Coleman v. Lindenberg et al
Filing
1
MEMORANDUM AND ORDER: SEVERING CASE FROM 17-518-DRH-SCW. Signed by Judge David R. Herndon on 7/19/2017. (tkm)
Case 3:17-cv-00518-DRH-SCW Document 8 Filed 07/20/17 Page 1 of 21 Page ID #32
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAINE COLEMAN, #B62923,
Plaintiff,
vs.
Case No. 17-cv-0518-DRH
ILLINOIS DEPARTMENT OF
CORRECTIONS,
AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL
EMPLOYEES (AFSCME),
KENT BROOKMAN,
JASON HART,
WARDEN LASHBROOK,
UNKNOWN PARTY,
SGT. LINDENBERG,
SGT. TAYLOR,
C/O WASSON,
C/O CORNSTOBBLE,
WEXFORD HEALTH,
MOLDENHAUER,
C/O GORDNER,
C/O GEE,
UNKNOWN PARTY #2,
SGT. JONES,
C/O DUDZYNSKI, and
MAJOR CARTER,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Dwaine Coleman, an inmate in Menard Correctional Center
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(“Menard”), brings this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983.
In his Complaint, Plaintiff alleges that the
defendants have violated his constitutional rights in a variety of ways, including by
showing deliberate indifference to his medical needs, depriving him of due
process, sexually harassing him, retaliating against him, stealing from him, and
subjecting him to unconstitutional conditions of confinement. (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–
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Frivolousness is an
objective standard that refers to a claim that any reasonable person would find
meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross
“the line between possibility and plausibility.” Id. at 557. At this juncture, the
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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).
As a part of screening, the Court is also allowed to sever unrelated claims
against different defendants into separate lawsuits.
See George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007). In George, the Seventh Circuit emphasized that
the practice of severance is important, “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. Id. The
Seventh Circuit in Owens v. Godinez, No. 15-3892, WL 2655424 (7th Cir. June
20, 2017) recently issued strong encouragement to district courts to enforce the
directive of George. Consistent with George and Owens, unrelated claims will be
severed into new cases, given new case numbers, and assessed separate filing
fees.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: upon
arriving at Menard on March 1, 2017, Plaintiff was placed in a cell with no
bedding or hygiene items (e.g., soap and toothpaste) and none of his pain and
migraine medication. (Doc. 6, p. 10). He was without these items for two weeks,
pursuant to a policy at Menard disallowing property for new inmates until they
have been at the prison for two weeks. Id. Plaintiff spent ten days in the same
undergarments without the opportunity to clean them properly. Id. Plaintiff’s
cellmate had a colostomy bag, but he did not have proper bio-hazard disposal
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bags or cleaning supplies, which exposed Plaintiff to Hepatitis C and other
infectious diseases because Plaintiff “was forced to double shower in a cage
designed for one with black mold and standing water while [his cellmate] washed
out his colostomy bag which ran into standing water.” Id.
On March 17, “Sgt. Lindenberg threatened and sexually harassed” Plaintiff.
Id. Plaintiff made a PREA report, and Lindenberg “retaliated by taking [Plaintiff’s]
outside recreation on March 18, 2017.” Id. On March 30, 2017, C/Os Wasson
and Cornstobble told other inmates that Plaintiff was a “homosexual snitch for
making a PREA report on Sgt. Lindenberg.” Id. They also walked past Plaintiff’s
cell while saying: “PREA I suck dick” in an antagonistic manner. Id. Plaintiff
requested a crisis team but was retaliated against by being stripped of his
property by Sgt. Taylor without being found guilty of any rule violations or getting
a shakedown or inventory slip for confiscated property. Id.
A “[f]alse I.D.R. for threatening to kill C/Os was written, but [Plaintiff] was
not afforded witnesses or video as requested.” Id.
Taylor, Cornstobble, and Wasson “rigged” Plaintiff’s sink, which caused
water to explode from it and soak Plaintiff’s cell. Id. Plaintiff was injured trying
to avoid the water when he fell and injured his head, neck, and back. Id. Plaintiff
was denied medical attention despite slips he sent to Nurse Reeba. Id. Plaintiff
was “left wet and in pain for two days in [his] cell with only [his] nasty mattress.”
Id. Plaintiff was denied his migraine medication, essential hygiene items (e.g.,
soap and toothpaste), and legal work for fifteen days. Id. “Intel Officer insinuated
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retaliation for [Plaintiff’s] PREA report and ridiculed [Plaintiff] and closed both
investigations [“first time” and water incident] without talking to any of [Plaintiff’s]
listed witnesses.” Id.
“Personal Property when returning property allows inmate workers to steal
whatever they want from segregation offenders.” (Doc. 1, p. 7). Plaintiff’s food
was stolen, along with affidavits and legal books. Id. Plaintiff believes this to be a
statewide practice, custom, or policy, and notes that his fan, television, beard
trimmer, and night light were stolen and never shipped to Menard when he was
transferred there. Id. A grievance officer told Plaintiff that “Personal Property”
told him or her that they had no record of Plaintiff’s items in their file.
Id.
“Personal Property makes offenders sign inventory sheets attesting that all
property is present without allowing inventory . . . under threat of not receiving
property.” Id. Inmate workers deliver this property unsupervised. Id.
A nurse practitioner told Plaintiff that his migraine medication had been
reordered after he had been out of it for a month and a half. Id. After he suffered
a seizure, however, Nurse Norton informed Plaintiff that his medications were not
on order as of April 30, 2017. Id. She submitted Plaintiff to sick call, and M.P.
Moldenhauer switched Plaintiff’s medications from Salsalate, which Plaintiff told
him had been working, to Propranoloc. Id. Plaintiff had three seizures while he
was being denied his migraine medication. Id. Warden Lashbrook and Major
Carter were personally informed of this but failed to act and denied Plaintiff’s
grievance regarding his medication as a non-emergency. Id.
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Menard does not issue rulebooks to inform offenders of expected behavior,
and it denies witnesses and video in investigations. Id. AFSCME has created
policy that emboldens bad acts on the part of its members, as evidenced by
members, including Cornstobble, bragging that they can kill inmates without
repercussions. Id.; (Doc. 1, p. 6). There is also a culture of harassment where
guards make homosexual jokes and falsely label offenders as homosexuals, which
endangers their lives and exposes them to “sexual deviants.” Id. Further, “[a]ll
PREA reports are ruled unsubstantiated with no witnesses contacted.” (Doc. 1, p.
7).
Library access at Menard is “non-existent” because “no legal browsing is
permitted and only book delivery” is available. Id.
Menard and “many IDOC institutions refuse to stock grievances and [other]
forms in conspiracy to interfere with access to courts, while disciplinary reports
are abundant.” Id.
“Inmate property is stolen to keep commissary funds flowing as officers
receive 60% of profits from inmate commissary, [and] offenders constantly have to
replace stolen goods.” (Doc. 1, p. 8). Menard also tells offenders they cannot
grieve the confiscation of food when they have been placed in segregation, and a
variance from IDOC is needed to circumvent the administrative directives on
proper disposal. Id. Lindenberg told Plaintiff about the commissary “scam” when
Plaintiff complained to him about missing property. Id.
Plaintiff’s excessive force / staff conduct complaint was ignored. Id. He
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attempted to mail grievances to the ARB on April 24, 2017, but the receipt was
never returned, and the mailroom refused to respond to his requests regarding
the fact that his six month trust ledger indicates that the grievances were never
mailed. Id.
Plaintiff alleges that the Illinois Department of Corrections (“IDOC”) “has
been aware of all unlawful acts through [the] grievance procedure but has
consistently failed to act while denying grievances.”
(Doc. 1, p. 6).
Plaintiff
further claims that Wexford Health conspires with IDOC to cover abuse and save
money. Id.
Plaintiff includes several allegations against Sgt. Jones, C/O Dudzynski,
Wexford Health, and Nurse Reeba that involve alleged deprivations of Brian
Coleman’s constitutional rights. (Doc. 1, p. 8). However, Brian Coleman is no
longer a party to the case, per this Court’s Order (Doc. 6) granting his Motion to
Withdraw from Litigation (Doc. 5).
Plaintiff seeks declaratory and monetary relief. (Doc. 1, p. 9).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 12 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.
Count 1 –
Lindenberg subjected Plaintiff to cruel and unusual
punishment by threatening and sexually harassing him in
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violation of the Eight Amendment.
Count 2 –
Lindenberg retaliated against Plaintiff for making a PREA
report in violation of the First Amendment by taking his
outside recreation on March 18, 2017.
Count 3 –
Wasson and Cornstobble retaliated against Plaintiff for making
a PREA report in violation of the First Amendment by telling
other inmates Plaintiff was a homosexual and antagonizing him
outside of his cell on March 30, 2017.
Count 4 –
Taylor retaliated against Plaintiff for requesting a crisis team in
violation of the First Amendment by stripping him of his
property without his being found guilty of any rule violations.
Count 5 –
Taylor violated Plaintiff’s Fourteenth Amendment right to due
process by stripping him of his property without his being
found guilty of any rule violations and without providing him
with a shakedown or inventory slip for confiscated property.
Count 6 –
Taylor, Cornstobble, and Wasson subjected Plaintiff to cruel
and unusual punishment in violation of the Eighth Amendment
by tampering with his sink causing water to erupt from it,
which resulted in Plaintiff sustaining injuries.
Count 7 –
Intel Officer (Unknown Party # 2) violated Plaintiff’s
Fourteenth Amendment right to due process and retaliated
against Plaintiff for filing a PREA report in violation of the First
Amendment by closing investigations against Plaintiff without
talking to Plaintiff’s listed witnesses.
Count 8 –
AFSCME has created an unconstitutional policy emboldening
bad acts on the part of its members, as evidenced by members,
including Cornstobble, bragging that they can kill inmates
without repercussions.
Count 9 –
Moldenhauer showed deliberate indifference to Plaintiff’s
medical needs in violation of the Eighth Amendment when he
switched Plaintiff’s migraine medication away from the
medication that had worked for him.
Count 10 – Lashbrook and Carter showed deliberate indifference to
Plaintiff’s medical needs in violation of the Eighth Amendment
by failing to act upon a grievance from Plaintiff concerning the
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deprivation of his migraine medication.
Count 11 – IDOC has violated Plaintiff’s rights by denying grievances
related to the unlawful acts at issue in this action.
Count 12 – Wexford and IDOC conspired to cover abuse and save money
in violation of Plaintiff’s rights.
Plaintiff has brought several distinct sets of claims against different
defendants. These claims do not belong together in a single action. Therefore,
the Court will exercise its discretion and sever unrelated claims against different
defendants into separate cases. George, 507 F.3d at 607. Consistent with the
George decision and Federal Rule of Civil Procedure 21, the Court shall sever,
into a separate action, the claims against Lindenberg, Wasson, Cornstobble,
Taylor, Intel Officer (Unknown Party # 2), and AFSCME, Counts 1 through 8.
This separate action will have a newly assigned case number, and it shall be
assessed a filing fee. The severed case shall undergo preliminary review pursuant
to § 1915A after the new case number and judge assignment has been made.
The claims against Moldenhauer, Lashbrook, Carter, IDOC, and Wexford,
Counts 9 through 12, shall remain in this action.
Per the discussion below,
however, Counts 9, 11, and 12 will be dismissed as frivolous and/or for failure to
state a claim upon which relief may be granted.
To the extent Plaintiff sought to bring claims against individuals or entities
not included in the case caption, including Nurse Reeba, these individuals or
entities will not be treated as defendants in this case, and any claims against them
should be considered dismissed without prejudice. See Myles v. United States,
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416 F.3d 551, 551–52 (7th Cir. 2005) (defendants must be “specif[ied] in the
caption”).
Further, the Court finds it appropriate to address Plaintiff’s failure to
include specific allegations against Kent Brookman, Jason Hart, Menard Personal
Property Supervisor (Unknown Party), C/O Gordner, and C/O Gee in the body of
his Complaint, despite his having listed them among the defendants. Plaintiffs are
required to associate specific defendants with specific claims, so that defendants
are put on notice of the claims brought against them and so they can properly
answer the Complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007); FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a defendant in
his statement of claim, the defendant cannot be said to be adequately put on
notice of which claims in the complaint, if any, are directed against him.
Furthermore, merely invoking the name of a potential defendant is not sufficient
to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334
(7th Cir. 1998). And in the case of those defendants in supervisory positions, the
doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted).
Plaintiff has not alleged that Brookman, Hart, Menard Personal Property
Supervisor (Unknown Party), Gordner, or Gee is “personally responsible for the
deprivation of a constitutional right,” and a defendant cannot be liable merely
because he supervised a person who caused a constitutional violation.
Id.
Plaintiff has similarly also not included any allegations against Sgt. Jones and C/O
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Dudzynski that claim they deprived him, and not Brian Coleman who is no longer
a party to this case, of a constitutional right.
Accordingly, Brookman, Hart, Menard Personal Property Supervisor
(Unknown Party), Gordner, Gee, Jones, and Dudzynski will be dismissed from
this action without prejudice.
Allegations in Plaintiff’s Complaint that are not clearly connected with any
defendant in the case caption and therefore should be considered dismissed
without prejudice include those involving the unsanitary and uncomfortable
conditions of his cells, the alleged denial of medical attention after he was injured
when his sink exploded, the alleged commissary “scam,” the allegation that his
property was never delivered from his previous place of confinement, the
allegation that grievance forms are not stocked, the allegation that there is a
culture of sexual harassment where PREA reports are routinely denied, and the
allegation that library access is “non-existent.” Any claims not addressed herein
should also be considered dismissed without prejudice from this action.
Count 9 – Deliberate Indifference of Moldenhauer
A prisoner raising a claim against a prison official for deliberate
indifference
to
the
prisoner’s
serious
medical
needs
must
satisfy
two
requirements. The first requirement compels the prisoner to satisfy an objective
standard: “[T]he deprivation alleged must be, objectively, ‘sufficiently serious[.]’”
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S.
294, 298 (1991)). The second requirement involves a subjective standard: “[A]
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prison official must have a ‘sufficiently culpable state of mind,’” one that amounts
to “‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501
U.S. at 297). Liability under the deliberate-indifference standard requires more
than negligence, gross negligence, or even recklessness; rather, it is satisfied only
by conduct that approaches intentional wrongdoing, i.e., “something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm
will result.” Farmer, 511 U.S. at 835.
Plaintiff has satisfied the objective standard, at least at this stage, given his
allegations that he suffers from severe debilitating migraines and seizures when
they are not properly treated. With respect to the subjective standard, however,
Plaintiff’s allegations specifically related to Moldenhauer’s actions are limited.
Plaintiff claims Moldenhauer changed his medication after Plaintiff had been
deprived of medication and misled about it being on order by an unspecified
nurse practitioner. Plaintiff does not allege that this medication change negatively
affected him in any way, nor does he provide sufficient information that might
show that such a change constituted anything approaching deliberate indifference,
particularly because the Eighth Amendment does not give prisoners entitlement to
“demand specific care” or “the best care possible,” but only requires “reasonable
measures to meet a substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d
262, 267 (7th Cir. 1997); see also Gallo v. Sood, 651 F. App’x 529, 533 (7th Cir.
June 1, 2016) (claim focusing on failure to give prisoner’s favored medication
over medication prescribed by doctor “amounts to a disagreement over treatment,
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which is insufficient to show deliberate indifference.”).
For the foregoing reasons, Count 9 will be dismissed without prejudice.
Count 10 – Deliberate Indifference of Lashbrook and Carter
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. June 5, 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)). “An 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 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 alleges that both Lashbrook and Carter were “personally informed”
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that Plaintiff was being denied his migraine medication, but failed to act to
remedy the situation and denied his grievance as a non-emergency. Plaintiff also
alleges that during the time he was deprived of his medication, he experienced
three seizures.
These allegations are sufficient, if only just, to allege that
Lashbrook and Carter were aware of an ongoing constitutional deprivation and
failed to remedy it.
Count 10 will therefore proceed past threshold against
Lashbrook and Carter.
Count 11 – IDOC Grievance Denial
Plaintiff’s claim that IDOC has violated his rights by denying grievances
related to the unlawful acts alleged in his Complaint is incredibly vague and runs
afoul of the Twombly pleading standard. It also does not state a claim, generally,
because the mishandling of grievances states no claim where the defendant
“otherwise did not cause or participate in the underlying conduct.”
Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); Grieveson v. Anderson, 538 F.3d
763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007);
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). The Prison Litigation
Reform Act (“PLRA”) requires prisoners to exhaust all available administrative
remedies before filing a suit in federal court. 42 U.S.C. § 1997e(a). However,
administrative remedies are considered to be unavailable under the PLRA when
prison officials fail to respond to a prisoner’s grievances.
See Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002) (citations omitted). In addition,
“exhaustion is not required when the prison officials responsible for providing
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grievance forms refuse to give a prisoner the forms necessary to file an
administrative grievance.” Hill v. Snyder, 817 F.3d 1037, 1041 (7th Cir. 2016). A
plaintiff who can demonstrate the unavailability of administrative remedies is
relieved from the obligation to exhaust administrative remedies and can proceed
with his or her suit, so the denial of grievance forms and/or grievances is not
actionable. Lewis, 300 F.3d at 833.
Another flaw with Plaintiff’s claim against IDOC is that Plaintiff cannot
proceed with a claim for money damages against it because it is a state
government agency. The Supreme Court has long held that “neither a State nor
its officials acting in their official capacities are 'persons' under § 1983.” Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). See also Wynn v. Southward,
251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against states
in federal court for money damages); Billman v. Ind. Dep't of Corr., 56 F.3d 785,
788 (7th Cir. 1995) (state Department of Corrections is immune from suit by
virtue of Eleventh Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427
(7th Cir. 1991) (same); Santiago v. Lane, 894 F.2d 219, 220 n.3 (7th Cir. 1990)
(same). Because the Eleventh Amendment bars suits against the state in federal
court for money damages, Plaintiff's claims against the IDOC for money damages
must be dismissed.
Count 11 against IDOC will therefore be dismissed with prejudice.
Count 12 – IDOC and Wexford Conspiracy
Plaintiff asserts that IDOC and Wexford conspired together to cover abuse
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and save money in violation of his rights.
However, Plaintiff’s conclusion that
these defendants’ actions amounted to an unlawful conspiracy is not supported by
factual allegations. Claims of conspiracy necessarily require a certain amount of
factual underpinning to survive preliminary review. See Woodruff v. Mason, 542
F.3d 545, 551 (7th Cir. 2008) (quoting Massey v. Johnson, 457 F.3d 711, 716
(7th Cir. 2006)).
“To establish the existence of a conspiracy, a plaintiff must
demonstrate that the conspirators have an agreement to inflict injury or harm
upon him.” Sow v. Fortville Police Dept., 636 F.3d 293, 304-05 (7th Cir. 2011).
“The agreement may be inferred from circumstantial evidence, but only if there is
sufficient evidence that would permit a reasonable jury to conclude that a meeting
of the minds had occurred and that the parties had an understanding to achieve
the conspiracy’s objectives.” Id. at 305 (quoting Hernandez v. Joliet Police Dept.,
197 F.3d 256, 263 (7th Cir.1999)).
The Complaint contains no factual support for the idea that the defendants
had a meeting of the minds to harm Plaintiff. Instead, Plaintiff’s claim that the
defendants engaged in a conspiracy to cover abuse and save money rests solely on
his own conclusions. Conclusory legal statements such as Plaintiff sets forth in
his Complaint are insufficient to state a claim that survives review under § 1915A.
See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). As noted above, and as
an alternative reason supporting dismissal, Plaintiff cannot proceed on a claim for
money damages against IDOC.
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Further, to the extent Plaintiff seeks for a claim of deliberate indifference to
medical needs against Wexford to underpin his conspiracy claim, he has not
alleged that Wexford maintained a policy that caused any of the alleged
deprivations. 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).
Plaintiff has not alleged that any of the individual defendants either acted or failed
to act as a result of an official policy espoused by Wexford. Therefore, Plaintiff
cannot maintain a deliberate indifference claim against Wexford.
For these reasons, Count 12 shall be dismissed for failure to state a claim
upon which relief may be granted. Out of an abundance of caution, this dismissal
shall be without prejudice.
Disposition
IT IS HEREBY ORDERED that COUNTS 1, 2, 3, 4, 5, 6, 7, and 8 which
are unrelated to the other claims in this action, are SEVERED into a new case
against LINDENBERG (Counts 1 and 2), WASSON (Counts 3 and 6),
CORNSTOBBLE (Counts 3 and 6), TAYLOR (Counts 4, 5, and 6), INTEL
OFFICER (UNKNOWN PARTY # 2) (Count 7), and AFSCME (Count 8).
IT IS FURTHER ORDERED that Defendants LINDENBERG, WASSON,
CORNSTOBBLE, TAYLOR, INTEL OFFICER (UNKNOWN PARTY # 2), and
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AFSCME are TERMINATED from this action with prejudice.
The claims in the newly severed case shall be subject to screening pursuant
to 28 U.S.C. § 1915A after the new case number and judge assignment is made.
In the new case, the Clerk is DIRECTED to file the following documents:
This Memorandum and Order;
The Complaint (Doc. 1); and
Plaintiff’s motion to proceed in forma pauperis (Doc. 3).
Plaintiff will be responsible for an additional $350 filing fee in each
newly severed case. 1 No service shall be ordered in the severed cases until the §
1915A review is completed.
IT IS FURTHER ORDERED that COUNTS 9 and 12 are DISMISSED
without prejudice from this action for failure to state a claim upon which relief
can be granted.
IT IS FURTHER ORDERED that COUNT 11 is DISMISSED with prejudice
from this action as frivolous.
IT IS FURTHER ORDERED that Defendants MOLDENHAUER, ILLINOIS
DEPARTMENT OF CORRECTIONS, WEXFORD HEALTH, BROOKMAN, HART,
MENARD
PERSONAL
PROPERTY
SUPERVISOR
(UNKNOWN
PARTY),
GORDNER, GEE, JONES, and DUDZYNSKI are DISMISSED from this action
without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that the only claim remaining in this action
is Count 10 against LASHBROOK and CARTER.
1
Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is
also to be assessed in all civil actions, unless pauper status is granted.
18
Case 3:17-cv-00518-DRH-SCW Document 8 Filed 07/20/17 Page 19 of 21 Page ID #50
IT IS FURTHER ORDERED that COUNT 10 shall PROCEED against
LASHBROOK and CARTER.
IT IS FURTHER ORDERED that as to COUNT 10, the Clerk of Court shall
prepare for LASHBROOK and CARTER: (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 defendants’ place of
employment as identified by Plaintiff. If one of the defendants 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 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 defendants (or upon defense counsel once an
appearance is entered) a copy of every pleading or other document submitted for
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Case 3:17-cv-00518-DRH-SCW Document 8 Filed 07/20/17 Page 20 of 21 Page ID #51
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.
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.
Further, this entire
matter shall be REFERRED to a United States Magistrate Judge for disposition,
pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to
such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the
payment of costs under Section 1915, Plaintiff will be required to pay the full
amount of the costs, despite 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
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Case 3:17-cv-00518-DRH-SCW Document 8 Filed 07/20/17 Page 21 of 21 Page ID #52
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.
Digitally signed by
Judge David R.
Herndon
Date: 2017.07.19
16:52:37 -05'00'
DATED: July 19, 2017
United States District Judge
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