiff’s eyes. Id. Plaintiff got an x-ray, and
when Brummel reviewed the results, he admitted that there was clear damage to Plaintiff’s left
pupil. (Doc. 8, p. 75). Brummel told Plaintiff that he would not refer him for surgery despite his
injuries because it is IDOC’s policy to refuse to pay for eye surgery if an inmate still has one
good eye. Id. Brummel told Plaintiff that he could pay for the surgery once he got out of prison.
(Doc. 8, p. 76). On February 10, 2016, Plaintiff filed a grievance against Brummel for refusing to
submit his surgery for approval. Id.
Plaintiff had 20/20 vision prior to the attack. Id. His vision is now blurry, and his eye
glasses do not help. Id. Further, his left pupil does not open or close, instead remaining open at
all times. Id. Plaintiff takes so much pain medication for his injuries that his stomach hurts him,
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and he is dizzy and light-headed. (Doc. 8, p. 75). Plaintiff seeks monetary damages from the
defendants. (Doc. 8, p. 79).
Discussion
Based on the allegations of the First Amended Complaint, the Court finds it convenient to
divide the pro se action into five 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 regarding their merit.
Count 1 –
Wood and Clark failed to protect Plaintiff from a violent attack by
his cellmate in violation of the Eighth Amendment.
Count 2 –
Lind issued Plaintiff a false disciplinary ticket for fighting to shield
Wood from liability for Plaintiff’s injury in violation of the
Fourteenth Amendment.
Count 3 –
Heck and Myers have a practice of finding both inmates guilty for
fighting regardless of the circumstances in order to shield IDOC
and other staff from liability, in violation of the Fourteenth
Amendment.
Count 4 –
Peek, Shah, and Brummel showed deliberate indifference to
Plaintiff’s serious medical needs involving an injured left eye and
pain associated therewith in violation of the Eighth Amendment.
Count 5 –
Baldwin, Lashbrook, Stacy Brown, Hill, and Christine Brown
showed deliberate indifference to Plaintiff’s serious medical needs
involving an injured left eye and pain associated therewith in
violation of the Eighth Amendment by failing to respond to
Plaintiff’s grievances and complaints regarding his lack of
treatment.
As discussed in more detail below, Counts 1 through 5 will be allowed to proceed past
threshold. Any other intended claim that has not been recognized by the Court is considered
dismissed with prejudice as inadequately pleaded under the Twombly pleading standard.
Count 1 – Failure to Protect
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials
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have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006).
However, not every harm caused by another inmate translates into constitutional liability for the
corrections officers responsible for the prisoner’s safety. Farmer, 511 U.S. at 834. In order for a
plaintiff to succeed on a claim for failure to protect, he must show that he is incarcerated under
conditions posing a substantial risk of serious harm, and that the defendants acted with
“deliberate indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must
prove that prison officials were aware of a specific, impending, and substantial threat to his
safety, often by showing that he complained to prison officials about a specific threat to his
safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). “A generalized risk of violence is not
enough, for prisons are inherently dangerous places.” Wilson v. Ryker, 451 F. App’x 588, 589
(7th Cir. 2011) (citing Brown v. Budz, 398 F.3d 904, 909, 913 (7th Cir. 2005); Riccardo v.
Rausch, 375 F.3d 521, 525 (7th Cir. 2004). Conduct that amounts to negligence or inadvertence
is not enough to state a claim. Pinkston, 440 F.3d at 889 (discussing Watts v. Laurent, 774 F.2d
168, 172 (7th Cir. 1985)).
Notably, correctional officers are not required to place themselves in harm’s way when
attempting to break up a fight between inmates. Guzman v. Sheahan, 495 F.3d 852, 858 (7th Cir.
2007). Furthermore, a defendant’s willingness to take affirmative steps aimed at stopping the
situation is relevant to whether that defendant showed deliberate indifference. See id.; Shields v.
Dart, 664 F.3d 178, 181 (7th Cir. 2011) (defendant “took other steps to intervene by promptly
calling for back-up and monitoring the fight from the secure area until other officers arrived”).
In this case, Plaintiff has alleged that Wood failed to respond in a timely manner to his
shouts and emergency button summons, and when Wood did respond, he put Plaintiff in harm’s
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way by cuffing him first without assessing whether doing so would put him at greater risk of
harm. Wood also shouted at Plaintiff’s cellmate to stop the attack on Plaintiff once it reconvened,
which lends itself to the argument that his actions did not, in fact, show deliberate indifference.
At this stage, however, Plaintiff has put forth a claim for failure to protect against Wood, so
Count 1 may proceed against him. Count 1 will be dismissed as to Clark, however, as the only
allegation Plaintiff makes against Clark is that, as the cell placement officer, she moved him into
the cell in which he was attacked. (Doc. 8, p. 60). Plaintiff does not allege Clark knew of a
specific, impending, and substantial threat to his safety, and Clark cannot be held liable for the
generalized risk of harm Plaintiff faces due to his incarceration.
Count 2 –False Ticket Due Process
Plaintiff claims that his rights were violated when Lind wrote him a disciplinary ticket for
fighting, which subsequently led to a disciplinary hearing. Plaintiff alleges that he was attacked
by another inmate, that he was not fighting, and that Lind knew this. Plaintiff claims that this
amounted to a violation of due process.
In Hanrahan v. Lane, 747 F.2d 1137, 1140–41 (7th Cir. 1984), the Seventh Circuit held
that the filing of false disciplinary charges by a correctional officer does not state a Fourteenth
Amendment claim when the accused inmate is given a subsequent hearing on those charges in
which the inmate is afforded the procedural protections outlined in Wolff v. McDonnell, 418 U.S.
539 (1974). The Seventh Circuit reasoned that prisoners have a right “to be free from arbitrary
actions of prison officials,” Hanrahan, 747 F.2d at 1140, but determined that the procedural
protections outlined in Wolff provided the appropriate protection against arbitrary actions taken
by a correctional officer such as issuing the inmate a fabricated conduct violation.
In the First Amended Complaint, Plaintiff argues that he was not provided the procedural
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protections outlined in Wolff because he was found guilty by the adjustment committee, Heck
and Myers, pursuant to their policy of finding inmates guilty for fighting tickets to shield IDOC
staff from liability for failure to protect. A plaintiff states a claim for violation of procedural due
process rights when he alleges that defendants have filed and/or approved disciplinary tickets,
reports, and other documents that contain false charges that are not supported by any evidence.
Webb v. Anderson, 224 F.3d 649 (7th Cir. 2000); Black v. Lane, 22 F.3d 1395, 1402 (7th Cir.
1994). Plaintiff has sufficiently made these allegations, in that he claims that Lind was aware that
Plaintiff was a victim of violence, but wrote the disciplinary ticket for fighting regardless, and
that he was denied an impartial disciplinary hearing. These allegations are sufficient to state a
claim for a violation of procedural due process against Lind for the filing of a false disciplinary
ticket, so Count 2 will be allowed to proceed past threshold.
Count 3 – Disciplinary Hearing Due Process
Prison disciplinary hearings satisfy procedural due process requirements where an inmate
is provided: (1) written notice of the charge against the prisoner twenty four (24) hours prior to
the hearing; (2) the right to appear in person before an impartial body; (3) the right to call
witnesses and to present physical/documentary evidence, but only when doing so will not unduly
jeopardize the safety of the institution or correctional goals; and (4) a written statement of the
reasons for the action taken against the prisoner. See Wolff v. McDonnell, 418 U.S. 539, 563-69
(1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988).
Not only must the requirements of Wolff be satisfied, but the decision of the disciplinary
hearing board must be supported by “some evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th
Cir. 1994). To determine whether this standard has been met, courts must determine whether the
decision of the hearing board has some factual basis. Webb v. Anderson, 224 F.3d 649 (7th Cir.
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2000). Even a meager amount of supporting evidence is sufficient to satisfy this inquiry. Scruggs
v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).
Though this is a low standard, Plaintiff argues that it has not been met in this case,
because he was found guilty based on a policy of doing so in order to shield IDOC staff from
potential liability, and not based on the evidence. There is a presumption that administrative
review boards have acted properly in proceedings such as this one, and often claims such as this
one are dismissed in later stages of the proceedings for lack of support, see Higgason v. Lemmon,
6 F. App’x 433, 435 (7th Cir. 2001) (inmate’s unsupported allegations that prison disciplinary
board was ordered to find inmate guilty was insufficient to overcome presumption that board
discharged duties properly); Snell v. Jackson, No. 04–73883–DT, 2006 WL 212025, at *3–5
(E.D. Mich. Jan. 25, 2006). However daunting this presumption may prove to be, it is a
consideration for a later time, as it is enough that Plaintiff has alleged that Heck and Myers acted
improperly in causing him to be found guilty. This is sufficient to create a question as to whether
Heck and Myers acted impermissibly in finding him guilty without properly considering the
evidence in his hearing, and for this reason, this claim cannot be dismissed at this time.
Count 4 – Deliberate Indifference to Medical Needs
A prisoner raising a claim against a prison official for deliberate indifference to the
prisoner’s serious medical needs must satisfy two requirements. The first requirement compels
the prisoner to satisfy an objective standard: “[T]he deprivation alleged must be, objectively,
‘sufficiently serious[.]’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter,
501 U.S. 294, 298 (1991)). The Seventh Circuit considers the following to be indications of a
serious medical need: (1) where failure to treat the condition could “result in further significant
injury or the unnecessary and wanton infliction of pain;” (2) “[e]xistence of an injury that a
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reasonable doctor or patient would find important and worthy of comment or treatment;”
(3) “presence of a medical condition that significantly affects an individual’s daily activities;” or
(4) “the existence of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th
Cir. 1997).
The second requirement involves a subjective standard: “[A] prison official must have a
‘sufficiently culpable state of mind,’” one that amounts to “‘deliberate indifference’ to inmate
health or safety.” Id. (quoting Wilson, 501 U.S. at 297). Liability under the deliberateindifference standard requires more than negligence, gross negligence or even recklessness;
rather, it is satisfied only by conduct that approaches intentional wrongdoing, i.e., “something
less than acts or omissions for the very purpose of causing harm or with knowledge that harm
will result.” Farmer, 511 U.S. at 835.
Plaintiff has described an adequately serious condition with respect to his left eye injury,
and the pain and suffering he has endured from it, to meet the objective prong of the medical
indifference standard. Plaintiff also alleges that Peek more or less ignored his injury when he
came to the health care unit immediately after sustaining it, despite the blood on his face. He also
claims she reported it was not serious without inspecting it at all, when upon inspection, she
would have discovered it was in fact severe. Shah also allegedly largely ignored Plaintiff’s
injury, failed to inspect it, and failed to arrange for it to be inspected by an eye doctor in a
reasonable amount of time. Brummel, the eye doctor, allegedly did only a cursory inspection of
Plaintiff’s eye the first appointment Plaintiff had, and later decided Plaintiff’s injury warranted
an x-ray. When the x-ray results showed Plaintiff needed surgery, Brummel allegedly refused to
seek approval for Plaintiff’s surgery, citing a “one good eye” policy of IDOC. At this early stage,
these allegations satisfy the subjective component of the deliberate indifference standard.
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Count 4 against Peek, Shah, and Brummel will therefore be allowed to proceed.
Count 5 – Grievance Officials
It is well established that “[f]or constitutional violations under § 1983 ... a government
official is only liable for his or her own misconduct.” E.g., Locke v. Haessig, 788 F.3d 662, 669
(7th Cir. June 5, 2015). “This means that to recover damages against a prison official acting in a
supervisory role, a § 1983 plaintiff may not rely on a theory of respondeat superior and must
instead allege that the defendant, through his or her own conduct, has violated the Constitution.”
Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). “An inmate’s correspondence to a prison administrator may . . . establish a basis for
personal liability under § 1983 where that correspondence provides sufficient knowledge of a
constitutional deprivation.” Perez, 792 F.3d at 781-82 (citing Vance v. Peters, 97 F.3d 987, 993
(7th Cir. 1996)) (“[A] prison official’s knowledge of prison conditions learned from an inmate’s
communications can, under some circumstances, constitute sufficient knowledge of the
conditions to require the officer to exercise his or her authority and to take the needed action to
investigate and, if necessary, to rectify the offending condition.”). “In other words, prisoner
requests for relief that fall on ‘deaf ears’ may evidence deliberate indifference.” Perez, 792 F.3d
at 782.
Plaintiff has alleged that he informed, via grievance or otherwise, many of the defendants
about his medical issues. He claims that he contacted, among others, Baldwin, Lashbrook, Stacy
Brown, Hill, and Christine Brown about his pain and suffering, and that they had personal
knowledge of it. (Doc. 8, p. 59). He has attached many documents and grievances to his First
Amended Complaint to support this claim against Baldwin (Doc. 8, p. 28), Lashbrook (Doc. 8,
pp. 29, 33, 40), Stacy Brown (Doc. 8, pp. 33, 35, 38, 39), Hill (Doc. 8, pp. 43, 47), and Christine
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Brown (Doc. 8, pp. 57, 60). He claims that, despite his complaints, these defendants failed to
respond to or seek to remedy the alleged constitutional violations, instead turning a blind eye to
them. At this stage, this is enough to state a claim against Baldwin, Lashbrook, Stacy Brown,
Hill, and Christine Brown, so Count 5 will proceed.
Remaining Defendants
Plaintiff has included Jesse D. Carpenter, the inmate who allegedly attacked him, as a
defendant in this lawsuit. A plaintiff cannot proceed with a federal claim under § 1983 against a
non-state actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Gayman v.
Principal Fin. Servs., Inc., 311 F.3d 851, 852-53 (7th Cir. 2003). Carpenter is a prisoner, not a
state actor. Because of this, he will be dismissed with prejudice from this lawsuit.
Plaintiff has also included Jeff Cripps, a social worker, Mr. Cleland, Chief of Security,
Mr. Heartman, counselor for segregation, Ms. Brintnie, an nurse, and Mr. Huseman, a member of
the medical staff in the prison, as defendants in this action. Plaintiff has not made any specific
allegations against these defendants in his statement of claim, nor has he provided any
information regarding how these defendants may have been involved with, aware of, or capable
of preventing or remedying, any of the constitutional violations alleged.
The reason that plaintiffs, even those proceeding pro se, for whom the Court is required
to liberally construe complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), 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. “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.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiff has merely alleged that he “made
contact with” these defendants and that they “had personal knowledge of his pain and suffering,”
without providing any further detail. (Doc. 1, p. 59). The allegations against these defendants
therefore do not satisfy the Twombly pleading standard, and Cleland, Cripps, Heartman, Brintnie,
and Huseman will be dismissed, without prejudice, from this action.
Finally, Plaintiff has included Wexford Health Sources as a defendant in this action.
Plaintiff makes no allegation that any individual defendant acted or failed to act as a result of an
official policy espoused by Wexford, which would be required in order to hold Wexford liable in
this action. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004)
(corporation can be held liable for deliberate indifference only if it had a policy or practice that
caused the violation). Plaintiff instead alleges that Springfield, presumably meaning IDOC,
propagates the “one good eye” policy cited by Brummel. For this reason, Wexford will be
dismissed without prejudice from this action.
Pending Motions
Plaintiff has filed two Motions for Recruitment of Counsel (Docs. 3, 10), which are
REFERRED to United States Magistrate Judge Donald G. Wilkerson for a decision.
Plaintiff has filed two Motions for Service of Process at Government Expense (Docs. 4,
11), which are DENIED as moot. It is not necessary for a litigant proceeding in forma pauperis
to file a motion requesting service of process by the United States Marshals Service or other
process server because the Clerk will issue summons and the Court will direct service for any
complaint that passes preliminary review.
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Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against WOOD. This
claim is considered DISMISSED without prejudice as against CLARK.
IT IS FURTHER ORDERED that COUNT 2 shall PROCEED against LIND.
IT IS FURTHER ORDERED that COUNT 3 shall PROCEED against HECK and
MYERS.
IT IS FURTHER ORDERED that COUNT 4 shall PROCEED against PEEK, SHAH,
and BRUMMEL.
IT IS FURTHER ORDERED that COUNT 5 shall PROCEED against BALDWIN,
LASHBROOK, STACY BROWN, HILL, and CHRISTINE BROWN.
IT IS FURTHER ORDERED that CARPENTER is DISMISSED with prejudice, and
CLARK, CLELAND, CRIPPS, HEARTMAN, BRINTNIE, HUSEMAN, and WEXFORD
HEALTH SOURCES are DISMISSED without prejudice from this action because the First
Amended Complaint fails to state a claim for relief against these defendants.
IT IS FURTHER ORDERED that as to COUNTS 1 through 5, the Clerk of Court shall
prepare for WOOD, LIND, HECK, MYERS, PEEK, SHAH, BRUMMEL, BALDWIN,
LASHBROOK, STACY BROWN, HILL, and CHRISTINE BROWN: (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 First Amended
Complaint, and this Memorandum and Order to each defendant’s place of employment as
identified by Plaintiff. If any 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
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defendant pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
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 each defendant (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 the 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.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
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 Donald G. Wilkerson for further pre-trial proceedings, including a decision on Plaintiff’s
Motions for Recruitment of Counsel (Docs. 3, 10). Further, this entire matter shall be
REFERRED to United States Magistrate Judge Donald G. Wilkerson 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 Section 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact
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that his application to proceed in forma pauperis has been granted. See 28 U.S.C.
§ 1915(f)(2)(A).
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: May 8, 2017
__________________________
NANCY J. ROSENSTENGEL
United States District Judge
17
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