Johnson v. Wexford Health Care Services, Inc. et al

Filing 8

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
ROBERT N. JOHNSON,
#N-27711,
Plaintiff,
vs.
WEXFORD HEALTH CARE
SERVICES, INC.,
PINCKNEYVILLE CORRECTIONAL
CENTER,
MR. BALDWIN,
SHERRY BENTON,
JOHN/JANE DOE,
KAREN JAIMET,
CHRISTINE BROWN,
DOCTOR SCOTT,
JOHN DOE,
NURSE PRACTITIONER BOB,
ANGEL RECTOR,
JANE DOE,
NURSE LODDIE,
MARSHA HILL,
DAN,
JANE DOE,
LARUE LOVE,
THOMPSON,
SERGEANT JOHNSON,
JOHN DOE,
C/O GIBSON,
C/O FERNANDEZ,
C/O WILLIAMS,
JOHN DOE,
CAROL A. MCBRIDE,
CHARLES W. HECK,
MARKUS MYERS,
B. LIND,
LT. FRANK, and
D. FLATT,

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Case No. 17 cv–1308 DRH

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Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Robert Johnson, an inmate in Pinckneyville Correctional Center
(“Pinckneyville”), brings this action pursuant to 42 U.S.C. § 1983 for deprivations
of his constitutional rights. In his Complaint, Plaintiff claims the defendants have
shown deliberate indifference to his medical needs in violation of the Eighth
Amendment and violated his rights under the Americans with Disabilities and
Rehabilitation Acts, among other things. (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

2

fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross
“the line between possibility and plausibility.” Id. at 557. At this juncture, the
factual allegations of the pro se complaint are to be liberally construed.

See

Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations 1:

in

retaliation for Plaintiff’s many grievances, defendants violated the ADA 504/Design
Guide for prison wheelchair and ADA cell-space by illegally doubling up
Pinckneyville’s two-person wheelchair/physically challenged cells with sets of four,
high aggression, general population, non-physically challenged inmates. (Doc. 1,
p. 3).

“IDOC and defendants conspiratorially and deliberately instigated and

permitted the said non-physically challenged to proliferate an ongoing failure to
protect reign of imminent danger in repeated extortion, theft, mayhem, and life
and limb fear upon [Plaintiff’s] life.” Id. Three gang members living in the illegal
four-man cell refused to relinquish the lower bunk, though Plaintiff had a lower
bunk permit and none of them did. Id. One of them also told Plaintiff he thought

1

The Court notes that Plaintiff’s allegations were at times difficult to decipher. The facts listed herein are those the
Court could glean from the Complaint without expanding upon Plaintiff’s allegations, as well as direct quotes from
the Complaint.

3

he recognized him and would check what his crimes were over the phone. Id. He
told Plaintiff that if he did what the inmate thought he did, that would “be killing
[him] real soon.” Id.
Plaintiff is 59 years old, “gravel-eye blind, master arm and hand dexterityimpaired,” has a heart condition and respiratory disorder, and suffers from
“excruciating” hip, leg, and back pain and continued deterioration of his hips and
back for which a wheelchair is required to function normally. Id. The Illinois
Department of Corrections (“IDOC”) has refused “to document felonious behavior
of aggravated assaults and battery visited unprovoked upon him” in the high
aggression general population of the prison for the past year and more, so Plaintiff
“has sought in a forced Hopkins Choice the only left 2-Man physically
challenged/wheelchair safety cell, in repeated disciplinary safety of punitive
solitary confinement at the concomitant loss of accumulating good time credits,
punitive segregation, not in excess of 6 months since IDOC has no protective
custody unit anywhere to accommodate physically challenged and wheelchairs.”
(Doc. 1, p. 4).
Pinckneyville staff seldom if ever considered cellmate compatibility, per
their “job guideline . . . ‘Rule 300.’” Id. This exacerbated the imminent danger
Plaintiff was in, as “he has [in] the past IDOC year been threatened 5 times to
walk himself or die” because he has “been singled out as the man who killed kids
in Chicago, Illinois.” Id.
Plaintiff has left arm and left leg numbness. Id.

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Plaintiff has a third grade

education and no family support. Id. Plaintiff has been denied access to the law
library by the law clerks. Id. He is unable to write his own grievances, which “has
thwarted and inhibited his legal litigation activities against the IDOC.” Id. Plaintiff
has no free legal assistance or knowledge in civil and criminal litigation matters.

Id.
From August 2016 to date, Plaintiff refused to cell in Pinckneyville’s general
population illegal four-man cells that Pinckneyville assigns him to for his many
medical issues, given the imminent danger he faced there. Id. Plaintiff did this
for his own safety and requested protective custody. (Doc. 1, p. 5). As a result of
Plaintiff’s grievances, however, IDOC and the defendants retaliated against him by
failing to grant Plaintiff’s protective custody requests and denying him “serious
urgent care for his continued deteriorating hips and back in which are slowly
becoming paralyzed with limited mobility level 10 pain excruciating.” Id. They
also disciplined Plaintiff with disciplinary reports for refusing general population
housing for which the adjustment committee found him guilty. Id. Each time,
they sanctioned him with 30 to 60 days solitary confinement and 30 to 45 days
loss of good time credit. Id.
IDOC “discriminated against Johnson by non-compliance with its own
IDOC policy sec. 501.310 ‘Requirements. Each maximum and minimum security
shall maintain an area of placement of committed persons in protective custody.’”

Id.

IDOC also ignored “statute 730 ILCS 5/5-7-4 Protected Persons, ‘the

department shall establish rules and regulations for the protection of *** every

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committed person.” (Doc. 1, pp. 5-6). It has ignored these rules to save costs at
the expense, suffering, and danger of all ADA physically challenged wheelchair
inmates. (Doc. 1, p. 6). IDOC has also refused to upgrade its maximum security
protective custody units with ADA certified ramps, grab rails, panic buttons,
working elevators, and/or doors wide enough for wheel chairs.

Id.

IDOC

therefore has “no protective custody processing for vulnerable ADAs.” Id.
IDOC and “all its wardenships” encourage inmates to assault and batter
other inmates, with the “widely known . . . knowledge” that they will be punished
in a lenient manner so as to save IDOC money.

(Doc. 1, p. 6).

They avoid

prosecuting inmates under 730 ILCS 5/3-6-5, which constitutes “statutory
felonious concealment of crimes” and “obstruction of justice.” Id.
Wexford Health Care Services, Inc. (“Wexford”) and IDOC officials at
Pinckneyville are deliberately indifferent to Plaintiff’s serious medical conditions,
including the “constant deterioration of his hips, back, and legs, in which his
serious urgent medical needs/claims have placed him in ‘imminent danger.’” Id.
Plaintiff has been placed in an ADA wheelchair cell, which is being illegally used to
house four men. (Doc. 1, p. 7). Plaintiff’s medical records of his hip and back
causing him excruciating pain and suffering have resulted in his being issued a
low bunk low gallery permit and pain medication that does not relieve his
discomfort. Id.
Plaintiff has sharp, stabbing relentless attacks of pain that cause him to
pass out, uncontrollable muscle spasms, and zero mobility without the assistance

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of a wheelchair. Id. Plaintiff has headaches, and he cannot function normally
with respect to hygiene, putting on clothing, and eating. Id. Plaintiff has trouble
holding food down due to nausea. Id. He cannot sleep, has “no comfort at all,”
and he spends “relentless hours in sitting position in fear that slightest wrong
move will cause abnormal violent involuntary contraction of muscle convulsions,
which started in 2009 but has been denied urgent medical attention since August
2016” in Pinckneyville by HCU Administrator Christine Brown, Nurse Practitioner
Dr. Bob, Dr. Scott, Dr. Tim PA, Dr. Butalid, Dr. John Doe, Dr. John Doe, Dr.
John Doe, Nurse Practitioner Rector, and Physical Therapist Dr. Dan.

Id.

Plaintiff received “no follow ups by any health care personnel.” Id.
“HCU Rule of thumb” is for inmates “to request sick call three times [and]
pay $5.00 each time before [the] nurse decides to all[ow] [a] medical issue to be
examined by [a] doctor.” Id. There is “no medication refill without sick call $5.00
co-pay” and inmates “wait 30 to 60 days before medication is refilled.” Id. There
is “nurse neglect by not recording inmate medical complaints/symptoms, refusal
to schedule inmate for doctor appointments, et cetera.” Id.
In 2016, Dr. Scott examined Plaintiff for “symptoms of burning, throbbing,
shooting, unending pain to [his] hips, spine, and lower back with worsening loss
of dexterity in the side of his body that had no end to the pain.” Id. Dr. Scott
referred Johnson to see an orthopedic specialist, but was soon no longer a doctor
at Pinckneyville. Id. Each time Plaintiff inquires about his referral, he is told
there is “no record of such doctor referral in his medical files,” “no money to

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afford a referral to an outside furlough,” and Pinckneyville’s Wexford staff doctors
are specialists in orthopedic bone trauma and disease. (Doc. 1, pp. 7-8).
Plaintiff’s sick call slips are not being answered, and he is repeatedly told
by nurses that Pinckneyville does not have a permanent doctor. (Doc. 1, p. 8).
Dr. Scott told Plaintiff that if he did not use his back, hips, and spine, he would
eventually lose them. Id. Plaintiff’s symptoms are worsening. Id. Plaintiff was
forced to take himself to segregation to avoid assault from his three “gang
member” cellmates, each of whom “had a knife-like shank of some kind,” when
they told him they would kill him and that he “might as well walk [himself] to
segregation by now.” Id. Plaintiff requested protective custody, but Pinckneyville
interpreted Plaintiff’s actions as “disobeying a direct order while disrupting the
safety and security of this institution.” Id.
Plaintiff claims that there is a “systemic custom and usage, institutionalized
from one directorship to another, one wardenship to another, obsessed with
retaliation in a whole entrenched staff schematic against complaining inmates”
who file grievances about the wrongdoing of a director or warden who are then
“systematically” labeled problem inmates to prevent them from complaining
further. (Doc. 1, p. 9).
Plaintiff further claims that isolated confinement, under 730 ULCS 5/3-8-7,
should not be used against vulnerable populations, should be restricted, and can
foster psychological trauma, psychiatric disorders, or serious long-term brain
damage. Id. He alleges that vulnerable populations include those 55 years of age

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or older and individuals who are disabled with a mental illness. Id. Plaintiff also
claims that individuals committed to protective custody should have comparable
opportunities for activities, movement, and social interaction to those in the
general population, but those opportunities are not provided in Pinckneyville’s
segregation units.

Id. Plaintiff seeks monetary damages and a preliminary

injunction directing medical care to be provided to him, for him to be placed in
protective custody, and for the defendants to cease sanctioning him with
unfounded disciplinary reports. (Doc. 1, pp. 9-10).
Discussion
Before outlining Plaintiff’s claims, the Court finds it appropriate to address
Plaintiff’s failure to include specific allegations against Baldwin, Benton, Jaimet,
John/Jane Doe (Deputy Director), Jane Doe (Nurses 1-6), Loddie, Hill, Jane Doe
(physical therapist), Love, Thompson, Johnson, John Doe (sergeant), Gibson,
Fernandez, Williams, John Doe (C/O 1-6), McBride, Lind, Frank, and Flatt 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

9

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). Because they are not included in the
statement of claim, Baldwin (individual capacity only), Benton, Jaimet (individual
capacity only), John/Jane Doe (Deputy Director), Jane Doe (Nurses 1-6), Loddie,
Hill, Jane Doe (physical therapist), Love, Thompson, Johnson, John Doe
(sergeant), Gibson, Fernandez, Williams, John Doe (C/O 1-6), McBride, Lind,
Frank, and Flatt will be dismissed from this action without prejudice.
Further, Plaintiff has named the Pinckneyville Correctional Center, a
division of the Illinois Department of Corrections (“IDOC”), as a defendant.
However, no matter what relief Plaintiff seeks against Pinckneyville, his claims
against it are barred because IDOC, as a state agency, is not a “person” that may
be sued under § 1983, and neither are its divisions. Thomas v. Illinois, 697 F.3d
612, 613 (7th Cir. 2012) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58,
70–71 (1989)); see also 42 U.S .C. § 1983 (“Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper

10

proceeding for redress . . . .”). Though IDOC is an appropriate defendant for ADA
and/or

Rehabilitation

Act

claims,

the

Court

will

not

allow

Plaintiff’s

ADA/Rehabilitation Act claims to proceed against Pinckneyville. Instead, to the
extent Plaintiff has stated a viable ADA/Rehabilitation Act claim, the Court will
allow it to proceed against the relevant IDOC official(s) in his, her, or their official
capacities. See 2 U.S.C. § 12131(1)(b); Jaros v. Illinois Department of

Corrections, 684 F.3d 667, 670 (7th Cir. 2012) (the proper defendant to an ADA
claim is the relevant state department or agency; the proper defendant is the
agency or its director (in his official capacity)). Accordingly, Pinckneyville will be
dismissed from this action with prejudice.
Finally, to the extent Plaintiff sought to bring claims against individuals or
entities not included in the case caption, 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, 416 F.3d
551, 551–52 (7th Cir. 2005) (defendants must be “specif[ied] in the caption”).
Individuals mentioned in the Complaint but not included in the case caption or
list of defendants include: Dr. Butalid and Dr. Tim PA.
Moving to the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 9 counts. The parties and the Court will use these
designations in all future pleadings and orders, unless otherwise directed by a
judicial officer of this Court. The designation of these counts does not constitute
an opinion regarding their merit.

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Count 1 –

Defendants showed deliberate indifference to Plaintiff’s serious
medical needs involving deterioration of his hips, back, and
legs and pain and immobility associated therewith in violation
of the Eighth Amendment.

Count 2 –

Defendants retaliated against Plaintiff for filing grievances by
placing him in an overcrowded cell with violent inmates,
refusing his requests for protective custody, issuing
disciplinary reports against him, placing him in segregation,
and refusing to provide him with needed medical care, in
violation of the First Amendment.

Count 3 –

Defendants violated the Americans with Disabilities Act and/or
the Rehabilitation Act by using wheelchair designated twoperson cells as four-person cells and housing high-aggression,
general population inmates within them.

Count 4 –

Defendants violated the Americans with Disabilities Act and/or
the Rehabilitation Act by failing to maintain a protective
custody unit that can accommodate physically challenged and
wheelchair-bound inmates.

Count 5 –

Defendants violated Plaintiff’s due process rights by issuing
him disciplinary reports for his refusing to be housed in
general population and finding him guilty for those charges,
resulting in his placement in solitary confinement and his
losing of good-conduct credit.

Count 6 –

Defendants violated Plaintiff’s First Amendment right to access
the courts by denying him access to the law library and not
assisting him in legal matters.

Count 7 –

Defendants failed to protect Plaintiff in violation of the Eighth
Amendment by failing to grant his request for protective
custody when he was under threat from his cellmates.

Count 8 –

Defendants subject inmates to cruel and unusual punishment
by encouraging them to assault one another by maintaining a
policy under which inmates receive lenient punishment for
assaults and are often not prosecuted for the attacks.

Count 9 –

Defendants violated Plaintiff’s due process and equal
protection rights under article 1, section 2 of the Illinois
constitution.
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As discussed in more detail below, Counts 2, 4, and 5 will be allowed to
proceed past threshold. Any other intended claim that has not been recognized
by the Court is considered dismissed without prejudice as inadequately pleaded
under the Twombly pleading standard.
Count 1 – Deliberate Indifference to Medical Needs
The Eighth Amendment

to

the

United

States

Constitution

protects

prisoners from cruel and unusual punishment. See Berry v. Peterman, 604 F.3d
435 (7th Cir. 2010).

The Supreme Court has recognized that “deliberate

indifference to serious medical needs of prisoners” may constitute cruel and
unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see Erickson v.

Pardus, 551 U.S. 89, 94 (2006) (per curiam). To state a claim, a prisoner must
show that: (1) he suffered from an objectively serious medical need; and (2) state
officials acted with deliberate indifference to the prisoner’s medical need, which is
a

subjective

standard.

Farmer v. Brennan,

511

U.S.

825,

834

(1994);

Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).
Assuming Plaintiff has satisfied the objective standard, he has failed to
show that state officials acted with deliberate indifference to his medical needs.
Throughout his Complaint, Plaintiff uses the passive voice or refers to “the
defendants” or “IDOC officials,” claiming that these non-specific groups denied
him medical care or otherwise violated his rights. “Vague references to a group of
‘defendants,’ without specific allegations tying the individual defendants to the
alleged unconstitutional conduct, do not raise a genuine issue of material fact with
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respect to those defendants.” Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir.
2008) (citing See Alejo v. Heller, 328 F.3d 930, 936 (7th Cir. 2003) (finding
dismissal of named defendant proper where plaintiff failed to allege defendant’s
personal involvement in the alleged wrongdoings)).
Though Plaintiff specifically names Brown, Bob, several Dr. John Does,
Rector, and Dan in connection with his claim that he has been denied urgent
medical care, he has provided no information regarding how these individuals
may have been personally involved in denying him such care.

As previously

noted, merely invoking the name of a potential defendant is not sufficient to state
a claim against that individual, nor is making vague, unsupported statements
about them that are little more than legal conclusions. See Collins v. Kibort, 143
F.3d 331, 334 (7th Cir. 1998). Plaintiff has done no more than that with respect
to these defendants, so his claim will not proceed as against them.
Plaintiff includes more information about the actions of Dr. Scott. Other
than Scott’s inclusion in the laundry list of medical care providers that allegedly
“denied [him] urgent medical attention,” however, Scott’s actions appear to have
been entirely positive and helpful to Plaintiff.

(Doc. 1, p. 7).

Scott allegedly

examined Plaintiff and referred him to an orthopedic specialist. Soon thereafter,
Scott was no longer a doctor at Pinckneyville. Plaintiff’s allegations are therefore
insufficient to support a deliberate indifference claim against Scott.
Finally, with respect to Wexford, a corporation can be held liable for
deliberate indifference only if it had a policy or practice that caused the alleged

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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, and Count 1 shall also be dismissed against it.
Accordingly, Count 1 will be dismissed without prejudice for failure to state
a claim upon which relief may be granted.
Count 2 - Retaliation
Prison officials may not retaliate against inmates for filing grievances,
exercising First Amendment rights, 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). A “prisoner can state a claim
for retaliatory treatment by alleging a chronology of events from which retaliation
can be inferred.” Jellis v. Hulick, 422 F. App'x 548, 550 (7th Cir. 2011). However,
the Seventh Circuit has rejected the notion that prisoners are required to allege a
chronology of events at the pleading stage. See McElroy v. Lopac, 403 F.3d 855,
858 (7th Cir. 2005) (“we note that the district court required far too much of [the
prisoner] in the first place. Our recent cases have rejected any requirement that

15

an inmate allege a chronology of events in order to state a claim of retaliation
because such a requirement is contrary to the federal rule of notice pleading.”);

Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002) (prisoner need not
allege a chronology of events in order to state a claim for retaliation). In other
words, allegations pertaining to a chronology of events from which retaliation can
be inferred are sufficient but not required. “Instead, a plaintiff must allege only
enough to put the defendants on notice and enable them to respond.” McElroy, at
858. In this regard, certain defendants’ allegedly retaliatory conduct and
allegations regarding the constitutionally protected activity that motivated the
retaliatory conduct are sufficient. Id.
Plaintiff claims that the defendants retaliated against him for filing
grievances by placing him in an overcrowded cell with violent inmates, refusing
his requests for protective custody, issuing disciplinary reports against him,
placing him in segregation, and refusing to provide him with needed medical care.
Plaintiff attached an adjustment committee report to his Complaint that shows
that Defendants Myers and Heck subjected him to some of the allegedly retaliatory
actions, including segregation. (Doc. 1, p. 19). Plaintiff will therefore be able to
proceed with his retaliation claim as against these two defendants. Plaintiff does
not successfully associate any other defendants with this claim, however, under
the same reasoning as in Count 1.
Accordingly, Count 2 will proceed against Myers and Heck.
dismissed without prejudice as against all other defendants.

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It shall be

Count 3 – ADA/Rehabilitation Act
The ADA and Rehabilitation Act prohibit discrimination against qualified
individuals because of their physical or mental disability, including a failure to
accommodate a disability. Jaros v. Illinois Dep’t of Corrections, 684 F.3d 667,
671 (7th Cir. 2012). In order to make out a prima facie case of discrimination
under both the ADA and the Rehabilitation Act, a plaintiff must show: (1) that he
suffers from a disability as defined in the statutes, (2) that he is qualified to
participate in the program in question, and (3) that he was either excluded from
participating in or denied the benefit of that program based on his disability.

Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005). The Rehabilitation
Act requires that a plaintiff show that the program in which he was involved
received federal financial assistance. Id. at 810 n.2; see also 29 U.S.C. § 794(a).

Novak v. Bd. of Trustees of S. Ill. Univ., 777 F.3d 966, 974 (7th Cir. 2015).
The ADA applies to state prisons, and all such institutions receive federal
funds. Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206 (1998); Jaros, 684 F.3d at
667. Thus, the two statutory schemes are applicable to this situation. “Disability
includes the limitation of one or more major life activities, which include walking,
standing, bending, and caring for oneself.” Jaros, 684 F.3d at 672. Plaintiff has
deterioration of his hips and back that inhibits his movement without a
wheelchair, convulsions that prevent him from sleeping well, nausea that makes
him incapable of holding food down, and headaches. Due to these issues, he is in
extreme pain and cannot function normally with respect to hygiene, food, and

17

putting on clothing. The allegations in the Complaint therefore suggest that he
suffers from a disability as defined in the ADA and Rehabilitation Act.
Plaintiff has otherwise failed to state an actionable ADA and Rehabilitation
Act claim under Count 3. Plaintiff complains of his placement in “two-man cells”
meant for those in wheelchairs and with physical disabilities that are being used
to house four inmates, the majority of whom are violent general population
inmates. His only complaint about the cells specifically is that they are “illegal”
and “in violation of ADA 504/Design Guide.”

These are legal conclusions not

otherwise supported by facts in the Complaint. Plaintiff does not explain why
housing four men in his cell affects him specifically because of his disability.
Instead, Plaintiff focuses on the general threat his cellmates posed to him.
Prisoners do not have veto power over the identity of their cellmates, however.

Ricardo v. Rausch, 375 F.3d 521, 528 (7th Cir. 2004). Further, to the extent
Plaintiff seeks to hold any of the defendants liable for failing to protect him from
his cellmates, the Eighth Amendment, not the ADA and/or Rehabilitation Act,
would be a more appropriate basis for such a claim.
Count 3 will therefore be dismissed without prejudice for failure to state a
claim upon which relief may be granted.
Count 4 - ADA/Rehabilitation Act
Plaintiff claims there are no protective custody units that can accommodate
wheelchair-bound inmates.

He also claims that he has repeatedly requested

protective custody due to the danger he faces from his cellmates, but he has been

18

denied protective custody and instead disciplined and placed in segregation
because the protective custody cells will not accommodate him.

At this early

stage, the Court cannot say that these allegations are insufficient to state an ADA
and/or Rehabilitation Act claim.
Notably, the only proper defendant in a claim under the ADA or
Rehabilitation Act is the state agency (or a state official acting in his or her official
capacity). “[E]mployees of the Department of Corrections are not amenable to
suit under the Rehabilitation Act or the ADA. See 29 U.S.C. § 794(b); 42 U.S.C. §
12131.” Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 670 (7th Cir. 2012)
(additional citations omitted). All of the named defendants, other than Defendant
Baldwin in his official capacity as the Director of the Illinois Department of
Corrections and Defendant Jaimet in her official capacity as the Warden of
Pinckneyville, 2 will therefore be dismissed with prejudice from Count 4, as they
are not susceptible to these claims under the ADA or Rehabilitation Act. Count 4
shall proceed against Baldwin and Jaimet in their official capacities only.
Count 5 – Due Process
Plaintiff claims that his rights were violated by the defendants when he was
issued repeated disciplinary tickets for refusing housing in response to his
requests for protective custody. Plaintiff asserts that his being found guilty of
these tickets and sanctioned with solitary confinement and loss of good conduct

2

At this stage, the Court finds it appropriate to allow this claim to proceed against Director Baldwin in his official
capacity, as IDOC’s highest ranking official, and Warden Jaimet in her official capacity, because Plaintiff seeks
injunctive relief, and Pinckneyville’s warden will likely “be responsible for ensuring that any injunctive relief is
carried out.” Gonzalez v. Feinerman, 663 F.3d 311 (7th Cir. 2011).

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credit also violated his due process rights.
In Muhammad v. Close, 540 U.S. 749 (2004), the Supreme Court
recognized that some prisoner cases appear to straddle the line between what is
actionable under 42 U.S.C. § 1983, and what falls under the purview of habeas
corpus under 28 U.S.C. § 2254.
Challenges to the validity of any confinement or to particulars
affecting its duration are the province of habeas corpus, Preiser v.
Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439
(1973); requests for relief turning on circumstances of confinement
may be presented in a § 1983 action. Some cases are hybrids, with a
prisoner seeking relief unavailable in habeas, notably damages, but
on allegations that not only support a claim for recompense, but
imply the invalidity either of an underlying conviction or of a
particular ground for denying release short of serving the maximum
term of confinement.

Muhammad, 540 U.S. at 750–751.
Muhammad is premised upon two related decisions, Heck v. Humphrey,
512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997). In Heck, the
Supreme Court held that a Section 1983 claim for damages that “would
necessarily imply the invalidity of [a plaintiff's] conviction or sentence” is not a
cognizable claim until that conviction or sentence has been reversed, expunged,
invalidated, or called into question by a federal court's issuance of a writ of
habeas corpus. Id. at 486–87. In Edwards v. Balisok, 520 U.S. 641 (1997), the
Supreme Court held that claims that “necessarily imply the invalidity of the
deprivation of [an inmate's] good time credits” are not cognizable under Section
1983 unless the prison disciplinary decision has been invalidated, even though
the restoration of credits is not sought as a remedy. Id. at 646–48.
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Balisok is particularly instructive in this situation.

Here, there are no

specific defendants associated with Plaintiff’s due process claim in the statement
of claim.

However, Defendants Heck and Myers are listed as the Hearing

Committee on the only Adjustment Committee Final Summary Report attached to
the Complaint as an exhibit. See (Doc. 1, p. 19). Plaintiff was found guilty in this
hearing and disciplined with one-month segregation and revocation of threemonths of good conduct credit, which he at least implies was in retaliation for his
filing grievances. Id.
The good conduct credits revoked in this hearing directly associated with
Heck and Myers were restored on November 13, 2017, according to the
Disciplinary Reduction Notification Plaintiff includes as an exhibit to his
Complaint. See (Doc. 1, p. 20). Thus, the Court will not consider Plaintiff’s due
process claim to be entirely barred under the reasoning in Balisok. However, to
the extent Plaintiff seeks to challenge any hearings resulting in good conduct
credit revocations that have not been reversed, such a claim is not cognizable
until the revocations are invalidated via administrative remedy or habeas action.
Moving to the substance of Plaintiff’s due process claim, in Hanrahan v.

Lane, 747 F.2d 1137, 1140–41 (7th Cir. 1984), the Seventh Circuit held that the
filing of false disciplinary charges by a correctional officer does not state a
Fourteenth Amendment claim when the accused inmate is given a subsequent
hearing on those charges in which the inmate is afforded the procedural
protections outlined in Wolff v. McDonnell, 418 U.S. 539 (1974). The Seventh

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Circuit reasoned that prisoners have a right “to be free from arbitrary actions of
prison officials,”

Hanrahan, 747 F.2d at 1140, but determined that the

procedural protections outlined in Wolff provided the appropriate protection
against arbitrary actions taken by a correctional officer such as issuing the inmate
a fabricated conduct violation.
In the Complaint, Plaintiff implies that he was not provided the procedural
protections outlined in Wolff because he was found guilty by the adjustment
committee, Heck and Myers, in retaliation for his filing grievances.

Prison

disciplinary hearings satisfy procedural due process requirements where an
inmate is provided: (1) written notice of the charge against the prisoner twenty
four (24) hours prior to the hearing; (2) the right to appear in person before an
impartial

body;

(3)

the

right

to

call

witnesses

and

to

present

physical/documentary evidence, but only when doing so will not unduly jeopardize
the safety of the institution or correctional goals; and (4) a written statement of
the reasons for the action taken against the prisoner. See Wolff v. McDonnell, 418
U.S. 539, 563-69 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988).
Not only must the requirements of Wolff be satisfied, but the decision of the
disciplinary hearing board must be supported by “some evidence.” Black v. Lane,
22 F.3d 1395, 1402 (7th Cir. 1994). To determine whether this standard has
been met, courts must determine whether the decision of the hearing board has
some factual basis. Webb v. Anderson, 224 F.3d 649 (7th Cir. 2000). Even a

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meager amount of supporting evidence is sufficient to satisfy this inquiry.

Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).
Though this is a low standard, Plaintiff implies that it has not been met in
this case, because he was found guilty in retaliation for his filing grievances and at
least in part because there is no protective custody housing to accommodate his
disabilities. There is a presumption that administrative review boards have acted
properly in proceedings such as this one, and often claims such as this one are
dismissed in later stages of the proceedings for lack of support, see Higgason v.

Lemmon, 6 F. App'x 433, 435 (7th Cir. 2001) (inmate’s unsupported allegations
that prison disciplinary board was ordered to find inmate guilty was insufficient
to overcome presumption that board discharged duties properly); Snell v.

Jackson, No. 04–73883–DT, 2006 WL 212025, at *3–5 (E.D. Mich. Jan. 25,
2006). However daunting this presumption may be, it is a consideration for a
later time, as it is enough that Plaintiff sufficiently alleged that Heck and Myers, as
the adjustment hearing committee, acted improperly in causing him to be found
guilty. This is sufficient to create a question as to whether Heck and Myers acted
impermissibly in finding him guilty, and for this reason, this claim cannot be
dismissed at this time.
Counts 6, 7, and 8
Plaintiff does not successfully associate any defendants with his First
Amendment access to courts claim, his Eighth Amendment failure to protect
claim, or his Eighth Amendment cruel and unusual punishment claim under the

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same reasoning as in Count 1. Counts 6, 7, and 8 will therefore be dismissed
without prejudice for failure to state a claim upon which relief may be granted.
Count 9 – Illinois Constitution
Plaintiff also seeks to bring a claim under Article 1, Section 2 of the Illinois
Constitution. The Illinois Constitution does not guarantee rights in the same
manner as the United States Constitution—a provision of the Illinois Constitution
cannot be the basis of a lawsuit unless it contains self-executing language
establishing such a right. Bourbeau v. Pierce, No. 02-cv-1207, 2008 WL 370677,
at *6 (S.D. Ill. Feb. 11, 2008). For example, Article 1 Section 17 of the Illinois
Constitution says that its rights are enforceable without action by the General
Assembly, while Sections 2 and 5 of Article 1 contain no such language.

ILL.

CONST. art. I, §§ 2 & 5; Teverbaugh ex rel. Duncan v. Moore, 724 N.E.2d 225, 228
(Ill. Ct. App. 2000); Faulkner-King v. Wicks, 590 N.E.2d 511, 515 (Ill. App. 1992)
(recognizing that there is no private right of action for damages for violations of
Article I, Section 2), abrog. on other grounds by Blount v. Stroud, 904 N.E.2d 1
(Ill. 2009).
Because Plaintiff seeks to bring a claim under Section 2 of Article 1, which
does not support a private right of action for damages, Count 9 will be dismissed
with prejudice as legally frivolous.
Failure to Follow Policies
Throughout the Complaint, Plaintiff claims various IDOC policies and state
laws were not followed in violation of his rights. The Seventh Circuit Court of

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Appeals, however,
has consistently held that 42 U.S.C. § 1983 protects plaintiffs from
constitutional violations, not violations of state laws or, in this case,
departmental regulations and police practices. In other words, the
violation of police regulations or even a state law is completely
immaterial as to the question of whether a violation of the federal
constitution has been established.

Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (internal
quotations and citations omitted); see also Scott v. Edinburg, 346 F.3d 752, 760
(7th Cir. 2003). Accordingly, any claim based on a defendant’s failure to follow
IDOC policies or even state law is insufficient to maintain a claim under § 1983.
Pending Motions
Plaintiff has filed a Motion for Appointment of Counsel (Doc. 3) which is
REFERRED to a United States Magistrate Judge for a decision.
Plaintiff has filed a Motion for Preliminary Injunction, Motion for Protection
Order (Doc. 4) which is REFERRED to a United States Magistrate Judge for a
decision.
Disposition
IT IS HEREBY ORDERED that COUNTS 1, 3, 6, 7 and 8 are DISMISSED
without prejudice for failure to state a claim upon which relief may be granted as
against all defendants.
IT IS FURTHER ORDERED that COUNT 9 is DISMISSED with prejudice
as against all defendants as legally frivolous.
IT IS FURTHER ORDERED that COUNTS 2 and 5 shall PROCEED
against MYERS and HECK.
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IT IS FURTHER ORDERED that COUNT 4 shall PROCEED against
BALDWIN (official capacity only) and JAIMET (official capacity only).
IT IS FURTHER ORDERED that BALDWIN (individual capacity only),
BENTON, JAIMET (individual capacity only), JOHN/JANE DOE (Deputy
Director),

JANE DOE (Nurses 1-6), LODDIE, HILL, JANE DOE (physical

therapist), LOVE, THOMPSON, JOHNSON, JOHN DOE (sergeant), GIBSON,
FERNANDEZ, WILLIAMS, JOHN DOE (C/O 1-6), MCBRIDE, LIND, FRANK,
FLATT, WEXFORD HEALTH CARE SERVICES, INC., BROWN, BOB, JOHN
DOE (Doctors/MD 1-3), RECTOR, SCOTT, and DAN are dismissed without
prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that PINCKNEYVILLE CORRECTIONAL
CENTER is DISMISSED from this action with prejudice for the reasons stated
herein.
IT IS FURTHER ORDERED that as to COUNTS 2, 4, and 5, the Clerk of
Court shall prepare for MYERS, HECK, BALDWIN (official capacity only), and
JAIMET (official capacity only): (1) Form 5 (Notice of a Lawsuit and Request to
Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).
The Clerk is DIRECTED to mail these forms, a copy of the Complaint, and this
Memorandum and Order to each defendant’s place of employment as identified by
Plaintiff. If the defendant fails to sign and return the Waiver of Service of
Summons (Form 6) to the Clerk within 30 days from the date the forms were
sent, the Clerk shall take appropriate steps to effect formal service on that
26

defendant, and the Court will require that 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.
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, including for a decision
on Plaintiff’s Motion for Preliminary Injunction, Motion for Protection Order (Doc.
4). 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).

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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.

Judge Herndon
2017.12.12
13:57:01 -06'00'
UNITED STATES DISTRICT JUDGE

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