Dennis v. Chronic et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge David R. Herndon on 5/4/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LUTHER DENNIS, # B-40292,
Plaintiff,
vs.

Case No. 17-cv-435-DRH

C/O CHRONIC,
WARDEN RAINS,
and IDOC,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff,

currently

incarcerated

at

Robinson

Correctional

Center

(“Robinson”), has brought this pro se civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff, who uses a wheelchair, claims that he was injured when he was
forcibly lifted out of the chair to be searched. He seeks injunctive relief in order
to prevent a similar occurrence.

This case is now before the Court for a

preliminary review of the complaint pursuant to 28 U.S.C. § 1915A .
Under § 1915A, the Court is required to screen prisoner complaints to filter
out non-meritorious 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

Page 1 of 12

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).
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).

Page 2 of 12

Applying these standards, the Court finds that plaintiff’s claims survive
threshold review under § 1915A.

The Complaint
On March 17, 2017, C/O Chronic conducted a search of inmates in
plaintiff’s housing unit. (Doc. 1, p. 5). Chronic asked plaintiff if he could stand
up. Plaintiff responded that he could not, because he has severe nerve damage in
both legs up to his waist from having suffered third-degree burns over 48% of his
body. Chronic then ordered another inmate (Jackson) to forcibly pull plaintiff up
and out of his wheelchair. Chronic had Jackson hold plaintiff up against the wall
while Chronic searched plaintiff. Jackson pulled on plaintiff’s arm and shoulder
in order to lift him, and this pulling injured plaintiff’s shoulder. Plaintiff has had
to repeatedly seek treatment from the health care unit for the injury.
Plaintiff alleges that Warden Rains has failed to train his subordinate
officers on the ADA (Americans with Disabilities Act). He asserts that the IDOC
should have a policy that prevents untrained inmates or others from physically
handling disabled inmates.

(Doc. 1, pp. 5-6).

Inmate Jackson had not been

trained to handle inmates with disabilities, but had merely been hired to push
wheelchairs. Jackson had not been assigned to assist plaintiff at the time this
incident occurred. Furthermore, no ADA workers had been trained at Robinson.
In the complaint, plaintiff asks this Court to grant him a Temporary
Restraining Order (TRO) or other injunctive relief so that he will not be injured in

Page 3 of 12

this manner again. (Doc. 1, pp. 6-7). He did not file a separate motion for a TRO
or injunction.
Plaintiff also requests compensatory and punitive damages. (Doc. 1, p. 7).

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 against Chronic, for directing an
inmate to use excessive force to lift plaintiff from his wheelchair;
Count 2: Claim under the Americans with Disabilities Act against
the IDOC and Warden Rains, for allowing untrained prison staff and
inmates to physically mishandle plaintiff, placing him at risk for
injury.
Both of these claims shall proceed for further consideration in this action.
However, plaintiff’s request for a TRO shall be denied at this time without
prejudice.

Denial of Request for TRO
A TRO is an order issued without notice to the party to be enjoined that
Page 4 of 12

may last no more than fourteen days. A TRO may issue without notice:
only if (A) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and (B) the movant’s attorney certifies in writing any
efforts made to give notice and the reasons why it should not be
required.
FED. R. CIV. P. 65(b).
In order to obtain a temporary restraining order or a preliminary injunction
under Rule 65, Plaintiff must demonstrate that: (1) his underlying case has some
likelihood of success on the merits; (2) no adequate remedy at law exists, and; (3)
Plaintiff will suffer irreparable harm without the injunction. Woods v. Buss, 496
F.3d 620, 622 (7th Cir. 2007). If those three factors are shown, the district court
must then balance the harm to each party and to the public interest from granting
or denying the injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.
2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999). The United States
Supreme Court has emphasized that a “preliminary injunction is an extraordinary
and drastic remedy, one that should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.” Christian Legal Soc’y v. Walker, 453
F.3d 853, 870 (7th Cir. 2006) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (emphasis in original)).
Without expressing any opinion on the merits of plaintiff’s other claims for
relief, the Court concludes that a TRO should not issue in this matter. Plaintiff’s
allegations do not set forth specific facts demonstrating the likelihood of
immediate and irreparable harm before defendants can be heard.
Page 5 of 12

However,

plaintiff’s general request for injunctive relief shall be referred to the United States
Magistrate Judge for further consideration. Plaintiff is free to file a motion for a
preliminary and/or permanent injunction in this case, in which he may set forth
specific facts to support his request in accordance with the authority discussed
above.

Count 1 – Excessive Force
The intentional use of excessive force by prison guards against an inmate
without penological justification constitutes cruel and unusual punishment in
violation of the Eighth Amendment and is actionable under § 1983. See Wilkins

v. Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir.
2000). An inmate must show that an assault occurred, and that “it was carried
out ‘maliciously and sadistically’ rather than as part of ‘a good-faith effort to
maintain or restore discipline.’” Wilkins, 559 U.S. at 40 (citing Hudson v.

McMillian, 503 U.S. 1, 6 (1992)). An inmate seeking damages for the use of
excessive force need not establish serious bodily injury to make a claim, but not
“every malevolent touch by a prison guard gives rise to a federal cause of action.”

Wilkins, 559 U.S. at 37-38 (the question is whether force was de minimis, not
whether the injury suffered was de minimis); see also Outlaw v. Newkirk, 259
F.3d 833, 837-38 (7th Cir. 2001). Notably, a defendant can never be held liable
under § 1983 for negligence.

Daniels v. Williams, 474 U.S. 327, 328 (1986);

Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir. 1995).

Page 6 of 12

In plaintiff’s case, Chronic himself did not lift plaintiff, but directed inmate
Jackson to do it. Although plaintiff was injured, further factual development will
be necessary in order to determine whether the force used to bring him to a
standing position amounted to “cruel and unusual punishment” so as to violate
the Eighth Amendment.

Accordingly, Count 1 shall proceed for further

consideration.

Count 2 – Americans with Disabilities Act
Plaintiff alleges that Warden Rains and the IDOC violated the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by failing to train staff and
inmates to physically move him without causing injury.

Plaintiff’s treatment

during the search on March 12, 2017, allegedly failed to accommodate his
disability-related condition of being unable to stand on his own.
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, and
prohibits discrimination against disabled individuals by a public entity. 42 U.S.C.
§ 12132. A plaintiff “may establish discrimination by presenting evidence that the
defendant intentionally acted on the basis of the disability, [or] the defendant
refused to provide a reasonable modification[.]” Culvahouse v. City of LaPorte,
679 F. Supp. 2d 931, 937 (N.D. Ind. 2009) (relying upon Washington v. Ind. High

Sch. Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999)). The Supreme Court

Page 7 of 12

has held that Title II of the ADA applies to prisons. See Pennsylvania Dept. of

Corrections v. Yeskey, 524 U.S. 206 (1998). 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).
Based on his physical condition, plaintiff appears to be a qualified disabled
person for ADA purposes. 42 U.S.C. § 12102(1). At this stage, the complaint has
alleged sufficient facts to state a claim against the IDOC that its officials at
Robinson failed to reasonably accommodate plaintiff’s disability-related condition
in conducting a search of his person. Plaintiff’s allegations that the prison lacks
training or policies regarding handling disabled inmates suggest that injunctive
relief be considered. Accordingly, plaintiff’s ADA claim in Count 2 shall proceed
for further review.
When evaluating a disability-related claim, the Court must analyze the
complaint 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 Corrections, 684 F.3d
667 (7th Cir. 2012). Here, because plaintiff has not alleged that he was denied
access to a program or activity on account of his disability, no viable
Rehabilitation Act claim is apparent. See 29 U.S.C. § 705(2)(B).
Count 2 shall proceed under the ADA against the IDOC, but not against
Chronic. “[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. §

Page 8 of 12

12131.” Jaros, 684 F.3d at 670. Warden Rains shall remain in the action at this
time, but only in his official capacity, in order to facilitate the implementation of
any injunctive relief to which plaintiff may be entitled.

See Gonzalez v.

Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a claim for
injunctive relief is the government official responsible for ensuring any injunctive
relief is carried out).

Pending Motions
Plaintiff’s motion for leave to proceed in forma pauperis (IFP) (Doc. 2) shall
be addressed in a separate order.
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the
United States Magistrate Judge for further consideration.
The motion for service of process at government expense (Doc. 4) is
GRANTED. Service on the defendants shall be ordered below.

Disposition
All claims against RAINS in his individual capacity are DISMISSED
without prejudice. RAINS shall remain in this action only in his official capacity
as Warden of Robinson.
To facilitate the disposition of plaintiff’s request for injunctive relief, the
Clerk is DIRECTED to add a docket entry reflecting that plaintiff’s complaint
contains a motion for preliminary injunctive relief pursuant to Federal Rule of

Page 9 of 12

Civil Procedure 65(a).

This motion shall be referred to the United States

Magistrate Judge, who shall resolve the request for preliminary injunction as soon
as practicable. Any motions filed after the date of this Order that relate to the
request for injunctive relief or seek leave to amend the complaint are also hereby
REFERRED to the U.S. Magistrate Judge.
The Clerk of Court shall prepare for CHRONIC, RAINS (in his official
capacity

as

Warden

of

Robinson),

and

ILLINOIS

DEPARTMENT

of

CORRECTIONS: (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

Page 10 of 12

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, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to the 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, 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

Page 11 of 12

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).

Digitally signed by
Judge David R. Herndon
Date: 2017.05.04
09:31:27 -05'00'

IT IS SO ORDERED.
DATED: May 4, 2017

United States District Judge

Page 12 of 12