McCaskill v. Wexford Health Sources, Inc. et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/26/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEPHEN DOUGLAS McCASKILL,
# K-77293,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
ALFONSO DAVID,
WARDEN DENNISON,
LORREAL LECRONE,
DEBBIE PERKINS,
NURSE CAROL,
MRS. SMOOT,
and REEDER,
Defendants.

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Case No. 17-cv-354-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 while he was
incarcerated at Shawnee Correctional Center (“Shawnee”). Since he filed the case, he has been
released from custody. (Doc. 6). Plaintiff claims that Defendants transferred him from the
prison’s Health Care Unit to general population, where he was unable to access meals or meet
his hygiene needs, due to his stroke-related impairments. The Complaint is now before the Court
for a preliminary review pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
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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 “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if
it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the
line between possibility and plausibility.” Id. at 557. Conversely, a complaint is plausible on its
face “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith
v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or
implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578
F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract
recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same
time, however, the factual allegations of a pro se complaint are to be liberally construed. See
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive
threshold review under § 1915A.
The Complaint
Plaintiff suffered a stroke in 2011 (Doc. 1, p. 7). As a result, he cannot lift a food tray,
and he cannot walk or mobilize after any period of rest until he sits up for 25-30 minutes. He has
extreme weakness on the left side of his body and needs a cane for support while walking. He

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often does not have bowel control and cannot make it to the bathroom, so he needs a constant
supply of wipes and a bedpan in order to clean himself after accidents. (Doc. 1, p. 8). Plaintiff’s
condition had caused him to miss many meals while he was in general population, and officers
complained about Plaintiff having to depend on kitchen workers to bring his food trays to his
table for him and clean up after him. Plaintiff explained his problems to Dr. David on many
occasions. (Doc. 1, p. 7).
Because of Plaintiff’s mobility impairments and medical needs, he was placed in
Shawnee’s Health Care Unit on February 23, 2016. Former Warden Etienne made this housing
decision on the advice of Dr. David, and the warden ordered this to be a permanent housing
assignment for Plaintiff. (Doc. 1, p. 7). On November 3, 2016, however, current Warden
Dennison ordered Plaintiff to be moved back into general population. Plaintiff’s condition had
not changed. When Plaintiff discussed the matter with Dr. David, he responded that “it was the
Warden’s call and not his” to return Plaintiff to general population.
Since November 3, 2016, Plaintiff was required to walk to the chow hall in order to eat.
He was not allowed enough time to get there in light of his impairments, so he was forced to
miss meals 99% of the time. (Doc. 1, pp. 8, 12). Three days after Plaintiff’s reassignment to
general population, on November 6, 2016, Plaintiff was assigned an inmate aide. Even with the
aide’s help, however, Plaintiff continued to miss meals. Further, he was no longer provided with
the wipes or bedpan that he needed in order to maintain his personal hygiene in light of his bowel
control problems. Lecrone (Director of Nursing) refused or delayed meeting with Plaintiff when
he sought help obtaining these supplies. (Doc. 1, pp. 10, 12). Plaintiff also complained to Smoot
(Health Care Administrator) about the discontinuation of his supplies after his move to general
population, and his inability to get meals, but she took no action. (Doc. 1, pp. 12-13; Doc. 1-1, p.

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3-8).
Plaintiff asserts that his reassignment to general population without adequate assistance
to meet his nutritional and health/hygiene needs violated the “Disability Act of Illinois.” (Doc. 1,
p. 9). He also complains that Shawnee does not provide a yard or gym for disabled inmates.
(Doc. 1, p. 10).
Plaintiff asserts that numerous officials lied and conspired to remove him from the Health
Care Unit. (Doc. 1, p. 10). He specifically claims that Lecrone, Dennison, and David worked
together to get him out of the Health Care Unit in retaliation for Plaintiff’s alleged involvement
in assisting another inmate with a lawsuit against those officials. Plaintiff denied acting as the
inmate’s attorney, but then states in the Complaint that he prepared a motion to dismiss these
defendants from the suit. (Doc. 1, p. 11).
Plaintiff also sues Wexford Health Sources, Inc., for hiring employees who are not
professional, capable, or competent to provide medical care. (Doc. 1, p. 12). Finally, Plaintiff
alleges that Counselor Reeder failed to process Plaintiff’s grievances. (Doc. 1, p. 13).
Plaintiff seeks damages for the violations of his rights. (Doc. 1, p. 14).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1:

Eighth Amendment claim for deliberate indifference to Plaintiff’s
medical, nutritional, and hygiene needs, for causing him to miss
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meals and discontinuing his hygiene supplies after housing him in
the general population;
Count 2:

Claim under the Americans with Disabilities Act and/or
Rehabilitation Act, for failing to accommodate Plaintiff’s
disabilities after moving him to general population, causing him to
miss meals and depriving him of necessary hygiene supplies;

Count 3:

First Amendment retaliation claim against David, Dennison, and
Lecrone for removing Plaintiff from the Health Care Unit due to
his actual or perceived involvement in another inmate’s lawsuit
against these Defendants;

Count 4:

Due Process claim against Reeder for failing to properly handle
Plaintiff’s grievance(s).

Plaintiff shall be allowed to proceed against some of the Defendants in Counts 1 and 2,
and he may proceed with Count 3. As explained below, however, Count 4 fails to state a claim
upon which relief may be granted, and it shall be dismissed.
Count 1 – Deliberate Indifference
The Eighth Amendment prohibition on cruel and unusual punishment forbids
unnecessary and wanton infliction of pain, and punishment grossly disproportionate to the
severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v. Georgia,
428 U.S. 153, 173 (1976)). Two elements are required to establish a violation of the Eighth
Amendment’s cruel and unusual punishments clause with regard to any conditions of
confinement in prison. First, an objective element requires a showing that the conditions deny the
inmate “the minimal civilized measure of life’s necessities,” creating an excessive risk to the
inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective
conditions must have resulted in an unquestioned and serious deprivation of basic human needs
such as food, medical care, sanitation, or physical safety. Rhodes v. Chapman, 452 U.S. 337, 347
(1981).

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The second requirement is a subjective element—establishing a defendant’s culpable
state of mind, which is deliberate indifference to a substantial risk of serious harm to the inmate
from those conditions. Farmer, 511 U.S. at 837, 842. The deliberate indifference standard is
satisfied if the plaintiff shows that the prison official acted or failed to act despite the official’s
knowledge of a substantial risk of serious harm from the conditions. Farmer, 511 U.S. at 842. It
is well-settled that mere negligence is not enough. See, e.g., Davidson v. Cannon, 474 U.S. 344,
347-48 (1986).
In this case, Plaintiff claims that after he was placed back in general population, he was
deprived of adequate food on a regular basis because of his inability to access the chow hall. In
addition, after he was no longer provided with personal hygiene supplies (wipes and a bedpan),
he was unable to clean himself properly when he lost bowel control or was unable to make it to
the bathroom in time. These conditions arguably deprived Plaintiff of his basic needs for food
and sanitation, and posed a substantial risk to his health.
Turning to the subjective component of this claim, Plaintiff alleges that Dr. David was
aware that his nutritional and hygiene needs were not being met while he was in general
population before February 2016. It appears that Dr. David was instrumental in having Plaintiff
moved to the Health Care Unit because of these problems. When Plaintiff was transferred out of
the Health Care Unit in November 2016, however, Dr. David allegedly failed to take any steps to
mitigate the risk of harm to Plaintiff from returning to general population, although he was well
aware of those risks. At this stage of the case, Plaintiff has stated a colorable deliberate
indifference claim against Dr. David in Count 1 that merits further review.
Similarly, Plaintiff indicates that Warden Dennison was also aware at least of Plaintiff’s
inability to obtain regular meals without assistance in general population, yet he moved Plaintiff

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out of the Health Care Unit anyway. Plaintiff may also proceed with the deliberate indifference
claim in Count 1 against Dennison.
Turning to Lecrone, whether or not she took part in the decision to move Plaintiff back to
general population, she allegedly refused to help Plaintiff obtain the personal hygiene supplies
that he was no longer given after he left the Health Care Unit. She was aware of his condition
and his dependence on these items, from her dealings with Plaintiff when he was in the Health
Care Unit. Her lack of response when he asked for help could amount to deliberate indifference,
thus Count 1 shall also proceed against Lecrone.
After Plaintiff’s housing reassignment, he complained to Health Care Administrator
Smoot about his inability to obtain hygiene supplies and regular meals, but she did nothing to
assist him with these health-related needs. He attaches a detailed letter to her describing his
medical conditions and the problems he faced in general population. (Doc. 1-1, pp. 3-8). Plaintiff
also may proceed with the deliberate indifference claim in Count 1 against Smoot.
The remaining Defendants shall be dismissed from this claim without prejudice,
however. Plaintiff’s only factual allegations against Nurse Perkins are that she asked him why he
was assigned to stay in the Health Care Unit, and then told him she didn’t care. (Doc. 1, pp. 1011). Nurse Carol also asked Plaintiff numerous times why he was being housed in the Health
Care Unit. (Doc. 1, p. 11). These comments do not indicate that either of these individuals acted
or failed to act with deliberate indifference to a risk of harm to Plaintiff. Further, Plaintiff’s
conclusory claims that these Defendants “lied, plotted, and conspired” to remove him from the
Health Care Unit are unsupported by any factual allegations.
Finally, Plaintiff fails to state a deliberate indifference claim against Wexford Health
Sources, Inc. (“Wexford”). Wexford is a corporation that employs health care providers David,

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Lecrone, and Smoot, and provides medical care at the prison, but it cannot be held liable solely
on that basis. A corporation can be held liable for deliberate indifference only if it had a policy or
practice that caused the alleged violation of a constitutional right. Woodward v. Corr. Med. Serv.
of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). See also Jackson v. Ill. Medi-Car, Inc., 300 F.3d
760, 766 n.6 (7th Cir. 2002) (private corporation is treated as though it were a municipal entity in
a § 1983 action). Here, Plaintiff merely states that Wexford engaged in poor or negligent hiring
practices, by employing the individuals who Plaintiff believes acted unprofessionally and
incompetently. This is not sufficient to impose liability on Wexford. Wexford’s employment of
the individual Defendants does not constitute a policy or practice that caused them to violate
Plaintiff’s rights. Wexford also shall also be dismissed from Count 1.
To summarize, the deliberate indifference claims in Count 1 shall proceed only against
David, Dennison, Lecrone, and Smoot.
Count 2 – Americans with Disabilities Act/Rehabilitation Act
Title II of the ADA prohibits public entities from denying qualified individuals with
disabilities the opportunity to participate in the services, programs, or activities of the public
entity because of their disabilities. 42 U.S.C. § 12132. The Supreme Court has held that Title II
of the ADA applies to prisons. See Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206 (1998).
Furthermore, in United States v. Georgia, 546 U.S. 151 (2006), the Supreme Court recognized
that 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.
Based on his physical condition, Plaintiff is arguably a qualified disabled person for ADA
purposes. 42 U.S.C. § 12102(1). Thus, if his allegations state a claim that Defendants may have
been deliberately indifferent to his disability-related needs for supplies to care for his hygiene or

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medical needs, he may proceed on his claim under the ADA. Similarly, the denial of Plaintiff’s
access to regular meals because of his physical impairments indicates a possible ADA violation.
Claims under Title II of the ADA must be brought against a governmental (i.e., public)
entity rather than against an individual, 42 U.S.C. § 12132. Therefore, the Court will also allow
Plaintiff’s ADA Title II claim based on the deliberately indifferent failure to provide him with
access to food and hygiene supplies to proceed against Warden Dennison in his official capacity.
Turning to the Rehabilitation Act, the Seventh Circuit instructs that claims of
discrimination on account of a disability, especially those from pro se prisoner litigants, must be
analyzed in light of both the ADA and the Rehabilitation Act, whether or not the plaintiff has
asserted a claim under the latter statute. Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012);
Jaros v. Illinois Dept. of Corr., 684 F.3d 667 (7th Cir. 2012). A state prisoner may have a cause
of action under the Rehabilitation Act even if the ADA does not give rise to a claim. Id. To state
a claim under the Rehabilitation Act, a plaintiff must “allege that (1) he is a qualified person
(2) with a disability and (3) the Department of Corrections denied him access to a program or
activity because of his disability.” Jaros, 684 F.3d at 672; see 29 U.S.C. § 705(2)(B). A refusal
to make accommodations for a prisoner’s disability “is tantamount to denying access.” Id.
In Plaintiff’s case, his factual allegations support a Rehabilitation Act claim that he was
denied access to the “program or activity” of the prison meal service on account of his disability.
The same could be said about the failure to accommodate Plaintiff’s need for hygiene supplies to
maintain adequate cleanliness in light of his mobility limitations and bowel control problems.
Plaintiff may thus proceed in Count 2 against Dennison, in his official capacity, on the
food and hygiene matters under both the ADA and Rehabilitation Act.

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Plaintiff’s statement that Shawnee did not have yard or gym facilities for disabled
inmates, however, is dismissed without prejudice at this time, because the Complaint does not
contain sufficient facts to determine whether Plaintiff states a cognizable claim on those matters.
Count 3 – Retaliation
Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about their conditions of confinement, activities that are protected by the First
Amendment. See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); 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).
Furthermore, “[a]ll that need be specified is the bare minimum facts necessary to put the
defendant on notice of the claim so that he can file an answer.” Higgs v. Carver, 286 F.3d 437,
439 (7th Cir. 2002). Naming the suit and the act of retaliation is all that is necessary to state a
claim of improper retaliation. Id.
Here, Plaintiff asserts that Lecrone, Dennison, and David, who had been sued by another
prisoner, moved Plaintiff out of the Health Care Unit in retaliation against him for assisting the
other prisoner in his lawsuit. Plaintiff may pursue a retaliation claim based on these factual
allegations. A prisoner who experiences an adverse action because he acted as a “jailhouse
lawyer” for another inmate may maintain a retaliation claim. See Bridges v. Gilbert, 557 F.3d
541, 554 (7th Cir. 2009); Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996) (“If a prisoner is
transferred for exercising his own right of access to the courts, or for assisting others in
exercising their right of access to the courts, he has a claim under § 1983.”).
At issue here is whether Plaintiff experienced an adverse action that would likely deter
First Amendment activity in the future, and if the First Amendment activity was “at least a

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motivating factor” in the defendants’ decision to take the retaliatory action. Bridges, 557 F.3d at
551. Further factual development will be necessary in order to resolve these questions.
Accordingly, Plaintiff may proceed with the retaliation claim in Count 3 against David,
Dennison, and Lecrone.
Dismissal of Count 4 – Grievance Mishandling
Finally, Plaintiff asserts that Counselor Reeder violated his due process rights by
neglecting to process at least one of his grievances. But the mishandling or failure to respond to
grievances does not implicate any constitutional right.
Plaintiff’s efforts to exhaust his administrative remedies by using the prison grievance
process may be relevant in the event that a Defendant raises a challenge to Plaintiff’s ability to
maintain a § 1983 suit over the substantive matters raised in the grievances. See 42 U.S.C.
§ 1997e(a); Pavey v. Conley, 544 F.3d 739, 740 (7th Cir. 2008). Nonetheless, a Defendant’s
action or inaction in handling Plaintiff’s grievances does not support an independent
constitutional claim. “[A] state’s inmate grievance procedures do not give rise to a liberty
interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th
Cir. 1996). The Constitution requires no procedure at all, and the failure of state prison officials
to follow their own procedures does not, of itself, violate the Constitution. Maust v. Headley, 959
F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982).
For these reasons, Count 4 against Reeder shall be dismissed with prejudice for failure to
state a claim upon which relief may be granted.
Disposition
COUNT 4 is DISMISSED with prejudice for failure to state a claim upon which relief
may be granted.

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REEDER is DISMISSED from this action with prejudice. WEXFORD HEALTH
SOURCES, INC., PERKINS, and CAROL are DISMISSED from this action without
prejudice.
The Clerk of Court shall prepare for DAVID, DENNISON, LECRONE, and SMOOT:
(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.
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

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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 United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
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 § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
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 26, 2017

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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