Foggy v. Illinois Department of Corrections et al
Filing
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ORDER: Plaintiff is GRANTED leave to file a First Amended Complaint on or before February 17, 2017. Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 2/17/2017). Signed by Judge Staci M. Yandle on 1/20/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DELAWRENCE FOGGY, #B84899,
Plaintiff,
vs.
ILLINOIS DEPARTMENT OF
CORRECTIONS,
WEXFORD HEALTHCARE SERVICE,
KIMBERLY BUTLER, and
TONYA SMITH,
Defendants.
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Case No. 16-cv-01201-SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Delawrence Foggy, an inmate who is currently incarcerated at Western Illinois
Correctional Center, brings this civil rights action pursuant to 42 U.S.C. § 1983 for the
deprivation of his constitutional rights while an inmate at Menard Correctional Center
(“Menard”). Plaintiff claims he was subjected to extreme heat while in his cell at Menard and
received inadequate care when he lost consciousness as a result. (Doc. 1, pp. 7, 9). This case is
now before the Court for a preliminary review of the 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.
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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). Plaintiff’s Complaint does not survive preliminary review under
this standard.
The Complaint
According to the Complaint, Foggy was transferred to Menard on June 12, 2016. (Doc.
1, p. 7). Foggy allegedly spoke with a corrections officer at the prison about an “extreme heat
problem.” Id. He requested a fan but was denied. Id. He then requested to speak with a
sergeant about the situation but was denied that as well. Id. Foggy eventually passed out from
exposure to the “extreme ‘hot.’” Id. Nurse Smith came to his cell, took his “blood pulse” and
found it was “very, very, low.”
Id.
Even so, Foggy was refused treatment by Wexford
Healthcare Service. (Doc. 1, p. 3). Foggy wrote a grievance to Warden Kimberly Butler to
complain about the conditions of his confinement and/or the incident, but she did not respond.
(Doc. 1, p. 9).
Foggy now brings suit against the Illinois Department of Corrections (“IDOC”), Wexford
Healthcare Service (“Wexford”), Kimberly Butler (“Warden Butler”) and Tonya Smith (“Nurse
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Smith”) for depriving him of his constitutional rights. He requests monetary damages against
them. (Doc. 1, p. 8).
Discussion
The Court finds it convenient to divide the Complaint into the following enumerated
counts. The organization of these counts should not be construed as an opinion regarding their
merits. 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.
Count 1:
Defendants exhibited deliberate indifference to Plaintiff’s serious
medical needs in violation of the Eighth Amendment when they
refused him treatment for heat exposure and a “low blood pulse.”
Count 2:
Defendants subjected Plaintiff to unconstitutional conditions of
confinement in violation of the Eighth Amendment when they
failed to provide him with a fan or remedy the “extreme heat” in
Menard on or around June 12, 2016.
As discussed in more detail below, both Counts 1 and 2 will be dismissed for failing to
state a claim upon which relief may be granted. Any other intended claim that has not been
recognized by the Court is considered dismissed without prejudice as inadequately pled under
the Twombly pleading standard.
Count 1 – Medical Needs
Foggy claims that he received inadequate medical treatment during his incarceration at
Menard. The Eighth Amendment to the United States Constitution protects prisoners from cruel
and unusual punishment. See Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010). The Supreme
Court has recognized that “deliberate indifference to serious medical needs of prisoners” may
constitute cruel and unusual punishment.
Estelle v. Gamble, 429 U.S. 97, 104 (1976);
see Erickson v. Pardus, 551 U.S. 89, 94 (2006) (per curiam). To state a claim, a prisoner must
show that: (1) he suffered from an objectively serious medical need; and (2) state officials acted
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with deliberate indifference to the prisoner’s medical need, which is a subjective standard.
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845
(7th Cir. 2001).
A medical need is “serious” where it has either “been diagnosed by a physician as
mandating treatment” or where the need is “so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th
Cir. 1997). Whether an injury is serious enough is a very fact specific inquiry—seriousness may
be shown if an ordinary doctor opined an injury warranted treatment, if an injury significantly
impacted an individual's daily activities, or if an injury caused chronic or substantial pain, among
other things. Id.
Foggy has failed to establish that his medical need was objectively “serious.” Instead, he
merely states that he passed out and was treated by Nurse Smith for a low “blood pulse.” (Doc.
1, p. 7).
Foggy does not allege that he suffered from pain, serious health consequences or a
permanent injury as a result of heat exposure, nor does he provide any indication that treatment
was warranted.
The Complaint also fails to satisfy the subjective component of this claim. Deliberate
indifference is established when prison officials “know of and disregard an excessive risk to
inmate health” by being “‘aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists’” and “‘draw[ing] the inference.’” Greeno v. Daley, 414
F.3d 645, 653 (7th Cir. 2005) (quoting Farmer, 511 U.S. at 834). To be liable under section
1983 “an individual defendant must have caused or participated in a constitutional deprivation.”
Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (citations omitted). A
supervisor may be liable for deliberate, reckless indifference for the misconduct of subordinates
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if it can be shown that the supervisor knew about the conduct and facilitated it, approved it,
condoned it, or turned a blind eye to it for fear of what they might see. See id. (quoting Chavez
v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). A corporate entity will incur liability in a
civil rights action only where it established a policy that directly caused the constitutional
violation. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004).
Here, Foggy asserts that he was refused treatment but does not allege that he needed it,
requested it or directed a request for treatment to a defendant. (Doc. 1, p. 3). Moreover, Nurse
Smith treated him when she visited him in his cell and, at minimum, took his “blood pulse.”
(Doc. 1, p. 7). Foggy does not explain what more, if anything, Nurse Smith should have done.
Foggy also fails to allege any Wexford policy or practice that could have caused the alleged
violation.
With respect to Warden Butler, Foggy asserts that there “was a grievance written to
Warden Kimberly Butler” but that she refused to reply back. (Doc. 1, p. 9). He does not indicate
what the grievance said and he does not allege that she was otherwise involved with the alleged
lack of treatment. See Perez v. Fenoglio, 792 F.3d 768, 781-782 (7th Cir. 2015) (grievance
defendants may be liable for deliberate indifference to a serious medical need where a detailed
grievance puts officials on notice of deprivation and no action is taken to address matter).
Without stating more, there are insufficient facts to render Nurse Smith, Wexford, or Warden
Butler liable.
Further, Foggy cannot proceed with this claim for monetary relief against IDOC. The
Supreme Court has held that “neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983” who are subject to suit. Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989). The State of Illinois and its agencies are also shielded from suits for money
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damages on sovereign immunity grounds because the Eleventh Amendment prohibits private
parties from filing a federal lawsuit for money damages against a state, state agency, or state
official unless the state waives its Eleventh Amendment immunity by consenting to suit, or
Congress unequivocally abrogates the state’s immunity. See Thomas v. Illinois, 697 F.3d 612,
613 (7th Cir. 2012). Illinois has not consented to suit in this case, and it is well-settled that
Congress did not abrogate states’ sovereign immunity when it enacted § 1983. Id.; Quern v.
Jordan, 440 U.S. 332, 342 (1979). Because Foggy seeks only money damages in this suit, the
Illinois Department of Corrections must also be dismissed.
Foggy has not provided “enough facts to state a claim to relief that is plausible on its
face” and has satisfied neither the objective nor subjective branches of the applicable standard
for deliberate indifference claims. Twombly, 550 U.S. at 570.
Count 1 will therefore be
dismissed without prejudice.
Count 2 – Conditions of Confinement
Foggy also claims he experienced unconstitutional conditions of confinement when he
was subjected to “extreme heat” while incarcerated at Menard. Determining what conditions
might constitute a violation of the Eighth Amendment is a factually nuanced inquiry. See Gillis
v. Litscher, 498 F.3d 488, 492-495 (7th Cir. 2006) (collecting cases). While certain conditions in
isolation may not constitute an Eighth Amendment violation, those same conditions taken
together may state a claim. Id. at 493. Under the Eighth Amendment, life’s necessities include
shelter and heat. Id. (citations omitted). The Seventh Circuit has also found that conditions such
as confinement in a cold cell without bedding or clothing, confinement without a bed for two
days, denial of clothing for three days, and denial of any human interaction or personal property
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for three days or more could be conditions that contribute to the existence of an Eighth
Amendment violation. See id. at 492-95.
By contrast, temporary discomforts or inconveniences are not sufficient to state a
constitutional violation. See e.g. Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988)
(holding that being detained for five days in a roach infested cell without hygiene items was not
an Eighth Amendment violation where the incident was isolated to just one inmate). In Harris,
the Seventh Circuit noted that even though the inmate suffered considerable unpleasantness, the
conditions of his confinement did not lead to actual physical harm. Harris, 839 F.2d at 1235.
Similarly, in Green v. Walker, 398 Fed. App’x 166, 169 (7th Cir. 2010), the Seventh Circuit
refused to overturn summary judgment in favor of prison officials when the prisoner had “not
pointed to any evidence reflecting that the heat carried on at extreme level for an extended
duration or that he suffered any harm from the heat.”
Foggy’s allegations are insufficient to state conditions of confinement claim. He does not
specify how long he was forced to endure the heat or how hot he believes it actually was. He
also does not indicate who he told about the issue, other than one unnamed corrections officer
who is not a defendant in this action. His vague reference to a grievance that he filed with
Warden Butler lacks necessary detail to support a conditions of confinement claim, even at this
early stage. He also does not allege that he suffered any lasting harm. At this juncture, Foggy
has not presented sufficient factual allegations to proceed with this claim beyond threshold
screening. Therefore, Count 2 shall be dismissed without prejudice for failure to state a claim.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated above, COUNTS 1 and 2 are
DISMISSED without prejudice for failure to state a claim upon which relief may be granted
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against all of the defendants.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before
February 17, 2017. Should Plaintiff fail to file his First Amended Complaint within the allotted
time or consistent with the instructions set forth in this Order, the entire case shall be dismissed
with prejudice for failure to comply with a court order and/or for failure to prosecute his claims.
FED. R. APP. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997);
Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e. 16-cv-1201SMY). The pleading shall present each claim in a separate count, and each count shall specify,
by name, each defendant alleged to be liable under the count, as well as the actions alleged to
have been taken by that defendant. Plaintiff should attempt to include the facts of his case in
chronological order, inserting each defendant’s name where necessary to identify the actors.
Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include only related
claims in his new complaint. Claims found to be unrelated to the Eighth Amendment deliberate
indifference and conditions of confinement claims will be severed into new cases, new case
numbers will be assigned, and additional filing fees will be assessed. To enable Plaintiff to
comply with this order, the CLERK is DIRECTED to mail Plaintiff a blank civil rights
complaint form.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint.
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Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915(e)(2).
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file a First Amended Complaint.
See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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: January 20, 2017
s/ STACI M. YANDLE
U.S. District Judge
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