Parnell v. Scott et al

Filing 8

IT IS HEREBY ORDERED that the First Amended Complaint (Doc. 4), including COUNTS 5, 6, 7, 8, 9, 10, and 11, are DISMISSED without prejudice for non-compliance with Rule 8 of the Federal Rules of Civil Procedure and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and for failure to state a claim upon which relief may be granted. Plaintiff is GRANTED leave to file his Second Amended Complaint on or before November 15, 2017. Should Plaintiff fail to file an amended complaint within the allotted time, dismissal will become with prejudice. (Amended Pleadings due by 11/15/2017). Signed by Judge David R. Herndon on 10/18/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONNIE PARNELL,
#N56008,
Plaintiff,
v.

Case No. 3:17-cv-00717-DRH

DR. SCOTT, SGT. CHAPMAN,
LT. PIERCE, COUNSELOR LANDIS,
NURSE PEEK, C/O SMITH,
OFFICER DUDEK, LOVE,
JANE DOE 1, JANE DOE 2,
JANE DOE 3, and JANE DOE 4,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Ronnie Parnell filed a civil rights action pursuant to 42 U.S.C.
§ 1983 for deprivations of his constitutional rights by officials at Pinckneyville and
Lawrence Correctional Centers. See Parnell v. Doe, No. 16-cv-1144-NJR (S.D. Ill.)
(“original action”). The original Complaint did not survive screening, and Plaintiff
was granted leave to amend. (Doc. 8). The First Amended Complaint included
unrelated claims against different groups of defendants.

(Doc. 11, original

action). Pursuant to George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Court
severed the claims that arose at Pinckneyville into the instant action. (Doc. 11,
original action).
The instant action addresses seven claims (“Counts 5 through 11”) against
Pinckneyville officials. (Doc. 1, pp. 18-19). Plaintiff alleges that various prison

officials responded to his serious hip injury and related needs with deliberate
indifference and then retaliated against him when he attempted to complain about
his mistreatment.

(Doc. 2).

In connection with these claims, Plaintiff seeks

monetary damages and injunctive relief. 1 (Doc. 4, p. 13).
Counts 5 through 11 are now subject to preliminary review 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
1

In the Memorandum and Severance Order dated July 7, 2017, the Court construed this
request for injunctive relief as “a request for injunctive relief at the close of the case and
as being related to the claims that arose at Pinckneyville.” (Doc. 1, p. 6). If Plaintiff seeks
more immediate relief, he may file a separate motion for a temporary restraining order or
a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a)-(b).

“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).
First Amended Complaint
While he was incarcerated at Lawrence, Plaintiff allegedly suffered from an
infection in his hip that resulted in bone loss and necessitated hip replacement
surgery.

(Doc. 4, pp. 6-8).

Following surgery in January 2013, Plaintiff was

prescribed a cane and physical therapy. (Doc. 4, p. 8). He attended a single
physical therapy session on or around March 2, 2013. Id.
Plaintiff transferred to Pinckneyville sometime in 2015.

(Doc. 4, p. 8).

Sergeant Chapman placed him in a segregation unit with a healthy inmate. Id.
Plaintiff maintains that he was exposed to “an ongoing unnecessary risk to future
serious physical and mental harm” because of this placement arrangement. Id.
From February until April of 2015, Sergeant Chapman, Lieutenant Pierce,
Doctor Scott, and Jane Doe ##1-3 allegedly interfered with “widely circulated
medical orders and recommendations” for treating inmates with physical injuries
or disabilities by denying Plaintiff access to physical therapy, patient education,
and proper exercise. (Doc. 4, p. 9).
In April or May of 2015, Plaintiff asked Counselor Landis for information
about preparing and filing a grievance and lawsuit against prison officials. (Doc.
4, p. 9). Counselor Landis discouraged Plaintiff from pursuing either form of
relief. Id. The counselor warned Plaintiff that he would continue to be treated
like a “trouble maker living a disadvantaged life” without commissary, law library,

therapy, or disabled recreation gym, if he complained about staff.

Id. All of

Plaintiff’s subsequent requests for grievances and law library access were ignored
or denied. Id. With a single exception, Plaintiff’s requests for physical therapy
were also ignored. Id.
On April 12, 2016, Officer Smith, Nurse Peek, and Jane Doe #4 allegedly
interfered with his prescribed course of treatment when they confiscated Plaintiff’s
cane and prevented him from following his doctor’s orders to exercise. (Doc. 4, p.
10).

Two weeks later, Plaintiff slipped, fell, and injured his finger while

showering, and he attributes the injury to the denial of his cane. Id.
In October 2016, Plaintiff was reassigned to a new housing unit. (Doc. 4, p.
10). His cell was located on the second floor at the end of a long gallery. Id.
Plaintiff told Officer Dudek about his hip replacement and complained of ongoing
pain. (Doc. 4, pp. 10, 16-17). However, the officer ignored his complaints and
ordered Plaintiff to carry his own mattress, property box, and fan up the stairs.

Id. He also assigned Plaintiff to a top bunk. Id. Plaintiff was not reassigned to a
new cell for two or three days. Id.
Discussion
This case focuses on the following seven claims that arose during Plaintiff’s
incarceration at Pinckneyville:
Count 5 -

Eighth Amendment deliberate indifference claim against Scott,
Jane Doe 1, Jane Doe 2, Jane Doe 3, Chapman, and Pierce for
denying Plaintiff access to a physical therapist and patient
education, contrary to existing medical orders, between
February 2015 and April 2015.

Count 6 -

Eighth Amendment deliberate indifference claim against Scott,

Jane Doe 1, Jane Doe 2, Jane Doe 3, Chapman, and Pierce for
exposing Plaintiff to an ongoing risk of future physical and
mental harm from Plaintiff’s healthy cellmate between
February 2015 and April 2015.
Count 7 -

First Amendment retaliation claim against Landis.

Count 8 -

First and/or Fourteenth Amendment access to courts claim
against Landis.

Count 9 -

Eighth Amendment deliberate indifference claim against
Smith, Peek, and Jane Doe 4 for confiscating Plaintiff’s cane on
April 12, 2016.

Count 10 - Eighth Amendment deliberate indifference claim against
Dudek for his conduct in October 2016 when he transferred
Plaintiff to a new cell.
Count 11 - Eighth Amendment cruel and unusual punishment claim
against Dudek for his conduct in October 2016 when he
transferred Plaintiff to a new cell assignment.
(See Doc. 1, p. 7).

The parties and the Court will continue to use these

designations in all future pleadings and orders, unless otherwise directed by a
judicial officer of this Court.

Any claims that are not identified above are

considered dismissed without prejudice from this action.
The First Amended Complaint suffers from two significant problems, as it
pertains to the Pinckneyville claims. First, it appears that further severance of the
Pinckneyville claims is necessary.

Second, Plaintiff sets forth insufficient

allegations in support of his claims to satisfy basic pleadings standards or state
any claim against the defendants.
matter can proceed.

Both issues must be addressed before this

1.

Improper Joinder
The claims in the First Amended Complaint were previously severed into

two separate cases. (Doc. 11, original action; Doc. 1, instant action). The original
action addresses the claims that arose during Plaintiff’s incarceration at
Lawrence.

See Parnell v. Doe, No. 16-cv-1144-NJR (S.D. Ill.).

This case

addresses the claims that arose during his incarceration at Pinckneyville. (Doc. 1,
instant action).
It appears that the Pinckneyville claims may be subject to further
severance. Plaintiff names unique groups of defendants in connection with the
severed claims. Defendants Scott, Chapman, Pierce, and Doe ##1-3 are named
in connection with Counts 5 and 6; Defendant Landis is named in connection with
Counts 7 and 8; Defendants Smith, Peek, and Doe #4 are named in connection
with Count 9; and Defendant Dudek is named in connection with Counts 10 and
11.

Plaintiff brings his claims under the First, Eighth, and Fourteenth

Amendments, based on distinct events that occurred at different times and lack
any apparent connection to one another.
The Seventh Circuit Court of Appeals has made it clear that a “litigant
cannot throw all of his grievances, against dozens of different parties, into one
stewpot.” Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 683 (7th Cir.
2012). Unrelated claims against different defendants belong in separate lawsuits,
“not only to prevent the sort of morass” produced by multi-claim, multi-defendant
suits, “but also to ensure that prisoners pay the required filing fees” under the
Prison Litigation Reform Act. George v. Smith, 507 F.3d at 607 (citing 28 U.S.C.

§ 1915(b)(g)); Wheeler v. Talbot, -- F. App’x --, 2017 WL 2417889 at *1 (7th Cir.
June 5, 2017) (failing to sever improperly joined claims prejudices the United
States Treasury); Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017) (district
court should have severed unrelated claims against different defendants).

In

addition, a prisoner who files a “buckshot complaint” that includes multiple
unrelated claims against different individuals should not be allowed to avoid
“risking multiple strikes for what should have been several different lawsuits.”

Turley v. Gaetz, 625 F.3d 1005, 1011 (7th Cir. 2010).
Under Rule 21 of the Federal Rules of Civil Procedure, the Court has broad
discretion when deciding how to address improper joinder. See FED. R. CIV. P.
21; Owens v. Hinsely, 635 F.3d 950, 952 (7th Cir. 2011); Rice v. Sunrise Express,

Inc., 209 F.3d 1008, 1016 (7th Cir. 2000). The Court may sever improperly
joined claims, dismiss improperly joined defendants, or authorize Plaintiff to
amend his complaint and omit improperly joined claims or defendants.

See

Taylor v. Brown, 787 F.3d 851 (7th Cir. 2015) (amending the complaint is a
proper method for “adding or dropping parties and claims” when claims are
misjoined). When considering the proper course of action in the instant case, the
Court must also consider the second major problem presented.
2.

Violation of Basic Pleading Requirements
The First Amended Complaint clearly violates Rule 8 of the Federal Rules of

Civil Procedure and the pleading standards discussed in Twombly and Iqbal. See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S.
662 (2009). Rule 8 requires a complaint to set forth “a short and plain statement

of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2).
The allegations should be “simple, concise, and direct.” FED. R. CIV. P. 8(d)(1).
It is possible to fall short of this standard by setting forth vague or sketchy
allegations in support of a claim. The First Amended Complaint suffers from this
pleading defect. Plaintiff has not included “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570. Time and again, he
relies on a single conclusory statement to support his claims against the
defendants.

Threadbare and conclusory allegations run afoul of Rule 8(a)(2).

They also fail to satisfy the “plausibility” standard described in Twombly and

Iqbal, which requires “the plaintiff [to] plead[ ] 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. at 678.
To state a claim for monetary relief under § 1983, Plaintiff must allege that
each defendant was personally involved in the deprivation of a constitutional
right. Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014) (“A damages suit under §
1983 requires that a defendant be personally involved in the alleged constitutional
deprivation.”). The standard civil rights complaint form offered to pro se litigants
in this District instructs plaintiff to do the following: “State here, as briefly as
possible, when, where, how, and by whom you feel your constitutional rights were
violated.” Plaintiff did not include this basic information in his First Amended
Complaint.
A.

Eighth Amendment Claims

Most claims in this severed case, including Counts 5, 6, 9, 10, and 11, arise

under the Eighth Amendment, which prohibits the unnecessary and wanton
infliction of pain and punishment against prisoners. U.S. CONST., amend. VIII.
All Eighth Amendment claims have an objective and a subjective component.

Wilson v. Seiter, 501 U.S. 294, 302 (1991); Rhodes v. Chapman, 452 U.S. 337,
346 (1981); McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994). For claims based
on the denial of medical care, such as Counts 5, 9, and 10, a plaintiff is required
to establish that he suffered from a sufficiently serious medical need. Berry v.

Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (citations omitted).

Failure-to-

protect claims, such as Count 6, require a plaintiff to demonstrate that he faced
an objectively serious risk of harm.

Farmer v. Brennan, 511 U.S. 825, 834

(1994). Claims of unconstitutional conditions of confinement, such as Count 11,
require the plaintiff to demonstrate that the condition resulted in the
unquestioned and serious deprivation of the minimal civilized measure of life’s
necessities. Rhodes, 452 U.S. at 347; Jamison-Bey v. Thieret, 867 F.2d 1046,
1048 (7th Cir. 1989). In other words, the deprivation must be “extreme” and not
just temporary and uncomfortable. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992).
The subjective component of these claims is satisfied where the defendant
responded with deliberate indifference by disregarding an excessive risk to the
inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 842 (1994).
Plaintiff offers insufficient allegations to support either component of these
claims. The allegations do not support a finding that Plaintiff suffered from an
objectively serious medical need or threat to his safety or health at Pinckneyville.

He underwent hip replacement surgery two years before he transferred to
Pinckneyville. Although he was issued a cane and prescribed a course of physical
therapy following surgery, it is unclear whether he still needed either when he
arrived at Pinckneyville two years later. Plaintiff does not specifically describe
medical orders that were in effect at that time, other than in vague terms, or
indicate that he requested or was denied care by a medical provider or staff
member during his incarceration at Pinckneyville. Further, Plaintiff’s complaints
regarding his cell assignment and cellmate are too vague to support any finding
that he actually suffered harm or faced an objectively serious risk of harm.
The allegations lack sufficient detail to satisfy the subjective component of
these claims as well. It is unclear who, when, and how often Plaintiff asked any of
the defendants to assist him in obtaining medical care, better living conditions, or
protection.

Given the allegations, the Court cannot determine whether the

defendants were actually aware that Plaintiff still needed special care or
accommodations for his hip injury.

The exhibits offer few additional details

regarding Plaintiff’s communications with each defendant.

The First Amended

Complaint does not state a plausible deliberate indifference claim against any
defendants. Accordingly, Counts 5, 6, 9, 10, and 11 do not survive preliminary
review.
B.

First and/or Fourteenth Amendment Claims

Plaintiff’s remaining claims against Defendant Dudek for retaliation (Count
7) and denial of access to the courts (Count 8) suffer from the same lack of
information.

Prison officials may not retaliate against inmates for filing

grievances or otherwise complaining about their conditions of confinement. 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). Likewise, they may not interfere with a prisoner’s fundamental right
to access the courts. Bounds v. Smith, 430 U.S. 817 (1977).
With respect to both claims, Plaintiff does not allege that Dudek was
personally involved in denying him grievance forms, law library access, or
physical therapy, either before or after this defendant threatened to treat Plaintiff
like a “trouble maker” for seeking information regarding the same.

The First

Amended Complaint fails to set forth a chronology of events from which a
retaliation claim can plausibly be inferred against Dudek.

See Zimmerman v.

Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (“A complaint states a claim for
retaliation when it sets forth ‘a chronology of events from which retaliation may
plausibly be inferred.’”).

Further, he identifies no legal claim that was lost or

impeded because of Dudek’s alleged interference with his right to access the
courts.

Lewis v. Casey, 518 U.S. 343, 352-53 (1996) (inmate has no

constitutional claim unless he can demonstrate that a non-frivolous legal claim
was frustrated or impeded). Absent allegations suggesting that Dudek took action
to retaliate against Plaintiff or impeded his ability to pursue a non-frivolous claim,
the allegations fall short of stating a claim under the First or Fourteenth

Amendment against this defendant. Accordingly, Counts 7 and 8 do not survive
preliminary review.
Under the circumstances presented, the Court deems it appropriate to
dismiss Counts 5 through 11 at this time for failure to comply with Rule 8 and for
failure to state a claim upon which relief may be granted. However, Plaintiff shall
be granted leave to file another amended complaint, consistent with the deadline
and instructions for doing so below.
Second Amended Complaint
If he chooses to proceed with his claims in this action, Plaintiff must file a
Second Amended Complaint on or before November 15, 2017.

However, he

should only bring related claims against the same defendant(s). This requires
Plaintiff to choose which claims he will pursue in this action and omit all
reference to unrelated claims against other defendants. See Taylor v. Brown, 787
F.3d 851 (7th Cir. 2015).
By omitting reference to improperly joined claims in his Second Amended
Complaint, Plaintiff does not lose the right to pursue those claims.

He may

pursue them by filing a separate suit. See Kadamovas v. Stevens, 706 F.3d 843,
846 (7th Cir. 2013) (holding that, in the case of misjoinder, courts can require a
prisoner to “file separate complaints, each confined to one group of injuries and
defendants”). If he chooses to go this route, Plaintiff will be required to pay a
filing fee for each new lawsuit he brings. He should keep in mind that the “statute
of limitations for § 1983 actions in Illinois is two years.” O’Gorman v. City of

Chicago, 777 F.3d 885, 889 (7th Cir. 2015). Further, the Court retains authority

to sever the unrelated claims into separate actions and impose a filing fee for each
case. See FED. R. CIV. P. 21.
If Plaintiff instead chooses to bring all of his Pinckneyville claims again in
the Second Amended Complaint, this Court will sever unrelated claims against
different defendants into separate actions if it determines that they are improperly
joined in a single action. Plaintiff will have no say in the matter. The Court will
open a new case for each set of unrelated claims and assess a filing fee in each
case. The newly severed cases will also be subject to preliminary review under
28 U.S.C. § 1915A and potentially a strike under § 1915(g).
Disposition
IT IS HEREBY ORDERED that the First Amended Complaint (Doc. 4),
including COUNTS 5, 6, 7, 8, 9, 10, and 11, are DISMISSED without prejudice
for non-compliance with Rule 8 of the Federal Rules of Civil Procedure and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and for failure to state a claim
upon which relief may be granted.
Plaintiff is GRANTED leave to file his Second Amended Complaint on or
before November 15, 2017. Should Plaintiff fail to file an amended complaint
within the allotted time, dismissal will become with prejudice. FED. R. CIV. P.
41(b).

See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997);

Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). Further, a “strike” may be
assessed. See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly
recommended that he use the forms designed for use in this District for such

actions. The Second Amended Complaint shall present each claim in a separate
count, and each count shall specify, by name, each defendant alleged to be liable
under the count, as well as the actions alleged to have been taken by that
Defendant.

Plaintiff should attempt to include the facts of his case in

chronological order, inserting each defendant’s name where necessary to identify
the actors.

Plaintiff should refrain from filing unnecessary exhibits.

Plaintiff

should i nclude only related claims against common defendants in his new
complaint. Claims found to be unrelated against different defendants will be
severed into new cases, new case numbers will be assigned, and additional
filing fees will be assessed. To enable Plaintiff to comply with this order, the
Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form.
Plaintiff is ADVISED that this dismissal shall not count as one of his
allotted “strikes” under the provisions of 28 U.S.C. § 1915(g).
An amended complaint supersedes and replaces the original complaint,
rendering the original complaint void. See Flannery v. Recording Indus. Ass’n of

Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004). The Court will not accept piecemeal
amendments to the original complaint. Thus, the Second Amended Complaint
must stand on its own, without reference to any previous pleading, and
Plaintiff must re-file any exhibits he wishes the Court to consider along with
the Second Amended Complaint.

The Second Amended Complaint is also

subject to review pursuant to 28 U.S.C. § 1915A.

Plaintiff is further ADVISED that his obligation to pay the filing fee for this
action was incurred at the time the action was filed, thus the filing fee of $350.00
remains due and payable, regardless of whether Plaintiff elects to file an amended
complaint. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to
keep the Clerk of Court and each opposing party informed of any change in his
address; the Court will not independently investigate his whereabouts. This shall
be done in writing and not later than 7 days after a transfer or other change in
address occurs.

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

transmission of court documents and may result in dismissal of this action for
want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
Signed this 18th day of October, 2017.

Digitally signed by
Judge David R.
Herndon
Date: 2017.10.18
15:34:12 -05'00'
UNITED STATES DISTRICT JUDGE