Knox v. Butler et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 2/3/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VANDAIRE KNOX,
Plaintiff,
No. 17-cv-00092-DRH

v.
KIMBERLY BUTLER,
CAMERON WATSON,
MAJOR HASSAMEYER,
LIEUTENANT MEYER,
PELKER,
JOHN DOE, 1,
JOHN DOE, 2,
JOHN TROST,
MIKE,
SUSAN KIRK,
IDOC, and
WEXFORD HEALTH SOURCES,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Vandaire Knox, an inmate in Menard Correctional Center, brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C.
§ 1983. Plaintiff suffers from persistent swelling and severe pain in his left knee.
As a result, Plaintiff has a knee brace permit and a low bunk/low gallery permit.
In June 2015, after Plaintiff was transferred to Menard’s North II segregation unit,
Defendants confiscated Plaintiff’s knee brace for 49 days and did not honor
Plaintiff’s low bunk/low gallery permit. When Plaintiff filed grievances regarding

this conduct, Defendants moved Plaintiff to a more restrictive cell. Additionally,
in September 2015, when Plaintiff was released from segregation, Defendants
housed Plaintiff in a location that made it difficult, if not impossible, for an
individual with Plaintiff’s disabilities to commute to the showers. As a result,
Plaintiff was unable to attend showers for 390 days. Plaintiff alleges Defendants’
conduct caused severe pain and exacerbated his knee injury.
In connection with these claims, Plaintiff sues Kimberly Butler (Warden),
Cameron Watson (Assistant Warden), Major Hassameyer (Cell House Major),
Lieutenant Meyer (Cell House Lieutenant), Pelker (Cell House Sergeant), John Doe
1 (Cell House Gallery Officer), John Doe 2 (Cell House Gallery Officer), John
Trost (Doctor), Mike (Medical Technician), Susan Kirk

(Nurse), Illinois

Department of Corrections (“IDOC”), and Wexford Health Sources (“Wexford”)
(Corporate Healthcare Provider). Plaintiff has sued all Defendants in their official
and individual capacities. He seeks monetary damages and injunctive relief.
Plaintiff’s request for injunctive relief references a preliminary injunction
and a temporary restraining order (“TRO”).

Out of an abundance of caution, the

Court construes the Complaint as including a Motion for a TRO pursuant to
Federal Rule of Civil Procedure 65(b), a Motion for Preliminary Injunction
pursuant to Federal Rule of Civil Procedure 65(a), as well as a general prayer for
injunctive relief.
The Court denied the Motion for a TRO on February 2, 2017 and reserved
ruling on the Motion for Preliminary Injunction. (Doc. 5). As is discussed more

fully below, the Motion for Preliminary Injunction will be referred to the
magistrate judge for prompt disposition.
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.
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, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross
“the line between possibility and plausibility.” Id. at 557. At this juncture, the
factual allegations of the pro se complaint are to be liberally construed.

Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

See

Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A; portions of this
action are subject to summary dismissal.
Plaintiff’s Prior 1983 Action Involving Left Knee Injury
This is not Plaintiff’s first action raising claims pertaining to his left knee.
In 2014, Plaintiff filed a pro se civil rights action pursuant to 42 U.S.C. § 1983
alleging 19 defendants at Menard were deliberately indifferent to his left knee
injury.

See Knox v. Shearing et al, Case No. 3:14-cv-193-MJR (“Prior Case”).

With the exception of Butler, the instant action does not involve the same
defendants.
According to the complaint in the Prior Case, Plaintiff was transferred to
Menard in January 2011 with a preexisting knee injury. Plaintiff raised deliberate
indifference claims premised on allegations that the defendants either failed to
provide or renew Plaintiff’s pain medication, or gave him medication known to be
ineffective and to cause harmful side effects.

Plaintiff sought damages,

declaratory relief, and injunctive relief.
The case moved forward and, on November 1, 2016, the parties reached a
confidential settlement agreement. (Prior Case, Doc. 153). 1 That same day, a 60day order was entered. (Prior Case, Doc. 154).

The 60-day order deadline was

recently extended to March 7, 2017 in response to a request from the parties
seeking additional time to consummate settlement.

1

(Prior Case, Doc. 160).

The Court notes an issue pertaining to injunctive relief is presently being appealed. (Prior Case,
Doc. 54, 87).

Accordingly, Plaintiff’s Prior Case is still pending. The Court also notes that in
January 2016 (shortly after the events at issue in the instant action occurred),
Plaintiff made an oral motion for preliminary injunction. (Prior Case, Doc. 113).
The record does not reflect the matters at issue in relation to Plaintiff’s oral
motion for preliminary injunction and the motion was subsequently withdrawn.
(Prior Case, Doc. 120). Accordingly, the Court cannot determine if Plaintiff’s oral
motion for preliminary injunction involved any of the constitutional violations
alleged in the instant case.
The Court has reviewed the Prior Case in an effort to determine whether the
doctrine of claim preclusion, or res judicata, precludes Plaintiff from litigating the
constitutional claims raised in the instant case. See Briggs-Muhammad v. SSM

Healthcare Corp., 567 F. App’x 464, 464-65 (7th Cir. 2014) (at the screening
stage, it is permissible to rely on an affirmative defense, such as claim preclusion,
that is “apparent and unmistakable” from the face of the complaint and the
documents in the district court's possession to dismiss a case). Claim preclusion
“is an affirmative defense designed to prevent the ‘relitigation of claims that were
or could have been asserted in an earlier proceeding.’ ” Rizzo v. Sheahan, 266
F.3d 705, 714 (7th Cir. 2001) (citation omitted). “A consent decree is res judicata
and thus bars either party from reopening the dispute by filing a fresh lawsuit.
Alternatively, it is a contract in which the parties deal away their right to litigate
over the subject matter.” United States v. Fisher, 864 F.2d 434, 439 (7th Cir.
1988) (internal citations omitted).

That “another case is pending does not raise

questions of res judicata. Only a prior judgment is entitled to preclusive effect.”

Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994) (emphasis in original). As
noted, the Prior Action remains pending.

Further, although deliberate

indifference to Plaintiff’s knee condition is at issue in both cases, the cases involve
different defendants and the violations at issue here occurred at a later time than
the violations alleged in the complaint filed in the Prior Case. Finally, the Court
does not have access to the parties’ confidential settlement (which is not yet final)
and cannot make any determinations based on its content. Accordingly, at this
point in the litigation, the Court cannot say that any of Plaintiff’s claims are
precluded by the doctrine of claim preclusion or res judicata.
The Complaint
Plaintiff suffers from left knee pain and wears a knee brace for stability.
(Doc. 1, p. 4).

In January 2015, Plaintiff was issued a low bunk/low gallery

permit and a knee brace permit. (Doc. 1, p. 4; Doc. 1-1, p. 13). The expiration
date for the permit was January 15, 2016. (Doc. 1-1, p. 13).
On June 30, 2015, Plaintiff was transferred to Menard’s North II
segregation unit. Id. Upon arrival, Plaintiff was placed in a shower to be strip
searched. Id. Doe 1, an unidentified cell house gallery officer, informed Plaintiff
that he had to remove his knee brace. Id. Plaintiff explained that his knee caused
him a lot of pain, the knee brace was necessary for stabilization, and he showed
Doe 1 his knee brace permit.

Id.

Plaintiff also explained that he had a low

bunk/low gallery permit and could not climb stairs due to his knee issues. Id.

Doe 1 disregarded the Plaintiff, confiscated Plaintiff’s knee brace, and indicated he
would speak with his sergeant regarding Plaintiff’s permits. Id. Plaintiff was then
cuffed from the back, making it difficult for him to stand. Id. Thereafter, despite
having a low bunk/low gallery permit, Plaintiff was housed in gallery 4. (Doc. 1, p.
5). As a result, Plaintiff had to climb stairs without his knee brace.
On July 2, 2015, Doe 2, a second unidentified cell house gallery officer,
informed Plaintiff he was being transferred to gallery 8. Id. Plaintiff informed
Doe 2 that he could not climb that many stairs because of his knee, hip, and back
problems. Id. He also informed Doe 2 that his knee brace had been taken and
that he had a knee brace permit and a low bunk/low gallery permit. Id. Doe 2
asked to review Plaintiff’s permits. Id. After reviewing Plaintiff’s permits, Doe 2
indicated he would speak with Pelker, a sergeant. Id. Doe 2 then left to speak
with Pelker. Id. Upon returning, Doe 2 informed Plaintiff that Pelker “doesn’t
care.” Id. Plaintiff requested to speak with a lieutenant and asked for his knee
brace to be returned. Id. Doe 2 denied both requests. Id. Plaintiff was then
handcuffed from the back and forced to climb stairs, from gallery 4 to gallery 8,
without his knee brace. Id. The move caused Plaintiff severe pain and caused his
knee to swell. Id. After reaching gallery 8, Plaintiff informed Doe 2 that he was in
pain and that his knee was swelling. Id. Plaintiff asked Doe 2 to notify medical
staff. Id. Plaintiff’s request was denied.
Despite repeated requests to various Defendants, Plaintiff’s knee brace was
not returned until August 17, 2015 (a total of 49 days). (Doc. 1, pp. 6-7). See

also (Doc. 1-1 p. 8, inmate personal property receipt noting knee brace was
returned on 8/17/15). Plaintiff specifically references having detailed face-to-face
conversations with and/or submitting detailed letters and/or grievances to the
following officials:
(1) Officer Shemoney (Doc. 1, pp. 6-7); 2
(2) Kirk (Doc. 1, pp. 6-7; Doc. 1-1, p. 6);
(3) Pelker (Doc. 1, pp. 6-7, 11; Doc. 1-1, p. 3);
(4) Butler (Doc. 1, p. 10; Doc. 1-1, p. 1, 4);
(5) Watson (Doc. 1, p. 10; Doc. 1-1, p. 2, 5); and
(6) Hassameyer (Doc. 1, p. 11; Doc. 1-1, p. 7).
Additionally, On August 10, 2015, Plaintiff filed a grievance regarding his
confiscated knee brace and prison officials’ refusal to honor his knee brace and
low bunk/low gallery permits. (Doc. 1, p. 2; Doc. 1-1, p. 16). 3
While Plaintiff was without his knee brace, Plaintiff was in severe pain,
suffered from a swollen knee, and was often restricted to his bed. (Doc. 1, pp. 67). After Plaintiff’s brace was returned, Mike, a medical technician, and Meyer, a
Lieutenant, came to Plaintiff’s cell and informed Plaintiff he would have to sign a
new permit – even though the original permit was still valid. (Doc. 1, p. 7). The
new permit did not have a low gallery authorization. Id. Plaintiff refused to sign

2

As is noted in the discussion below, this officer is not a named defendant and, to the extent that
Plaintiff intended to assert any claims against him, such claims should be considered dismissed
without prejudice.

3

Plaintiff also indicates that he filed grievances on September 10, 2015 and September 27, 2015,
which were ignored. (Doc. 1, p. 2). The Complaint also includes several letters to counselors
inquiring about the status of grievances. (Doc. 1-1, pp. 18-21).

the new permit because it did not have a low gallery authorization, his prior
permit was still valid, and Meyer’s explanations for why a new permit was
necessary did not make any sense. Id. When Plaintiff refused to sign the new
permit, Meyer got angry and said, “If you do not sign that permit you will have
problems back here.” Id.
After refusing to sign the permit, Plaintiff was escorted to the medical unit.
(Doc. 1, p. 8).

Trost and Mike were present.

Id. Trost inquired about why

Plaintiff was refusing to sign the new permit, and Plaintiff explained himself. Id.
Trost indicated that he did not have any skin in the game, and he was only trying
to help Plaintiff. Id. Plaintiff then asked Trost why Trost had refused to help
Plaintiff in the past when Plaintiff was seen regarding his knee pain. Id. Trost
encouraged Plaintiff to sign the permit. Id. Trost also indicated that if Plaintiff
would sign the permit, Trost would review Plaintiff’s medical records and see
what he could do for Plaintiff. Id. Plaintiff continued to refuse to sign the permit.
(Doc. 1, p. 9). Trost then offered to order Plaintiff a new brace, increase Plaintiff’s
naproxen dosage to 750 mg., and inquire about physical therapy. Id. See also
(Doc. 1-1, pp. 11-12). However, Trost’s offer was conditioned on Plaintiff signing
the permit. Id.

Trost also noted that if Trost followed through on his offer,

Plaintiff’s prior grievance 4 regarding his knee brace and low gallery permit
“should be void right?” Id.

4

Presumably, Trost was referring to Plaintiff’s August 10, 2015 grievance.

On August 19, 2015, Plaintiff was informed by Officer Shemoney that he
was being transferred to a new cell. (Doc. 1, p. 12). Plaintiff asked why he was
being transferred, and Officer Shemoney stated the decision came from a “higher
authority.” Id. The new cell was more restrictive than Plaintiff’s previous cell. Id.
The cell had solid steel across the front and did not allow any fresh air to enter
the cell. Id. Plaintiff claims he was transferred to this cell in retaliation for filing
grievances regarding his knee brace and/or for refusing to sign a new permit. Id.
Plaintiff alleges additional constitutional violations after he was released
from segregation on September 23, 2015. 5

(Doc. 1, p. 17).

According to the

Plaintiff, when he was released from segregation he was placed in a “high”
aggression building in the East cell house.

Id.

Plaintiff claims his assigned

aggression level did not warrant such a placement.

Id. Because of Plaintiff’s

disability and low gallery permit, Plaintiff was housed in gallery 1. However, the
showers in the East cell house are located on gallery 5. Id. Plaintiff alleges that
his disability prevented him from walking to gallery 5 and, as a result, he was
unable to attend showers for 390 days.

Id.

Plaintiff does not identify any

particular individuals in relation to these claims.
Plaintiff states that his August 10, 2015 grievance was deemed an
emergency and ultimately resolved on March 7, 2016. (Doc. 1, p. 2). A grievance
response dated March 1, 2016 is attached as an exhibit to the Complaint. (Doc.

5

These allegations are included in Plaintiff’s request for injunctive relief. Reading Plaintiff’s
Complaint liberally, which the Court is required to do at this point in the litigation, the Court
construes Plaintiff’s description of the events surrounding his release from segregation in
September 2015 as an attempt to allege constitutional violations regarding the same.

1-1, p. 15). This grievance was signed by Butler on March 7, 2016. Id. The
grievance response indicates it is in relation to Plaintiff’s August 10, 2015
grievance. The resolution states as follows: “issue resolved as offender received
knee brace 8/17/15 and has low gallery/low bunk permit.” Id.
Plaintiff seeks damages and injunctive relief. (Doc. 1, pp. 13, 16-17).
Discussion
The Court begins its § 1915A review with a note about the parties at issue
in this case. At several places in his Complaint, Plaintiff refers to the conduct of
“Officer Shemoney.” This individual is not named in the caption or defendant list.
The Court cannot discern whether Plaintiff intended to raise discrete claims
against this individual. Regardless, because Officer Shemoney is not listed in the
caption by name or by Doe designation, this individual will not be treated as a
defendant in this case, and any claims against this individual should be
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) (to be properly considered a party a defendant
must be “specif[ied] in the caption”).
Turning to the substantive allegations in Plaintiff’s Complaint, the Court
finds it convenient to divide the pro se action into 6 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. Any other claim that is
mentioned in the Complaint but not addressed in this Order should be

considered

dismissed

without

prejudice

as

inadequately

pled

under

the Twombly pleading standard.
Count 1 – Defendants exhibited deliberate indifference to Plaintiff's serious
medical
needs in violation of the Eighth Amendment when they confiscated
his knee brace and refused to honor his knee brace and low
bunk/low gallery permits during his stay in segregation.
Count 2 – Defendants violated the Americans with Disabilities Act (“ADA”),
42 U.S.C.
§§ 12101 et seq., and/or Rehabilitation Act of 1973, § 504, 29
U.S.C. §§ 794-794e, by failing to accommodate Plaintiff's
disability-related needs when they confiscated his knee brace and
refused to honor his knee brace and low bunk/low gallery permits
during his stay in segregation.
Count 3 – After releasing Plaintiff from segregation in September 2015,
Defendants
housed Plaintiff in a location that made it impossible for Plaintiff
to access the showers. This conduct violated the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., Rehabilitation
Act of 1973, § 504, 29 U.S.C. §§ 794-794e, and/or Plaintiff’s
Eighth Amendment rights.
Count 4 – Defendants retaliated against Plaintiff for filing grievances, in
violation of the
First Amendment.
Count 5 – Defendants ignored or mishandled Plaintiff’s grievances, in
violation of the
Plaintiff’s constitutional rights.
Count 6 – Defendant Meyer verbally harassed Plaintiff, in violation of the
Plaintiff’s
constitutional rights.

As discussed in more detail below, the Court finds as follows with respect to each
Count:
Count 1 is subject to further review against Doe 1, Doe 2, Pelker, Kirk,
Watson, Hassameyer, and Butler. Count 1 shall proceed against Doe 1, Doe 2,
Pelker, Kirk, Watson, and Hassameyer in their individual capacities only.
Count 1 shall proceed against Butler in her individual capacity (to the extent
that Plaintiff is seeking damages premised on Butler’s personal involvement in the
alleged constitutional violation) and official capacity (to the extent that Plaintiff is
seeking injunctive relief). Count 1 shall be dismissed without prejudice as to
Mike, Meyer, Trost, and Wexford. Count 1 shall be dismissed with prejudice as
to IDOC.
Count 2 is subject to further review against IDOC.

Count 2 shall be

dismissed with prejudice as to all other Defendants.
Count 3 and Count 4 shall be dismissed without prejudice as to all
Defendants.
Count 5 shall be dismissed with prejudice as to all Defendants.
Count 6 shall be dismissed with prejudice as to Meyer, the only Defendant
referenced with respect to this claim.
Count 1
Deliberate Indifference “to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain’ ... proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a claim, a
prisoner must show that: (1) he suffered from an objectively serious medical

need; and (2) state officials acted 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).
The Seventh Circuit has held that 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). The
severe pain stemming from Plaintiff's knee injury, coupled with the fact that
Plaintiff had been issued knee brace and low bunk/low gallery permits, satisfy the
objective component of Count 1 for screening purposes.
To satisfy the subjective component, the Complaint must suggest that
Defendants exhibited deliberate indifference to Plaintiff's serious medical need.
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).

Such indifference may be “manifested by

prison doctors in their response to the prisoner's needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering
with the treatment once prescribed.” Estelle, 429 U.S. at 104.

Defendants Doe
Hassameyer

1,

Doe

2,

Pelker,

Kirk,

Butler,

Watson,

and

The subjective component is satisfied with respect to Count 1 as to Doe 1,
Doe 2, Pelker, Kirk, Butler, Watson, and Hassameyer. According to the
Complaint, Doe 1 disregarded both permits by confiscating Plaintiff’s knee brace
and housing Plaintiff in a location incompatible with Plaintiff’s low gallery permit,
thereby interfering with and/or delaying Plaintiff’s prescribed course of treatment.
This alleged constitutional violation continued for approximately 49 days, causing
severe pain and exacerbating the Plaintiffs knee injury. The Complaint further
indicates that Doe 2, Pelker, Kirk, Butler, Watson, and Hassameyer were made
aware of Plaintiff's need for his knee brace and placement in a lower gallery in
detailed grievances, letters, and/or face-to-face conversations. 6

Despite this

knowledge, these Defendants ignored or failed to adequately address Plaintiff's
needs.
Accordingly, these allegations support a claim of deliberate indifference
under Count 1 against Doe 1, Doe 2, Pelker, Kirk, Butler, Watson, and
Hassameyer.

Plaintiff’s deliberate indifference claim will proceed against Doe 1,

Doe 2, Pelker, Kirk, Watson, and Hassameyer in their individual capacities only.
Plaintiff’s deliberate indifference claim will proceed against Butler in her
individual capacity (to the extent that Plaintiff is seeking damages premised on
Butler’s personal involvement in the alleged Constitutional violation) and official
See Perez v. Fenoglio, 792 F.3d 768, 781-782 (7th Cir. 2015) (“[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 constitutional deprivation.”).

6

capacity (to the extent that Plaintiff is seeking injunctive relief in relation to this
claim).
Defendants Mike, Meyer, and Trost
The allegations in the Complaint fail to state a claim in Count 1 as to Mike,
Meyer, and Trost. According to the Complaint, Mike, Meyer, and Trost interacted
with Plaintiff on August 17, 2015 – the day Plaintiff’s knee brace was returned.
There is no indication that these Defendants were involved with the alleged
violation or had any knowledge of the alleged violation prior to August 17, 2015.
Accordingly, the subjective component is not met with regard to these Defendants.
As such, Count 1 shall be dismissed without prejudice as to Mike, Meyer, and
Trost.
Defendant IDOC
Count 1 shall be dismissed with prejudice against IDOC. IDOC is a state
government agency. The Supreme Court has held that “neither a State nor its
officials acting in their official capacities are ‘persons' under § 1983.” Will v. Mich.

Dep't of State Police, 491 U.S. 58, 71 (1989). See also Wynn v. Southward, 251
F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against the states
in federal court for money damages). Plaintiff cannot bring his claim for money
damages against IDOC. To the extent that Plaintiff is seeking injunctive relief, it
can be carried out by Menard's warden, Defendant Butler, if it is ordered. See

Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (when injunctive relief

is sought, it is generally appropriate to name the government official who is
responsible for carrying out the requested relief, in his or her official capacity).
Defendant Wexford
Count 1 shall be dismissed without prejudice as to Wexford.

The

Complaint alleges Wexford (a private corporation contracted to run the prison’s
healthcare unit) is liable because Kirk (a prison nurse) ignored Plaintiff’s requests
for help and failed to have his knee brace returned.

(Doc. 1, p. 14).

Thus,

Plaintiff seeks to hold Wexford liable in its supervisory capacity over Kirk.

Respondeat superior liability does not apply to private corporations under §
1983. Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982).
Accordingly, this allegation fails to state a claim as to Wexford.
Plaintiff also contends Wexford is liable “because it failed to train its
employees adequately to provide medical care meeting the Eighth Amendment
standard.” (Doc. 1, p. 15). Allegations of failure to train medical staff have been
found to support a Monell claim. Woodward v. Corr. Med. Servs. of Ill., Inc., 368
F.3d 917, 927–28 (7th Cir. 2004). However, in the instant case, Plaintiff’s generic
failure-to-train allegations are insufficient.

Plaintiff does not identify a specific

policy, custom, or practice that is responsible for the alleged constitutional
violation. Rather, Plaintiff makes conclusory allegations about Wexford’s failure
to train its medical staff. Such allegations do not sufficiently state a claim. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.”).

Accordingly, the Court will dismiss Wexford without prejudice at this time.
Count 2
Count 2 is premised on the same allegations at issue in Count 1. The ADA
and Rehabilitation Act prohibit discrimination against qualified individuals
because of their physical or mental disability, including a failure to accommodate
a disability. Jaros v. Illinois Dep't of Corrections, 684 F.3d 667, 671 (7th Cir.
2012). In order to make out a prima facie case of discrimination under both the
ADA and the Rehabilitation Act, a plaintiff must show: (1) that he suffers from a
disability as defined in the statutes, (2) that he is qualified to participate in the
program in question, and (3) that he was either excluded from participating in or
denied the benefit of that program based on his disability. Jackson v. City of

Chicago, 414 F.3d 806, 810 (7th Cir. 2005).

The Rehabilitation Act further

requires that a plaintiff show that the program in which he was involved received
federal financial assistance. Id. at 810 n.2; see also 29 U.S.C. § 794(a). Novak v.

Bd. of Trustees of S. Ill. Univ., 777 F.3d 966, 974 (7th Cir. 2015). The ADA
applies to state prisons, and all such institutions receive federal funds. Penn.

Dep't of Corr. v. Yeskey, 524 U.S. 206 (1998); Jaros, 684 F.3d at 667. Thus, the
two statutory schemes are applicable to this situation.
An inmate may sue state officials in their official capacity for prospective
injunctive relief under Title II. Brueggeman ex rel. Brueggeman v. Blagojevich,
324 F.3d 906, 912 (7th Cir. 2003). Additionally, an inmate may bring a private

cause of action for damages under Title II, if the state actor's conduct also violates
the Eighth Amendment. See U.S. v. Georgia, 546 U.S. 151 (2006).
The allegations in the Complaint suggest that Plaintiff suffers from a
disability as defined in the ADA and Rehabilitation Act. See Jaros, 684 F.3d at
672. Plaintiff has stated a claim for prospective injunctive relief under Title II of
the ADA to the extent that Defendants are continuing to disregard his knee brace
and low bunk/low gallery permits. Additionally, because the underlying claims
may also state an Eighth Amendment deliberate indifference claim, Plaintiff may
proceed on his claim for damages under the ADA.
Although Plaintiff has named a number of officials in connection with the
factual allegations supporting this claim, the only proper defendant in a claim
under the ADA or Rehabilitation Act is the state agency (or a state official acting in
his or her official capacity). “[E]mployees of the Department of Corrections are not
amenable to suit under the Rehabilitation Act or the ADA. See 29 U.S.C. § 794(b);
42 U.S.C. § 12131.” Jaros, 684 F.3d at 670 (additional citations omitted).
Accordingly, Count 2 shall proceed against the Illinois Department of
Corrections only.

As to Count 2, all other Defendants are dismissed with

prejudice.
Count 3
According to the Complaint, after releasing Plaintiff from segregation in
September 2015, Plaintiff was housed in a location that made it impossible for
Plaintiff to access the showers. (Doc. 1, p. 17). As a result, Plaintiff was unable to

“attend showers” for 390 days.

Id.

The alleged conduct may constitute a

violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et
seq., Rehabilitation Act of 1973, § 504, 29 U.S.C. §§ 794-794e, and/or the Eighth
Amendment.

However, the Complaint fails to associate this conduct with any

particular defendant.

Absent this information, Plaintiff has failed to allege

personal involvement as to any Defendant that is sufficient to state a claim. See

Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“Section 1983 creates a cause
of action based on personal liability and predicated upon fault; thus liability does
not attach unless the individual defendant caused or participated in a
constitutional violation.”). Additionally, without identifying who is responsible for
the alleged violation, the Complaint does not provide the type of notice
contemplated under Rule 8.

See Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(discussing fair notice).
As such, Count 3 is dismissed without prejudice.
Count 4
Prison officials may not retaliate against inmates for filing grievances or
otherwise complaining about their conditions of confinement. See, e.g., Walker v.

Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th
Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857
F.2d 1139 (7th Cir. 1988). At the pleading stage a prisoner's retaliation claim is
subject to a liberal notice pleading standard. See, e.g., Higgs v. Carver, 286 F.3d
437, 439 (7th Cir. 2002) (to state a claim for retaliation, a plaintiff must identify

the reasons that retaliation has been taken, as well as “the act or acts claimed to
have constituted retaliation,” so as to put a defendant charged with unlawful
retaliation on notice of the claim). The bare minimum a plaintiff must plead in a
retaliation claim are the facts that would apprise the defendant of what the
plaintiff did to provoke the alleged retaliation and what the defendant did in
response. See Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005); Walker v.

Thompson, 288 F.3d 1005, 1012 (7th Cir. 2002); Black v. Lane, 22 F.3d 1395,
1399 (7th Cir. 1994).
Plaintiff contends Defendants retaliated against him for filing grievances
and/or refusing to sign the new permit by transferring him to a more restrictive
cell (the cell was “closed in with steel across the front that allows no air to come
in the cell, no air coming out the vent”). (Doc. 1, p. 12). The only particular
individuals identified in relation to this alleged retaliatory act are Officer
Shemoney (not a defendant in the instant case) and Meyer. Id. According to the
Complaint, Officer Shemoney is the prison official that transferred Plaintiff to the
more restrictive cell. Id. When Plaintiff inquired about the reason behind the
transfer, Officer Shemoney replied the decision “came from a higher authority.”

Id. As to Meyer, Plaintiff contends the retaliatory transfer was motivated in part,
by Plaintiff’s refusal to sign the new permit as requested by Meyer. Id.

Plaintiff

also raises allegations regarding cell “shake downs” conducted by unidentified
prison officials. (Doc. 1, p. 18).

Even applying the liberal pleading standard discussed above, the Complaint
fails to bring a viable First Amendment claim for retaliation. While the complaint
alleges the reason for retaliation (filing a grievance and refusing to sign the new
permit) and the retaliatory action (transfer to a more restrictive cell and frequent
cell “shake downs”), it fails to connect the retaliation with any particular
defendant. As to the cell transfer, Plaintiff merely alleges that it was motivated in
part by his refusal to sign a new permit as requested by Meyer. However, there is
no allegation that Meyer is the defendant associated with the retaliatory act.
Plaintiff merely alleges that the decision came from a “higher power.” Further, no
particular defendant is identified in relation to the alleged “shake downs.”
Absent this information, Plaintiff has failed to allege personal involvement
as to any Defendant that is sufficient to state a claim for retaliation. See Vance v.

Peters, 97 F.3d 987, 991 (7th Cir. 1996). Further, without identifying who is
responsible for the alleged retaliation, the Complaint does not provide the type of
notice contemplated under Rule 8.

See Erickson v. Pardus, 551 U.S. 89, 93

(2007).
Accordingly, Count 3 is dismissed without prejudice.
Count 5
To the extent that Plaintiff is attempting to allege a constitutional violation
in relation to access to the grievance process and/or mishandling of grievances,
the claim is subject to dismissal.

The Constitution requires no procedure at all,

and the failure of state prison officials to follow their own grievance procedures

does not, by 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). Even
assuming Plaintiff’s grievances were ignored and/or mishandled, this conduct,
standing alone, does not establish a constitutional violation.
Accordingly, Count 5 is dismissed with prejudice.
Count 6
The Complaint discusses an encounter between Plaintiff and Meyer
occurring on August 17, 2015.

(Doc. 1, p. 7).

According to Plaintiff, Meyer

directed Plaintiff to sign a new permit that did not include a low gallery
authorization. Id. Plaintiff refused to sign the permit and questioned Meyer’s
motivation. Id. This angered Meyer. Id. Meyer began pacing and said “if you do
not sign that permit you will have problems back here!” Id. Then Meyer walked
off. Id.
These allegations describe verbal harassment.

Simple, run-of-the-mill

verbal harassment does not state a constitutional claim—it does not “constitute
cruel and unusual punishment, deprive a prisoner of a protected liberty interest
or deny a prisoner equal protection of the laws.” DeWalt v. Carter, 224 F.3d 607,
612 (7th Cir. 2000). That said, more extreme instances of verbal harassment,
especially verbal harassment that constitutes a grave threat to a prisoner's life or
that could subject a prisoner to serious harm by other inmates, could violate the
Eighth Amendment. E.g., Hughes v. Farris, 809 F.3d 330, 334 (7th Cir. 2015);

Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015); Dobbey v. Illinois Dep't of

Corrections, 574 F.3d 443, 445 (7th Cir. 2009). Here, although Meyer’s conduct
may constitute verbal harassment, it does not come close to the type of serious
harassment that is actionable in a § 1983 claim.
Accordingly, Count 6 is dismissed with prejudice.
Identification of Unknown Defendants
Plaintiff shall be allowed to proceed with Count 1 against John Doe 1
(unidentified cell house gallery officer) and John Doe 2 (unidentified cell house
gallery officer). However, these Defendants must be identified with particularity
before service of the Complaint can be made on them. Where a prisoner's
complaint states specific allegations describing conduct of individual prison staff
members sufficient to raise a constitutional claim, but the names of those
defendants are not known, the prisoner 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,
Count 1 is proceeding against the Warden of Menard, Butler, in her individual
capacity (to the extent that Plaintiff is seeking damages premised on Butler’s
personal involvement in the alleged Constitutional violation) and official capacity
(to the extent that Plaintiff is seeking injunctive relief).

Butler shall also be

responsible for responding to discovery, informal or formal, aimed at identifying
these unknown defendants. 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 defendant in place of
the general designation in the case caption and Complaint.
Pending Motions
Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc. 2) shall be
addressed in a separate Order of this Court.

However, for purposes of

determining how service of process shall proceed, the Court observes that Plaintiff
appears to qualify for pauper status, so service of summons and the Complaint
will be effected at government expense. See 28 U.S.C. § 1915(d).
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) shall be REFERRED
to a United States Magistrate Judge for a decision.
Disposition
The Clerk is DIRECTED to ADD a Motion for Preliminary Injunction as a
separate docket entry in CM/ECF. This motion is hereby REFERRED to a United
States Magistrate Judge for prompt disposition.
The Clerk is directed to TERMINATE the following defendants as parties in
CM/ECF, based on Plaintiff’s failure to sufficiently plead claims against them:
LIEUTENANT MEYER, JOHN TROST, MIKE, and WEXFORD HEALTH
SOURCES.
IT IS HEREBY ORDERED that COUNTS 3 and 4 are DISMISSED without
prejudice as to all Defendants, COUNT 5 is DISMISSED with prejudice as to all
Defendants, and COUNT 6 is DISMISSED with prejudice as to MEYER, the only
Defendant referenced in connection with COUNT 6.

IT IS FURTHER ORDERED that COUNT 1 is subject to further review
against DOE 1, DOE 2, PELKER, KIRK, WATSON, and HASSAMEYER in their
individual capacities only. COUNT 1 is subject to further review against BUTLER
in her individual and official capacities.

COUNT 1 is DISMISSED without

prejudice as to MIKE, MEYER, TROST, and WEXFORD.

COUNT 1 is

DISMISSED with prejudice as to IDOC.
IT IS FURTHER ORDERED that COUNT 2 is subject to further review
against IDOC.

Count 2 is DISMISSED with prejudice as to all other

DEFENDANTS.
IT IS FURTHER ORDERED that as to COUNTS 1 and 2 the Clerk of the
Court shall prepare for Defendants DOE 1 (once identified), DOE 2 (once
identified), PELKER, KIRK, WATSON, HASSAMEYER, BUTLER, and IDOC (1)
Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2)
Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these
forms, a copy of the Complaint, and this Memorandum and Order to each
Defendant's place of employment as identified by Plaintiff. If a Defendant fails to
sign and return the Waiver of Service of Summons (Form 6) to the Clerk within
30 days from the date the forms were sent, the Clerk shall take appropriate steps
to effect formal service on that Defendant, and the Court will require that
Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.

No service shall be made on the unknown defendants (Doe 1 and Doe 2)
until such time as Plaintiff has properly identified them in a Motion for
Substitution of Parties.
With respect to a Defendant who no longer can be found at the work
address provided by Plaintiff, the employer shall furnish the Clerk with the
Defendant’s current work address, or, if not known, the Defendant’s last-known
address. This information shall be used only for sending the forms as directed
above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the
court file or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an
appearance is entered), a copy of every pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be
filed a certificate stating the date on which a true and correct copy of the
document was served on Defendants or counsel. Any paper received by a district
judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading
to the Complaint and shall not waive filing a reply pursuant to 42 U.S.C. §
1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United
States Magistrate Judge for further pre-trial proceedings, including a decision on

Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) and Motion for Preliminary
Injunction and a plan for discovery aimed at identifying the unknown defendants
(Doe 1 and Doe 2) with particularity.

Further, this entire matter shall be

REFERRED to a United States Magistrate Judge for disposition, pursuant to
Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a

referral.
If judgment is rendered against Plaintiff, and the judgment includes the
payment of costs under § 1915, Plaintiff will be required to pay the full amount of
the costs, even if his application to proceed in forma pauperis is granted.

See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney
were deemed to have entered into a stipulation that the recovery, if any, secured
in the action shall be paid to the Clerk of the Court, who shall pay therefrom all
unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to
keep the Clerk of Court and each opposing party informed of any change in his
address; the Court will not independently investigate his whereabouts. This shall
be done in writing and not later than 7 days after a transfer or other change in
address occurs.

Failure to comply with this order will cause a delay in the

transmission of court documents and may result in dismissal of this action for
want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
Signed February 3rd, 2017.

Digitally signed by
Judge David R.
Herndon
Date: 2017.02.03
16:54:32 -06'00'
UNITED STATES DISTRICT JUDGE