Morris v. Baldwin et al
Filing
15
MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 12/12/2017. (jaj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BARRY MORRIS,
Plaintiff,
vs.
Case No. 17 cv–1033 DRH
JOHN BALDWIN,
ILLINOIS DEPARTMENT OF
CORRECTIONS,
CHRIS BRADLEY,
JACQUELINE LASHBROOK,
FRANK LAWRANCE,
HOLLY HAWKINS,
GAIL WALLS,
CINDY MEYER,
ROBIN ROWOLD,
JOSH MILUER, and
WEXFORD HEALTH SOURCES
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Barry Morris, an inmate in Menard Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983,
The Americans with Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”).
Plaintiff seeks injunctive relief and damages. This case is now before the Court
for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, which
provides:
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(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
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 Amended Complaint and any supporting
exhibits, the Court finds it appropriate to exercise its authority under § 1915A;
portions of this action are subject to summary dismissal.
The Amended Complaint
Plaintiff originally filed suit in Case No. 17-cv-852-DRH with co-plaintiff
Scott Peters. After the Court warned Plaintiff about the difficulties of proceeding
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in concert with another inmate, Plaintiff informed the Court that he wished to
proceed separately, and these claims were severed into a new action on
September 26, 2017. (Doc. 1). Plaintiff was also granted leave to file an amended
complaint, which he did on October 4, 2017. (Doc. 11).
The Amended Complaint alleges that Plaintiff is being denied reasonable
accommodation under the ADA and the RA. (Doc. 11, p. 3). Plaintiff suffers from
a herniated disc and severe spinal stenosis, nerve damage in his right hand/arm,
which is also partially paralyzed, benign prostatic hyperplasia (an enlarged
prostate), and high blood pressure.
(Doc. 11, p. 14).
Plaintiff informed the
defendants about his disabilities via letters and grievances.
(Doc. 11, p. 3).
Plaintiff alleges that he was deprived of reasonable accommodations for his
disabilities, and access to prison activities and opportunities. (Doc. 11, p. 4).
Plaintiff also alleges that the refusal to accommodate his disability puts him at
substantial risk of serious harm, and thus, that Defendants are deliberately
indifferent. (Doc. 11, pp. 4-5). Menard is not ADA compliant, and is the only
facility in the state of Illinois that does not permit assistive-walking devices in
general population. (Doc. 11, p. 14).
Specifically, Plaintiff alleges that his disabilities allow him to use crutches,
but Menard as an institution does not permit the use of crutches unless an inmate
is confined to the health care unit.
(Doc. 11, p. 6).
Walking with crutches
provides Plaintiff with exercise that he is deprived of when confined to a
wheelchair. (Doc. 11, p. 17). The health care unit cannot house all the inmates
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that need crutches or other walking devices. (Doc. 11, pp. 6-7). Plaintiff was also
prohibited from attending night yard, meals in the cafeteria, and mental health
therapy. (Doc. 11, p. 7). The commissary is not ADA accessible, and Plaintiff
cannot attend because his wheelchair cannot fit.
Id. Plaintiff must order his
commissary items and accept or reject the entire order without substitutions,
even if certain items are unavailable. Id.
Plaintiff is allowed to attend yard, but once he reaches the yard, his
wheelchair is taken from him and he is forced to sit at a table for 3 hours. (Doc.
11, pp. 7-8).
Plaintiff has been told to call the tower if he needs to use the
restroom or the phone, but the tower has ignored his requests and told him they
won’t respond to him unless it’s an emergency. (Doc. 11, p. 8).
There is no ramp to the personal property building, so if Plaintiff attends,
he must carefully negotiate the 8-10 steps.
Id.
Plaintiff needs access to the
personal property building because his excess legal boxes are stored there. Id.
Plaintiff also cannot participate in programs at the school building because
it is located on the second floor. Id. The school has an elevator, but Plaintiff is
prohibited from using it. Id. Menard also has a program where it offers inmates
MP3 players with text capabilities, but Plaintiff cannot access the “sinc” machines
that make the music and texts available because they are only available at the gym
and commissary. Id.
Plaintiff also has nerve damage in his right arm/hand. (Doc. 11, p. 9). On
October 31, 2016, the medical director gave Plaintiff a medical permit requiring
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that prison staff use waist chains when transporting Plaintiff. Id. Plaintiff alleges
that Defendants disregarded this order and continued to use a box and chain set
on Plaintiff, causing more nerve damage to his right arm and hand. Id. Wexford
has further denied a recommendation to send Plaintiff out to a neurologist to
assess the damage.
Id.
Plaintiff alleges he sent an emergency grievance to
Lashbrook on August 19, 2017, and that she failed to respond to the grievance.
(Doc. 11, pp. 9-10).
Plaintiff alleges that Lashbrook, Miluer, and Meyers inflicted severe
emotional distress on Plaintiff when they told him he would be transferred. (Doc.
11, p. 10-11). Allegedly, on June 6, 2017, Miluer stopped Plaintiff and told him
that he had talked with the Warden and they agreed to transfer Plaintiff out of
Menard if he stopped writing grievances. (Doc. 11, p. 11). Plaintiff wrote several
letters to Miluer in June and July 2017, but all of those letters went unanswered.
Id.
On July 2, 2017, Dr. Baig stopped by Plaintiff’s cell and reiterated that
Plaintiff would be transferred soon. Id. Three days later on July 5, Plaintiff wrote
to Meyer and asked when he would be transferred, and Meyer told Plaintiff that he
had never been submitted for a transfer. Id. Meyer came by Plaintiff’s cell on
July 14, 2017 and told him that she would submit him for a medical transfer, but
told Plaintiff “don’t hold your breath.”
(Doc. 11, p. 12).
Meyer sent Plaintiff
correspondence on August 9, 2017 telling Plaintiff that he was denied transfer.
Id. Meyer later told Plaintiff that she did not put him in for a medical transfer
because she could not get health care services to sign off on it. Id.
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Plaintiff also alleges that he is exposed to unconstitutional conditions of
confinement. Specifically, he alleges that he was doubled up in a cell meant for a
single inmate. (Doc. 11, p. 17). He also alleges that the showers have black mold
and lack handrails or ADA shower chairs, the cells are not wheelchair accessible,
sinks and toilets are not wheelchair accessible, and that many of the buildings
lack ADA ramps. (Doc. 11, p. 18).
Plaintiff alleges that Menard has inadequate medical staffing, which has
caused medical passes to be cancelled. Id. Plaintiff has had to wait for medical
treatment. Id. Plaintiff further alleges that Defendants routinely ignored medical
orders and/or refused to respond to Plaintiff’s request for treatment for all of
Plaintiff’s medical conditions and accommodations. (Doc. 11, p. 16). Wexford
denied a referral to a neurologist for Plaintiff on August 9, 2017. Id. Plaintiff
wrote an emergency grievance to Lashbrook on August 9, 2017, and followed up
with two “status letters.” Id. No response was received. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 7 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 following claims survive threshold review:
Count 1 – IDOC, Baldwin, Bradley, Lashbrook, Lawrance, Miluer,
Meyer, Rowold, Hawkins, and Walls failed to provide reasonable
accommodation for Plaintiff’s disability in violation of the ADA and
RA;
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Count 2 – IDOC, Baldwin, Bradley, Lashbrook, Lawrance, Miluer,
Hawkins, Walls, and Wexford were deliberately indifferent to
Plaintiff’s request for accommodation and treatment of his
disabilities in violation of the Eighth Amendment;
Plaintiff has also attempted to bring other Counts, but for the reasons
elucidated below, these claims do not survive threshold review.
Count 3 – Defendants housed Plaintiff in unconstitutional conditions
of confinement in violation of the Eighth Amendment;
Count 4 – IDOC, Baldwin, Bradley, Lashbrook, Lawrance, Hawkins,
Walls, Miluer, Meyer, and Rowold intentionally inflicted emotional
distress upon Plaintiff in violation of Illinois state law by failing to
accommodate his disability;
Count 5 – Lashbrook, Miluer, and Meyer intentionally inflicted
emotional distress against Plaintiff in violation of state law when they
made untrue and misleading statements that Plaintiff would be
transferred out of Menard;
Count 6 – Lashbrook, Walls, Hawkins, and Wexford were
deliberately indifferent to the nerve damage in Plaintiff’s right
arm/hand in violation of the Eighth Amendment;
Count 7 – Defendants intentionally and willfully disregarded
Plaintiff’s disabilities in violation of the ADA and RA
As to Plaintiff’s Count 1, the Supreme Court has held that the ADA applies
to prisons. In Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998), the Supreme
Court held: “State prisons fall squarely within the statutory definition of ‘public
entity’. . . . The text of the ADA provides no basis for distinguishing these
programs, services, and activities from those provided by public entities that are
not prisons.” Id. at 210. The Court further held in U.S. v. Georgia, 546 U.S. 151
(2006), that an inmate may bring a private cause of action for damages pursuant
to Title II of the ADA i f the state actor’s conduct also violates the Eighth
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Amendment. A plaintiff’s inability to establish a constitutional violation forecloses
an ADA private cause of action. See Morris v. Kingston, 368 F. App’x 686 (7th
Cir. 2010).
However, the relief available to a plaintiff under the Rehabilitation Act is
coextensive.
Jaros v. Illinois Dep't of Corr., 684 F.3d 667, 671–72 (7th Cir.
2012); Compare 29 U.S.C. § 794A with 42 U.S.C. § 12117 (both incorporating 42
U.S.C. § 2000e–5 for private right of action); see Barnes v. Gorman, 536 U.S. 181,
189 & n. 3, (2002). And, with respect to this lawsuit, the analysis governing each
statute is the same except that the RA includes as an additional element the
receipt of federal funds, which all states accept for their prisons. See Cutter v.
Wilkinson, 544 U.S. 709, 716 n. 4,(2005); Gratzl v. Office of Chief Judges, 601
F.3d 674, 678 (7th Cir. 2010); Foley v. City of Lafayette, Ind., 359 F.3d 925, 928
(7th Cir. 2004); Ozlowski v. Henderson, 237 F.3d 837, 842 (7th Cir. 2001). The
RA, however, does not require the same sovereign immunity analysis or an
underlying constitutional violation to accord relief. Jaros, 684 F.3d at 672. (citing
Duran v. Town of Cicero, Ill., 653 F.3d 632, 639 (7th Cir. 2011) (plaintiffs may
have but one recovery); Calero–Cerezo v. United States Dep't of Justice, 355 F.3d
6, 11 n. 1 (1st Cir. 2004) (dismissal of ADA claim had no effect on scope of
remedy because Rehabilitation Act claim remained)).
To state a claim under the ADA or RA, a plaintiff must allege that (1) he is a
qualified person (2) with a disability and (3) the Department of Corrections
denied him access to a program or activity because of his disability. See 29 U.S.C.
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§ 705(2)(B); Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737, 746 (7th Cir.
2006); Foley, 359 F.3d at 928; Grzan v. Charter Hosp. of Nw. Ind., 104 F.3d 116,
119 (7th Cir. 1997).
Refusing to make reasonable accommodations is
tantamount to denying access; although the RA does not expressly require
accommodation, “the Supreme Court has located a duty to accommodate in the
statute generally.”
Wis. Cmty. Serv., 465 F.3d at 747; see also Alexander v.
Choate, 469 U.S. 287, 300–01(1985). Plaintiff must plead facts which plausibly
support each element of his claim. See Ashcroft v. Iqbal, 556 U.S. 662 (2009);
Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011).
Here Plaintiff has alleged that he suffers from a herniated disc and spinal
stenosis, and that his condition interferes with his ability to engage in daily
activities. Specifically he alleges that he needs crutches to walk, and that Menard
has denied him crutches in favor of providing him with a wheelchair instead. As a
result of the wheelchair, Plaintiff cannot access prison programing such as
education, technology resources, mental health resources, exercise, etc. on the
same terms as other inmates.
The Court finds that this facts state a claim
pursuant to the RA and ADA, and that Plaintiff shall be permitted to proceed on
this claim.
As an initial matter, however, all of the individually named defendants —
Lashbrook, Lawrance, Hawkins, Walls, Miluer, Meyer, and Rowold—must be
dismissed at this time.
Employees of the Department of Corrections are not
amenable to suit under the RA or the ADA. Jaros v. Illinois Dept. of Corrections,
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684 F.3d 667, 670 (7th Cir. 2012); see 29 U.S.C. § 794(b); 42 U.S.C. § 12131;
Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The only proper
defendant as to this claim is the Illinois Department of Corrections. The Court
notes that Plaintiff did not explicitly name IDOC in connection with this particular
claim, but Plaintiff did include IDOC in his caption and statement of claim.
Plaintiff also explicitly named John Baldwin, the Director of IDOC as a defendant
in his official capacity and a suit against Baldwin in his official capacity is a suit
against IDOC. The Court therefore finds it appropriate, as part of its duty to
construe pro-se pleadings broadly, to construe the Complaint as attempting to
state an ADA and RA claim against IDOC. But all of the individual defendants will
be dismissed with prejudice from Count 1.
Count 2, originally Count VI, alleges that certain defendants were
deliberately indifferent to Plaintiff’s serious medical needs by refusing to arrange
for his crutches or for a medical transfer.
Prison officials impose cruel and
unusual punishment in violation of the Eighth Amendment when they are
deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97,
104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016). In order to
state a claim for deliberate indifference to a serious medical need, an inmate must
show that he 1) suffered from an objectively serious medical condition; and 2)
that the defendant was deliberately indifferent to a risk of serious harm from that
condition. Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). An objectively
serious condition includes an ailment that has been “diagnosed by a physician as
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mandating treatment,” one that significantly affects an individual’s daily activities,
or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d
1364, 1373 (7th Cir. 1997).
The subjective element requires proof that the
defendant knew of facts from which he could infer that a substantial risk of
serious harm exists, and he must actually draw the inference. Zaya v. Sood, 836
F.3d 800, 804 (7th Cir. 2016) (citing Farmer v. Brennan, 511 U.S. 825, 837
(1994)).
Plaintiff has alleged that he suffers from a herniated disc and severe spinal
stenosis, benign prostatic hyperplasia, and high blood pressure. 1 At the pleading
stages, the Court will presume that these conditions constitute a serious medical
need.
Plaintiff has brought this claim against numerous Defendants. Throughout,
he alleges that the defendants ignored medical orders, failed to intervene to
ensure access to an assisted walking device, and failed to adequately treat his
chronic medical conditions, including denying a request to see a neurologist.
Regrettably, Plaintiff does not specifically identify any person who failed to take
these actions. After pursuing Plaintiff’s numerous exhibits, the Court has found
correspondence regarding Plaintiff’s issues between Plaintiff, Walls, Lashbrook,
Baldwin, and Hawkins. Plaintiff also submitted correspondence to Miluer as an
exhibit, but the subject of that correspondence is a transfer request, not medical
care, and so it is irrelevant to the claims in Count 2.
1
Based on the
Plaintiff’s additional claims regarding nerve damage and pain in his right arm are encompassed in Count
7.
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correspondence detailing Plaintiff’s medical condition to Walls, Lashbrook,
Baldwin, and Hawkins, the Court finds that Plaintiff has made a plausible
allegation against those individuals that they were notice of his serious medical
needs and deliberately chose not to act in response to Plaintiff’s complaints.
Plaintiff has not made a plausible allegation that Bradley, Lawrance, or Miluer
were on adequate notice of his serious medical need, and so those individuals will
be dismissed without prejudice from Count 2. Should Plaintiff have additional
facts tending to show that Bradley, Lawrance or Miluer were deliberately
indifferent to his herniated disc, spinal stenosis, benign prostatic hyperplasia, and
high blood pressure, he may submit an amended complaint.
Plaintiff has also named IDOC and Wexford as Defendants in this Count.
IDOC is not a proper defendant in a claim under § 1983 because it is a state
government agency. The Supreme Court has 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 218, 220 n. 3 (7th Cir. 1990)
(same). For that reason, IDOC will be dismissed with prejudice from this claim.
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In contrast, the claim against Wexford survives. Plaintiff has alleged that
there was a policy or custom of refusing to follow medical orders or secure
treatment.
Normally, a private corporation is shielded from vicarious liability
under § 1983. However, Wexford is presumed to act under color of state law, and
is thus treated as though it were a municipal entity. Jackson v. Ill. Medi–Car,
Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002).
To state a claim against a
municipality, a plaintiff must demonstrate that the wrongdoers acted pursuant to
an unconstitutional policy or custom, Whiting v. Wexford Health Sources, Inc.,
839 F.3d 658, 664 (7th Cir. 2016); Shields v. Ill Dep’t of Corr., 746 F.3d 782, 790
(7th Cir. 2014); Perez v. Fenoglio, 792 F.3d 768, 780 & n. 5 (7th Cir. 2015), and
that the policy was the moving force behind the constitutional violation. Gable v.
City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002) (quoting Monell v. Dep't of
Social Servs., 436 U.S. 658, 691 (1978)). Although Plaintiff’s allegations are fairly
vague, he has alleged that employees acted pursuant to a policy or custom of not
following previously issued medical orders and that he was thereby harmed.
Count 2 shall therefore proceed against Wexford as well on this ground. Plaintiff
has also alleged that Wexford had a policy of inadequate medical staffing at
Menard and that he had medical passes cancelled as a result of staffing issues,
causing him to wait for medical treatment. However, he has not explained how
the delays harmed him. Without an allegation of harm, the claim fails. Count 2
will proceed as to Wexford only on the theory that Wexford has a policy or custom
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of disregarding or ignoring prior medical orders for Plaintiff’s assistive walking
device.
In summary, Count 2 proceeds against Wexford, Walls, Lashbrook,
Baldwin, and Hawkins.
IDOC is dismissed from this count with prejudice.
Bradley, Lawrance, and Miluer are dismissed without prejudice.
All of Plaintiff’s other claims must be dismissed at this time. In Count 3,
Plaintiff raises his conditions of confinement.
The Eighth Amendment can be
violated by conditions of confinement in a jail or prison when (1) there is a
deprivation that is, from an objective standpoint, sufficiently serious that it results
“in the denial of ‘the minimal civilized measure of life's necessities,’ ” and (2)
where prison officials are deliberately indifferent to this state of affairs. Farmer v.
Brennan, 511 U.S. 825, 834 (1994); Gray v. Hardy, 826 F.3d 1000, 1005 (7th
Cir. 2016).
Prisons must have adequate ventilation, sanitation, bedding, and
hygiene products. Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987).
Prison officials demonstrate deliberate indifference when they “know[] of
and disregard[] an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn . . . and he must also
draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Here, Plaintiff has alleged that he was confined in a cell that was too small.
He has also alleged that the showers were moldy, and that many of the bathroom
and shower facilities lacked grab bars and were otherwise not ADA accessible. It
is likely that Plaintiff has adequately alleged that, under a totality of the
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circumstances analysis, he was subjected to unconstitutional conditions of
confinement.
generally.
However, Plaintiff made his allegations against the defendants
He has not identified any single defendant in connection with this
claim, nor has he alleged that he told any of the named defendants about the
conditions of confinement. The reason that plaintiffs, even those proceeding pro
se, for whom the Court is required to liberally construe complaints, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), are required to associate specific
defendants with specific claims is so these defendants are put on notice of the
claims brought against them and so they can properly answer the complaint.
Plaintiff’s allegations in this regard are deficient.
Count 3 will be dismissed
without prejudice for failure to state a claim because Plaintiff has failed to allege
that any specific defendant had knowledge of his conditions of confinement.
Plaintiff is free to submit an amended complaint re-raising this issue.
Count 4 is made pursuant to Illinois state law, but once again, Plaintiff has
failed to state a claim. Under Illinois law, a plaintiff claiming intentional infliction
of emotional distress (“IIED”) must demonstrate that the defendant intentionally
or recklessly engaged in “extreme and outrageous conduct” that resulted in severe
emotional distress. Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1030 (7th
Cir. 2006); see Lopez v. City of Chi., 464 F.3d 711, 720 (7th Cir. 2006). The tort
has three components: (1) the conduct involved must be truly extreme and
outrageous; (2) the actor must either intend that his conduct inflict severe
emotional distress, or know that there is at least a high probability that his
15
conduct will cause severe emotional distress; and (3) the conduct must in fact
cause severe emotional distress. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill.
1988). To be actionable, the defendant's conduct “must go beyond all bounds of
decency and be considered intolerable in a civilized community.”
Honaker v.
Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing Kolegas v. Heftel Broad. Corp.,
607 N.E.2d 201, 211 (Ill. 1992); Campbell v. A.C. Equip. Servs. Corp., Inc., 610
N.E. 2d 745, 749 (Ill. App. 1993)). Whether conduct is extreme and outrageous is
judged by an objective standard, based on the facts of the particular case.
Honaker, 256 F.3d at 490.
It is doubtful that Plaintiff has adequately pleaded the first element because
his allegations would apply to any wheelchair-bound inmate at Menard, and the
Court is not prepared to say at this time that all such inmates have a valid IIED
claim. However, even if Plaintiff did meet the first element, he has not adequately
pleaded the second element.
Although Plaintiff has alleged generally that
Defendants have acted intentionally, Plaintiff has not alleged that he has been
deprived of a walking aid in favor of a wheelchair because the defendants have
intended to deprive him of services or programs. In fact, he has alleged that when
he grieved this issue, he has gotten the response that the policy against assisted
walking devices is for the safety and security of the institution.
Plaintiff has
alleged that he himself does not pose a safety and security threat, but he has
acknowledged the existence of the policy. If Defendants are acting pursuant to an
official policy, regardless of whether the policy itself is valid, they cannot be said
16
to act out of an intent to inflict harm on Plaintiff. Plaintiff has failed to state a
claim in Count 4, and this claim will be dismissed without prejudice.
Count 5 also fails. Plaintiff has alleged that Lashbrook, Miluer, and Meyer
intentionally inflicted emotional distress by promising Plaintiff a transfer that
never occurred. Plaintiff has not met the first element of the standard here. A
defendant’s conduct will be extreme and outrageous when it exceeds all decent
bounds, that is, when civilized people would find the conduct intolerable.
Swearnigen–El v. Cook County Sheriff’s Dept., 602 F.3d 852, 864 (7th Cir. 2010)
(quoting Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992)); see Fox
v. Hayes, 600 F.3d 819, 842 (7th Cir. 2010). In determining whether conduct
meets the extreme and outrageous standard, courts consider three main factors:
(1) the power the defendant has over the plaintiff; (2) whether the defendant had a
reasonably legitimate objective; and (3) the defendant’s awareness of the plaintiff’s
susceptibility to emotional distress. Franciski v. Univ. of Chi. Hosp., 338 F.3d
765, 769 (7th Cir. 2003) (citing McGrath v. Fahey, 533 N.E.2d 806, 811 (Ill.
1998)). The Illinois Supreme Court has explained that conduct is extreme and
outrageous when an average member of the community would exclaim
“Outrageous!” upon hearing the story. Doe v. Calumet City, 641 N.E.2d 498, 507
(Ill.1994) (quoting Restatement (Second) of Torts § 46, cmt. D, at 73 (1965)). The
tort does not cover “mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Honaker v. Smith, 256 F.3d 477, 490 (7th Cir.
2001) (citing McGrath v. Fahey, 533 N.E.3d 806, 809 (Ill. 1988)).
17
Here, Plaintiff’s allegations do not describe extreme or outrageous conduct.
Plaintiff alleges that Miluer said he would submit Plaintiff for a transfer but then
failed to do so. While that may have been frustrating for Plaintiff, it does not rise
to the level of extreme and outrageous conduct. In the first instance, Miluer never
had the authority to unilaterally transfer Plaintiff; the Illinois Administrative Code
requires that all administrative transfers be reviewed and approved by the
Director. 20 Ill. Adm. Code 503.120. The process also requires the involvement
of a Clinical Services staff member, the Assignment Officer, and the Chief
Administrative Officer. 20 Ill. Adm. Code. 503.130. At most, all Miluer could
have offered to do was recommend Plaintiff for a transfer. That means that there
was always a possibility that the transfer would not happen.
The failure of a
transfer to occur therefore is not an extreme or outrageous incident—it is a
normal incident of prison life.
This conclusion is borne out by the cases that have found extreme or
outrageous conduct; the common thread in those cases is that the conduct usually
deprives an individual of life’s necessities or involves an affront to their dignity.
See Lopez v. City of Chicago, 464 F.3d 711, 720-21 (7th Cir. 2006) (detainee had
viable IIED claim where he alleged that he was chained to a wall for 4 days and
only received food and drink once during that time period); Honaker v. Smith,
256 F.3d 477, 492-93 (7th Cir. 2001) (setting a fire to burn someone’s house
down would constitute “extreme and outrageous” conduct); Williams v. Erickson,
962 F.Supp.2d 1038, 1043 (N.D. Ill. 2013) (inmate stated viable IIED claim where
18
he alleged that nurse failed to assist him in changing his colostomy bag, causing
him to lay in his own feces for 4 hours).
Failing to submit a prisoner for a
transfer request does not come close to the circumstances where other courts
have found IIED. The conduct is routine, not outrageous.
Plaintiff has even less of a case against Meyer. Plaintiff concedes that Meyer
actually did submit him for a transfer request, but that the transfer request was
ultimately denied. Plaintiff has not alleged that Meyer acted to get his transfer
denied. The basis of his claim appears to be that Meyer was lying when she said
that she would submit him for a transfer, but Plaintiff concedes and his exhibits
establish that Meyer did put him in for an administrative transfer. Plaintiff also
alleges that Meyer told him that he would be submitted for a medical transfer,
then
actually
submitted
him
for
an
administrative
transfer,
and
then
inconsistently told him that medical would not support the medical transfer
request. Nothing in these facts establishes that Meyer’s conduct was extreme or
outrageous. Again, Plaintiff may find the denial of his transfer frustrating, but as
discussed above, the process was not in Meyer’s complete control and the denial
of transfer requests is a typical incident of prison life. Plaintiff has not stated a
claim for IIED against Meyer.
Plaintiff has also named Lashbrook in connection with this count, although
the factual basis for Plaintiff’s claim against Lashbrook is not clear. Lashbrook
certainly would have been involved in the transfer request because the
Administrative Code requires the Chief Administrative Officer’s approval, but
19
Plaintiff has not alleged that she deliberately denied the request to inflict
emotional distress upon him. Plaintiff alleges that Miluer talked with a warden
who agreed to transfer Plaintiff, but then affirmatively states that he does not
know which warden Miluer was referring to. That allegation cannot be basis of
liability against Lashbrook because Plaintiff has only alleged that he assumed that
Miluer meant Lashbrook. Even so, because Plaintiff has not adequately stated a
claim based on either of the alleged promises to transfer, the claim fails against
Lashbrook as well.
The claim in Count 7 is duplicative of the claim already pending in Case
No. 17-cv-0456-DRH-RJD (“17-456”).
Plaintiff filed that suit on May 2, 2017.
(17-456, Doc. 5). The Court found that Plaintiff had stated a claim for deliberate
indifference by ignoring Plaintiffs need for medical restraints and/or waist chains
as a result of a right arm injury against Defendants Baldwin, Lashbrook,
Lawrence, Hawkins, Walls, Hughes, and Meyer. (17-456, Doc. 7). Likewise, here
Plaintiff is attempting to bring a claim for regarding the prison’s treatment of
nerve damage in his right arm and hand against Lashbrook, Walls, Hawkins, and
Wexford. He specifically makes the same allegations regarding the use of box and
chain sets up him present in case 17-456, and the defendants are identical.
Principles of sound judicial administration prohibit Plaintiff from pursuing his
claims in duplicative lawsuits, and so the Court will dismiss this count from this
suit. Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993) (quoting
Colorado River Water Conservation District v. United States, 424 U.S. 800, 817
20
(1976)).
The Court notes that it is possible that the allegation here may be
broader than the allegation in Case No. 17-456, as Plaintiff references an August
9, 2017 grievance, but given the related nature of the claims, Plaintiff’s best
course of action would be to file an amended complaint in Case No. 17-456
raising the additional facts he seeks to present here. Count 7 will be dismissed
from this case without prejudice for reasons of sound judicial administration.
Finally, Count 8, which was originally Count V and VIII in the Complaint
will be dismissed as duplicative of Count 1. As originally pleaded, Count V is for
“Violation of the Rehabilitation Act Against Defendants IDOC, Baldwin, Bradley,
Lashbrook, Lawrance, Hawkins, Walls, Miluer, Meyer, and Rowold violation of
Americans with Disabilities and Count VIII is for “failure to provide the basic
necessary and reasonable accommodations [sic] for Mr. Morris ADA Disabilities
Against the Defendant(s) in the above captioned case.”
(Doc. 11, pp. 14,17).
These legal theory are encompassed by the ADA/RA claim that the Court has
ordered to proceed in Count 1. Allowing separate claims to proceed would be
duplicative, and so Count 8 will be dismissed.
As a corollary matter, Plaintiff has named all of the defendants in their
individual and official capacities. Those individuals are not “persons” in their
official capacities under § 1983 for the purposes of this suit. Plaintiff can only
bring claims against individuals that were personally involved in the deprivation
of which he complains. There is no supervisory liability in a § 1983 action; thus
to be held individually liable, a defendant must be “‘personally responsible for the
21
deprivation of a constitutional right.’” Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir.
2001). The only time it is appropriate to name a defendant in his or her official
capacity is when a plaintiff seeks injunctive relief. Gonzalez v. Feinerman, 663
F.3d 311, 315 (7th Cir. 2011). In that case, a plaintiff need not allege any specific
involvement and it is irrelevant whether the party participated in the alleged
violations.
Id. (citing Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995);
Ogden v. United States, 758 F.2d 1168, 1177 (7th Cir. 1985)).
Plaintiff has
claims for injunctive relief against IDOC, John Baldwin in his official capacity as
the Director of IDOC, and Lashbrook in her official capacity as Warden of
Menard. To the extent that he attempts to hold any other Defendant liable based
on their supervisory position, those claims are dismissed, and Plaintiff’s claims
against all other defendants proceed in their individual capacity only.
Pending Motions
Plaintiff’s Motion for Recruitment of Counsel and Motion to Certify Class
will be referred to a United States Magistrate Judge for disposition.
(Doc. 8)
(Doc. 12).
Plaintiff included a motion for a TRO/Preliminary injunction with his
complaint. The Court denied Plaintiff’s request for a TRO on December 12, 2017,
(Doc. 14) but his request for a preliminary injunction remains pending and is also
referred to a United States Magistrate Judge for disposition. (Doc. 13).
Disposition
22
IT IS HEREBY ORDERED that Counts 1 and 2 survive threshold review
against Defendants IDOC, Baldwin, Wexford, Walls, Lashbrook and Hawkins.
Count 3 is DISMISSED without prejudice for failure to associate a defendant
with Plaintiff’s claims. Counts 4 and 5 are DISMISSED without prejudice for
failure to state a claim. Counts 6 and 7 are DISMISSED without prejudice as
duplicative.
Defendants Bradley, Lawrance, Meyer, Rowold, and Miluer are
DISMISSED without prejudice.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants
IDOC, Baldwin, Wexford, Walls, Lashbrook, and Hawkins: (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.
IT IS FURTHER ORDERED that, 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
23
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.
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 is REFERRED to a United States Magistrate
Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), should all the parties consent to such a referral.
IT IS FURTHER ORDERED that 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, notwithstanding that his
application to proceed in forma pauperis has been granted. See 28 U.S.C. §
1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney
were deemed to have entered into a stipulation that the recovery, if any, secured
in the action shall be paid to the Clerk of the Court, who shall pay therefrom all
unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1)
24
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).
Judge Herndon
2017.12.12
14:19:37 -06'00'
IT IS SO ORDERED.
United States District Judge
25
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