Peters v. USA et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 6/12/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

SCOTT PETERS,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
DAVID SHULKIN,
ROBERT A. MCDONALD,
LYNETTE T. TAYLOR,
DEPT. OF VETERANS AFFAIRS,
BRUCE RAUNER, and
JOHN BALDWIN,
Defendants.

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Case No. 17−cv–499−SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Scott Peters, an inmate in Menard Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 and the Federal Tort
Claims Act, 28 U.S.C. §§1346, 2671-2680. Specifically, Plaintiff claims that the defendants
have been deliberately indifferent to his serious medical issues in violation of the Eighth
Amendment and have failed to accommodate his disability related needs, among various other
allegations. (Doc. 1). 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–
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(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the Court finds that a
portion of the Complaint survives threshold review.
The Complaint
In the Complaint, Plaintiff dedicates a large portion of his Complaint to detailing his
interactions with the police that led to his incarceration. He maintains his innocence and asserts
that the fault was placed “on the Plaintiff as if there was no one else involved in the situation.”
Id. He claims that the police attacked his background, presumably at trial, by asserting “Plaintiff
was crazy” and using a false narrative regarding his history with firearms and a fake hand
grenade. (Doc. 1-1, p. 3). Plaintiff asserts that if law enforcement had handled the interaction
with him that led to his crime appropriately, the entire situation would have been averted. Id.
He also claims that the government employing military combat soldiers and allowing them “to
go unchecked . . . on civilian homes and property” also made his crime unavoidable, particularly
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because the police did not attempt to de-escalate the situation. (Doc. 1-1, p. 4).
Plaintiff also sets forth the following allegations in his Complaint (Doc. 1): Plaintiff is a
military veteran who was severely and permanently injured while on duty. (Doc. 1-1, p. 2). He
was a different person before he joined the army and has since suffered from psychological
issues, including depression, as well as physical disabilities and pain. Id. He has consistently
sought help from the Department of Veterans Affairs (“VA”) for these issues for the past 31
years. Id.
Although he has disability related to his service, he has been deprived of his benefits and
health care over the years. Id. This deprivation has caused him an “emotional insanity and
emotional distress to Plaintiff’s family and irreparable harm to Plaintiff . . . creating irreversible
psychosis.” Id. He asserts that no one at the Veterans Administration cared, or at least took any
action to help him other than to harass his wife about stopping him if he tried to kill himself. Id.
The Veterans Administration, federal government, governor and director of IDOC knew he was
being deprived of care for years and that it was affecting his health, safety and psychological
state. (Doc. 1-1. p. 5). Plaintiff claims that this situation has almost cost him his life on more
than one occasion, and that being disabled in a maximum security prison ensures that his life
continues to be in danger and leaves him terrified for his safety every day. Id. He further asserts
that he should not be in prison due to his right to protect himself, his home, and his property
under Illinois state law. Id.
While in prison, he has struggled to receive the medical treatment he is owed due to his
Class 4 Medical Card designation. Id. Specifically, he claims the following: that he is supposed
to receive another colonoscopy because he had polyps removed; that he is supposed to get his
pain problems resolved; that he is supposed to have surgery for his stomach hernia; that he is not

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given common things like creams for jungle rot or Tylenol for headaches; and that he has blood
in his urine and stool, and his prostate has not been checked. Id. He also alleges that he is
charged co-pays when he is not supposed to pay anything and that although his medical is
allegedly supposed to come from the Veterans Administration, he has been told that he is not
entitled to any medical for his service connected injuries. Id.
Plaintiff also claims that he is restricted to crawling around on the floor because he does
not have any assistive devices and that there are not enough wheelchairs or chairs in the shower.
Id. He is also unable to access a doctor’s office at the end of the hall with a wheelchair, so he is
forced to sit outside in the hall, even during visits with a psychologist. Id. He also sometimes
cannot eat the things the other inmates are given because he is not brought to the mess hall. Id.
He is also unable to go to recreational or go to night yard due to his disabilities. As a result, the
other inmates are allowed to be out of their cells 4 hours more than Plaintiff per week. Id.
Plaintiff has written many grievances to have these issues resolved. Id.
Plaintiff requests monetary damages from the defendants as well as declaratory relief.
(Doc. 1, p. 7). He also seeks a preliminary and permanent injunction, ordering the defendants to
“stop ignoring Plaintiff’s serious medical needs caused by service in the United States Armed
Forces and provide the medical services deserved, along with safe and accessible housing.” Id.;
(Doc. 5).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 5 counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion regarding their merit.

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Count 1 –

Defendants are at fault for the situation that led to Plaintiff’s arrest and
incarceration due to their negligence, intentional infliction of emotional
distress, and deliberate indifference to Plaintiff’s medical and
psychological needs.

Count 2 –

Defendants violated the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12111–213, and Rehabilitation Act, 29 U.S.C. §§ 794–94e, for
failing to accommodate Plaintiff’s various disabilities and thereby
depriving him of various prison programs.

Count 3 –

Defendants have been deliberately indifferent to Plaintiff’s various serious
medical needs, including those related to his pain, hernia, and need for a
colonoscopy, in violation of the Eighth Amendment.

Count 4 –

Defendants subjected Plaintiff to unconstitutional conditions of
confinement in violation of the Eighth Amendment by depriving him of
certain meals and recreation time, as well as better access to shower
benches and wheelchairs.

Count 5 –

Defendants are liable to Plaintiff under the Federal Tort Claims Act, 28
U.S.C. §§1346, 2671-2680, for failing to give him appropriate medical
treatment during his incarceration.

As discussed in more detail below, Count 2 will be allowed to proceed. Counts 1, 3, 4
and 5 will be dismissed. Any other intended claim that has not been recognized by the Court is
considered dismissed with prejudice as inadequately pleaded under the Twombly pleading
standard.
Veterans Affairs Defendants
Before analyzing the merits of Plaintiff’s specific claims, the Court finds it appropriate to
address more generally Plaintiff’s inability to bring claims against several of the named
defendants related to his VA benefits. “In general, review of decisions made in the context of an
individual veteran’s VA benefits proceedings are beyond the jurisdiction of federal courts
outside the review scheme established by the [Veterans Judicial Review Act]. This is true even
if the veteran addresses his claim as a constitutional challenge.” Veterans For Common Sense v.
Shinseki, 678 F.3d 1013, 1023 (9th Cir. 2012) (en banc ) (citing Zuspann v. Brown, 60 F.3d
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1156, 1159–60 (5th Cir. 1995) (finding no remedy for the constitutional violation because
veteran was ultimately “complaining about benefits”). Instead, jurisdiction belongs “in the
Veterans Court and the Federal Circuit.” Id. at 1026. Therefore, David Shulkin, the Director of
the VA, Robert A. McDonald, the Assistant Director of the VA, Lynette Taylor, the Director of
the Edward Heines Jr. VA Hospital, and the Department of Veterans Affairs (collectively, “VA
Defendants”) will be dismissed with prejudice from this action.
Count 1 – Arrest and Conviction
A large portion of Plaintiff’s Complaint focuses on alleged conduct by various defendants
in the incident that led to Plaintiff’s arrest and incarceration. However, a plaintiff convicted or
sentenced for an offense may not bring an action for damages under § 1983 where “a judgment
in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,”
save when “the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). The rule set forth in Heck “is
intended to prevent collateral attack on a criminal conviction through the vehicle of a civil suit.”
McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006). As such, until a conviction or sentence
has been invalidated, a claim for damages simply “does not accrue[.]” Heck, 512 U.S. at 490.
A finding for Plaintiff on Count 1 would necessarily call into question the validity of his
conviction. Plaintiff’s allegations relevant to this count specifically raise the question as to
whether he, or some of the defendants, should be considered at fault for his crime. Those
allegations therefore run afoul of Heck. Thus, until Plaintiff can show that his conviction or
sentence has been invalidated, he will be barred from bringing a civil suit on this issue.
Accordingly, Count 1 will be dismissed without prejudice.

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Count 2 – ADA and Rehabilitation Act
Title II of the ADA provides that “no qualified individual with a disability shall, because
of that disability . . . be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

The

Rehabilitation Act also prohibits discrimination against qualified individuals based on a physical
or mental disability. See 29 U.S.C. §§ 794-94e. Discrimination under both statutes includes the
failure to accommodate a disability. Wagoner v. Lemmon, 778 F.3d 586 (7th Cir. 2015). In this
case, the analysis under the ADA and Rehabilitation Act is the same, except that the
Rehabilitation Act includes as an additional element the receipt of federal funds, which all states
accept for their prisons. Id. at 592 (citing Jaros v. Illinois Dep't of Corr., 684 F.3d 667, 671-72
(7th Cir. 2012)) (citing 29 U.S.C. § 705(2)(B)).
In a prison setting, access to meals and certain housing facilities, including showers,
toilets and sinks, are among the programs and activities protected by the ADA and the
Rehabilitation Act. Jaros, 684 F.3d at 672; see also Phipps v. Sheriff of Cook County, 681 F.
Supp. 2d 899, 916 (N.D. Ill. 2010); Pennsylvania Department of Corrections v. Yeskey, 524 U.S.
206 (1998). Here, the allegations suggest that Plaintiff is a qualified individual with a disability,
given that he relies, at least in part, on the use of a wheelchair. He has also alleged that he has
been denied various benefits as a result of his disability, including certain meals, certain periods
of recreation time and privacy during doctor’s visits. He claims that at times, he is forced to
crawl on the floor to move around because of a shortage in wheelchairs, and that there are not
enough chairs in the showers to accommodate those with disabilities, including himself. At this
stage, these allegations are sufficient to state a claim under the ADA and Rehabilitation Act.
Accordingly, the ADA and Rehabilitation Act claims in Count 2 shall receive further review.

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However, these claims cannot proceed against the individual defendants because
individual employees of IDOC cannot be sued under the ADA or Rehabilitation Act. Jaros, 684
F.3d at 670. The proper defendant is the relevant state department or agency. See 42 U.S.C. §
12131(1)(b); Jaros, 684 F.3d at 670 n.2 (individual capacity claims are not available; the proper
defendant is the agency or its director (in his or her official capacity)). Plaintiff has not named
IDOC as a defendant, but he has named the Director of IDOC, John Baldwin. Count 2 shall
therefore proceed against Baldwin in his official capacity only. This claim shall be dismissed
with prejudice against Baldwin in his individual capacity and against all other defendants.
Count 3 – Deliberate Indifference to Medical Needs
Plaintiff’s Eighth Amendment deliberate indifference to medical needs claim does not
survive screening because Plaintiff has failed to provide allegations sufficient to connect any of
the defendants with this claim. It is well established that “[f]or constitutional violations under §
1983 ... a government official is only liable for his or her own misconduct.” E.g., Locke v.
Haessig, 788 F.3d 662, 669 (7th Cir. 2015). “This means that to recover damages against a
prison official acting in a supervisory role, a § 1983 plaintiff may not rely on a theory of
respondeat superior and must instead allege that the defendant, through his or her own conduct,
has violated the Constitution.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
However, “[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 a constitutional deprivation.” Perez, 792 F.3d at 781-82 (citing Vance v. Peters,
97 F.3d 987, 993 (7th Cir. 1996)) (“[A] prison official's knowledge of prison conditions learned
from an inmate's communications can, under some circumstances, constitute sufficient

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knowledge of the conditions to require the officer to exercise his or her authority and to take the
needed action to investigate and, if necessary, to rectify the offending condition.”). “In other
words, prisoner requests for relief that fall on ‘deaf ears' may evidence deliberate indifference.”
Perez, 792 F.3d at 782.
Plaintiff has also not included as defendants any of his medical providers at Menard who
might be directly responsible for his care. Instead, he seeks to hold the named defendants liable
based on grievances that he submitted. But Plaintiff merely states that he sent grievances
through various grievance systems, including those for Menard, the DOJ, the VA, the governor’s
office, the United States Government, and IDOC, to have his issues resolved. The Court cannot
determine whether these alleged grievances were sufficiently detailed so as to alert any of the
defendants to a constitutional deprivation, or if any of the defendants actually received them or
could have effectively remedied the alleged deprivations. Because Plaintiff has not alleged that
any defendant specifically participated in the alleged deliberate indifference to his medical
needs, or was aware of it and turned a blind eye, Count 3 will be dismissed without prejudice.
Count 4 – Conditions of Confinement
Plaintiff has also failed to connect any of the defendants with his conditions of
confinement claim. He has not alleged that any of the named defendants are directly responsible
for his missing meals and recreation time, or the lack of shower benches and wheelchairs.
Plaintiff’s allegations are also lacking in detail as to how he has been deprived of the “minimal
civilized measure of life's necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981), that must
be afforded prisoners. See Wilson v. Seiter, 501 U.S. 294, 304 (1991); Vinning–El v. Long, 482
F.3d 923, 924 (7th Cir. 2007); Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006); Thompson v.
Colorado, 278 F.3d 1020, 1032 (10th Cir. 2001); LaFaut v. Smith, 834 F.2d 389, 392–94 (4th

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Cir. 1987) (Powell, J., sitting by designation). Specifically, he has not alleged that he has been
completely deprived of the ability to shower, nor that occasionally missing meals and certain
recreation time endangers his health. Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 670-71 (7th Cir.
2012) (inmate who missed some meals and, though with difficulty, managed to use the toilets
and showers when necessary was not deprived of life’s necessities) (citing Reed v. McBride, 178
F.3d 849, 853 (7th Cir. 1999) (extent, duration, and consequences are relevant in assessing
whether deprivation of food violates Eighth Amendment); Berry v. Brady, 192 F.3d 504, 507
(5th Cir. 1999) (two meals per day on “regular, permanent basis” may satisfy Eighth Amendment
if nutritionally adequate)). For these reasons, Count 4 will be dismissed without prejudice.
Count 5 – Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”) provides jurisdiction for suits against the United
States arising from torts committed by federal officials. Thus, federal prisoners may bring suit
under the FTCA for injuries sustained through the negligent or wrongful acts or omissions of
prison officials. Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003) (discussing United
States v. Muniz, 374 U.S. 150 (1963)). However, a plaintiff may not bring a suit under the FTCA
unless he has first presented his claim to the appropriate federal agency and that agency has
denied the claim. 28 U.S.C. § 2675(a). A plaintiff bringing a claim under the FTCA generally
shows exhaustion by filing with his Complaint a copy of the “final denial of claim” letter,
indicating that agency review has been completed and the individual may seek relief in court.
In this case, Plaintiff has provided no evidence that agency review has been completed.
Further, Plaintiff is not a federal prisoner, and this Court does not have jurisdiction to hear his
claims against the only federal defendants Plaintiff seeks to assert claims against – the VA
Defendants. Thus, Plaintiff’s claim asserted against the United States of America under the

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FTCA (Count 5) is dismissed with prejudice.
Temporary Restraining Order
Plaintiff’s Motion for Preliminary Injunction (Doc. 5) references “temporary restraining
order” (“TRO”). Out of an abundance of caution, this Court will therefore consider whether a
TRO is warranted in this situation.
A TRO is an order issued without notice to the party to be enjoined that may last no more
than 14 days. FED. R. CIV. P. 65(b)(2). 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)(1).
Without expressing an opinion on the merits of any of Plaintiff’s other claims for relief,
the Court concludes that a TRO should not be issued. Plaintiff’s allegations do not set forth
specific facts demonstrating the likelihood of immediate and irreparable harm before Defendants
can be heard. At the same time, courts must exercise equitable restraint when asked to take over
the administration of a prison, something that is best left to correctional officials and staff. See
Sandin v. Conner, 515 U.S. 472, 482 (1995); Rizzo v. Goode, 423 U.S. 362, 379 (1976) (noting
that where a plaintiff requests an award of remedial relief that would require a federal court to
interfere with the administration of a state prison, “appropriate consideration must be given to
principles of federalism in determining the availability and scope of [such] relief.”).
Plaintiff is advised that though his motion contains new allegations regarding retaliation

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and mentions non-defendants as if they were liable, these new claims will not be considered as
supplemental to Plaintiff’s current Complaint. Should Plaintiff wish to add claims or defendants,
he must file a new suit or, to the extent these claims are sufficiently related to his current claims,
properly file an amended complaint.
Accordingly, the Court denies the Motion for Preliminary Injunction (Doc. 5) to the
extent it requests a temporary restraining order.
Pending Motions
Plaintiff’s Motion for Preliminary Injunction (Doc. 5) is hereby REFERRED to United
States Magistrate Judge Reona J. Daly for consideration. To the extent Plaintiff’s Motion for
Preliminary Injunction (Doc. 5) seeks a temporary restraining order, however, it is DENIED
without prejudice.
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is hereby REFERRED to United
States Magistrate Judge Reona J. Daly for consideration.
Plaintiff’s Motion for Inclusion of Exhibit 11 (Doc. 8) is hereby REFERRED to United
States Magistrate Judge Reona J. Daly for consideration.
Disposition
IT IS HEREBY ORDERED that COUNTS 1, 3, and 4 are DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that COUNT 2 shall PROCEED against BALDWIN, in
his official capacity only. This claim is DISMISSED with prejudice as against Baldwin in his
individual capacity, and as against all other defendants, for failure to state a claim upon which
relief may be granted.
IT IS FURTHER ORDERED that COUNT 5 is DISMISSED with prejudice for failure

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to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that UNITED STATED OF AMERICA, SHULKIN,
MCDONALD, TAYLOR, DEPARTMENT OF VETERANS AFFAIRS, and RAUNER are
DISMISSED with prejudice for failure to state a claim upon which relief may be granted, and
with respect to the VA Defendants, for lack of jurisdiction.
IT IS FURTHER ORDERED that BALDWIN, in his individual capacity, is dismissed
without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that as to COUNT 2, the Clerk of Court shall prepare for
BALDWIN (official capacity only): (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
the defendant’s place of employment as identified by Plaintiff. If the 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 the defendant,
and the Court will require the defendant pay the full costs of formal service, to the extent
authorized by the Federal Rules of Civil Procedure.
With respect to a defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the defendant’s current work address, or, if
not known, the defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon the defendant (or upon defense counsel once an appearance is

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entered) a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on the defendant or counsel. Any paper
received by a district judge or magistrate judge that has not been filed with the Clerk or that fails
to include a certificate of service will be disregarded by the Court.
Defendant is 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 Reona J. Daly for further pre-trial proceedings.

Further, this entire matter shall be

REFERRED to United States Magistrate Judge Reona J. Daly for disposition, pursuant to
Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, regardless of
the fact 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: 6/12/2017

s/STACI M. YANDLE
U.S. District Judge
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