Wyma v. State of Illinois et al

Filing 4

IT IS HEREBY ORDERED that COUNT 1, which is unrelated to the other claim in this action, is SEVERED into a new case against the ILLINOIS DEPARTMENT OF CORRECTIONS and the STATE OF ILLINOIS. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file a First Amended Complaint, stating any facts which may exist to support a cognizable § 1983 claim, within 28 days of the entry of this Order (on or before February 26, 2018). Should Plaintiff fail to file his F irst Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to complywith a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 2/26/2018). Signed by Judge David R. Herndon on 1/22/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER WYMA,
#Y-20504,
Plaintiff,
vs.
STATE OF ILLINOIS, and
IDOC,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 18 cv–092 DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Christopher Wyma, an inmate in Menard Correctional Center
(“Menard”), brings this action pursuant to 42 U.S.C. § 1983 for alleged
deprivations of his constitutional rights. In his Complaint, Plaintiff claims the
defendants have been deliberately indifferent to his serious medical issues in
violation of the Eighth Amendment. (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
1

(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).
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. This
practice is encouraged. The Seventh Circuit Court of Appeals has recently warned
district courts not to allow inmates “to flout the rules for joining claims and
defendants, see FED. R. CIV. P. 18, 20, or to circumvent the Prison Litigation
Reform Act’s fee requirements by combining multiple lawsuits into a single
complaint.”

Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017). See also
2

Wheeler v. Talbot, 695 F. App’x 151 (7th Cir. 2017) (district court should have
severed unrelated and improperly joined claims or dismissed one of them).
Consistent with George, Owens, and Wheeler, 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 spanning
two different prisons. The Court will organize his allegations by prison.
A. Stateville NRC
On March 24, 2017, Plaintiff “was placed on an emergency shipment to
Stateville NRC (IDOC) after receiving a sentence of 2 natural life sentences.” (Doc.
1, p. 4). Plaintiff did not have paperwork, medical records, or his property when
he was sent to Stateville.

Id.

Because of this, Stateville was unprepared to

process him. Id. “Even after learning [Plaintiff] had none of [his] records, they
failed to have them faxed. [Plaintiff] was not seen by doctors, or screened for
anything.” Id. Plaintiff told staff that he took several medications for medical and
psychological problems, but one guard told Plaintiff to stop trying to tell them,
threatening that if he did not stop he would “need meds for real.” Id.
Plaintiff was told he would do intake on another day. Id. On March 27,
2017, Plaintiff was told he needed to complete intake. Id. He “did everything
except medical and psych. This caused [Plaintiff] to be delayed even longer in
receiving [his] medication. [He] was also never given a TB test.” (Doc. 1, p. 5).
Plaintiff wrote multiple health slips, talked to nurses, and told corrections officers

3

that he needed his medication. Id. He was completely ignored or told that there
was nothing they could do. Id. He was eventually seen by medical on April 10,
2017, 16 days after he was processed. Id.
Venlafaxine, which is one of the medications Plaintiff takes for severe
depression, causes withdrawal symptoms if it is not taken daily. (Doc. 1, p. 6).
Plaintiff “experienced dizziness, loss of appetite, stomach aches/pain, weakness,

Id. Even after explaining that he was

throwing up, and bowel incontinence.”

going through withdrawals, Plaintiff was ignored. Id. When he saw the doctor on
April 10, he received a tuberculosis test and was prescribed Dicyclomine, which
he takes for severe stomach pains, and Famotidine for his acid reflux. Id. After
seeing the doctor, Plaintiff “still did not see psych, or receive any of [his]
psychotropic medications.” Id.
The doctor claimed they did not have Plaintiff’s records, and when they
called Cook County Jail to get his records, they claimed they had never heard of
Plaintiff. (Doc. 1, p. 7). The doctor told Plaintiff that he could not prescribe
Plaintiff medication for his psychological issues without his records. Id.
B. Menard Correctional Center
On or around April 19, Plaintiff was sent to Menard. Id. During intake,
Plaintiff explained his problems, as well as the fact that he was not receiving his
psych medication, and they told him he would be seen by a medical provider. Id.
“None of that happened which further delayed [Plaintiff] getting [his] psych meds.”

Id.

Plaintiff wrote grievances at both Stateville and Menard, but they

4

“mysteriously vanished.”

Id. Plaintiff had his Dicyclomine and Famotidine in

Menard, but they expired May 10, 2017, and “it took several months without
seeing a doctor and grievances before [Plaintiff] could get them re-prescribed.” Id.
Plaintiff was not prescribed his psychotropic medication until June 18, 2017. Id.
From May 10 to August 14, Plaintiff “received virtually none of [his] mediation.”

Id. The psych counselor explained that no one had bothered to retrieve any of
Plaintiff’s psych or medical records. (Doc. 1, pp. 7-8).
Plaintiff saw sick call several times and had to pay $5 every time because
they would not let Plaintiff see a doctor who could re-prescribe Plaintiff’s
medications. (Doc. 1, p. 8). Because it took so long to retrieve his psychotropic
medications, Plaintiff experienced severe depression as well as panic attacks. Id.
When the Famotidine and Dicyclomine were not re-prescribed, Plaintiff
experienced severe stomach pains, which affected his everyday activities and
caused him to constantly throw-up from acid reflux.

Id.

Plaintiff filed an

emergency grievance because he was in a lot of pain and needed his medications.

Id. “[T]hey denied it as an emergency and said to refile.” (Doc. 1, p. 9).
This situation caused Plaintiff severe pain, withdrawals, stress, depression,
anxiety, and hopelessness. Id. “The problems could have been easily avoided if
staff would have done their jobs properly and cared just enough to get [Plaintiff] to
a doctor timely.” (Doc. 1, p. 10). Plaintiff is “suing the state of Illinois under
respondeat superior until those names can be amended into this suit.”

Id.

Plaintiff seeks monetary damages, as well as “new policies put into place to ensure

5

this doesn’t happen to anyone else.” Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 2 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, or another court that may hear any claims severed
from this action. The designation of these counts does not constitute an opinion
regarding their merit.
Count 1 –

While Plaintiff was incarcerated at Stateville from March 24,
2017 to April 19, 2017, Defendants showed deliberate
indifference to Plaintiff’s serious medical needs by delaying
and/or failing to provide him with needed medications and
tests in violation of the Eighth Amendment.

Count 2 –

While Plaintiff was incarcerated at Menard from April 19, 2017
to August 14, 2017, Defendants showed deliberate indifference
to Plaintiff’s serious medical needs by delaying and/or failing to
provide him with needed medications in violation of the Eighth
Amendment.

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.
Both Counts 1 and 2 are brought against Illinois and the Illinois
Department of Corrections. Count 2 shall remain in the instant action, and the
merits of this claim shall be reviewed in this order. As shall be explained below,
this claim shall be dismissed at this time pursuant to § 1915A, so no claims will
remain in this action against Illinois or the Illinois Department of Corrections. As

6

a result, the remaining claims in Plaintiff’s Complaint represent two sets of
unrelated claims against different defendants: those based in Stateville in Count
1 and Menard in Count 2. Consistent with the George decision and Federal Rule
of Civil Procedure 21, the Court shall sever Count 1 into a separate action, and
shall open a new case with a newly-assigned case number for that claim.

A

separate merits review shall be conducted in the severed case after it is opened
and assigned to a judge. Plaintiff shall be assessed a new filing fee for the severed
case.
Count 2 - Menard
The Court will begin its discussion of this claim with a word about the
parties. Plaintiff has only named the State of Illinois and the Illinois Department
of Corrections (“IDOC”) as defendants in this suit. He has failed to name any
individuals who may have subjected him to the constitutional deprivations alleged
herein.

Plaintiff claims that he has named Illinois based on a theory of

respondeat superior, as a placeholder of sorts until the names of those
responsible for his issues can be included. However, the doctrine of respondeat

superior is not applicable to § 1983 actions, so Illinois and the Illinois
Department of Corrections are not proper defendants in this action based on that
theory. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
Further, the State of Illinois, as well as IDOC as a state agency, are not
“persons” that may be sued under § 1983. 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

7

(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
proceeding for redress . . . .”).
Finally, though Plaintiff could ultimately be awarded some injunctive relief
in this action if he were to bring a viable claim against appropriate defendants
requesting such relief in an amended complaint, the appropriate defendant for a
request for injunctive relief would likely be the warden at Menard, not the State of
Illinois or IDOC. Typically, in a claim for injunctive relief, the government official
who is responsible for carrying out the requested relief would be named as a
defendant in his or her official capacity. See Gonzalez v. Feinerman, 663 F.3d
311, 315 (7th Cir. 2011). In the context of prison litigation, the official is usually
the warden of the institution where the inmate is incarcerated. See id.
For the foregoing reasons, the State of Illinois and IDOC will be dismissed
from this action with prejudice as immune from suit.

Count 2 will also be

dismissed, albeit without prejudice, for failure to state a claim upon which relief
may be granted.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 2). There is no

8

constitutional or statutory right to appointment of counsel in federal civil cases.

Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). Federal District Courts
have discretion under 28 U.S.C. § 1915(e)(1) to request counsel to assist litigants
who are unable to afford counsel. Id.
When a pro se litigant submits a request for counsel, the Court must first
consider whether the indigent plaintiff has made reasonable attempts to secure
counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing

Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). If so, the Court must examine
“whether the difficulty of the case–factually and legally–exceeds the particular
plaintiff's capacity as a layperson to coherently present it.” Navejar, 718 F.3d at
696 (quoting Pruitt, 503 F.3d at 655). “The question . . . is whether the plaintiff
appears competent to litigate his own claims, given their degree of difficulty, and
this includes the tasks that normally attend litigation: evidence gathering,
preparing and responding to motions and other court filings, and trial.” Pruitt,
503 F.3d at 655. The Court also considers such factors as the plaintiff's “literacy,
communication skills, education level, and litigation experience.” Id.
It is unclear what efforts Plaintiff has made to recruit counsel. He generally,
and rather vaguely, alleges that he contacted attorneys he has had in previous
suits to take his case, and none seemed interested. Plaintiff did not provide any
further details regarding his efforts to secure counsel on his own (e.g., the names
of attorneys, dates of his requests, or copies of communications from them).
Therefore, the Court cannot adequately assess his efforts.

9

Further, the Court finds that it would be inappropriate to recruit counsel at
this time. Despite his partial high school education, the Court finds that Plaintiff
has demonstrated his ability to litigate his claims in federal court and prepare an
amended complaint without counsel. The legal principles at issue are of the sort
regularly litigated by inmates pro se. Further, his Complaint, despite its failure to
name a proper defendant, is generally well written. Plaintiff simply needs to name
eligible defendants at Menard and clearly identify what claims he is asserting
against each defendant and why. At this early stage, the Court finds that Plaintiff
can do this on his own. Therefore, the motion for recruitment of counsel (Doc. 2)
is DENIED without prejudice to Plaintiff renewing this request, should it become
necessary to do so in the future.
Disposition
IT IS HEREBY ORDERED that COUNT 1, which is unrelated to the other
claim in this action, is SEVERED into a new case against the ILLINOIS
DEPARTMENT OF CORRECTIONS and the STATE OF ILLINOIS.
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; and
The Complaint (Doc. 1).
Plaintiff will be responsible for an additional $350 filing fee in the newly

10

severed case. 1 No service shall be ordered in the severed case until the § 1915A
review is completed.
IT IS FURTHER ORDERED that the only claim remaining in this action

is Count 2 .
IT IS FURTHER ORDERED that COUNT 2 and the Complaint (Doc. 1) are
DISMISSED without prejudice for failure to state a claim upon which relief may
be granted.
IT IS FURTHER ORDERED that the ILLINOIS DEPARTMENT OF
CORRECTIONS and the STATE OF ILLINOIS are DISMISSED from this action
with prejudice for the reasons stated above.
IT IS FURTHER ORDERED that, should he wish to proceed with this case,
Plaintiff shall file a First Amended Complaint, stating any facts which may exist to
support a cognizable § 1983 claim, within 28 days of the entry of this Order (on
or before February 26, 2018).

Should Plaintiff fail to file his First Amended

Complaint within the allotted time or consistent with the instructions set forth in
this Order, the entire case shall be dismissed with prejudice for failure to comply
with a court order and/or for failure to prosecute his claims.

FED. R. APP. P.

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

41(b).

Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). Such
dismissal shall count as one of Plaintiff’s three allotted “strikes” within the

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.
1

11

meaning of 28 U.S.C. § 1915(g) because the dismissal herein is for failure to state
a claim upon which relief may be granted.
Should Plaintiff decide to file a First Amended Complaint, it is strongly
recommended that he use the forms designed for use in this District for such
actions. He should label the form, “First Amended Complaint,” and he should
use the case number for this action (i.e. 18-cv-92-DRH).

The pleading shall

present each claim in a separate count, and each count shall specify, by name, the
defendant alleged to be liable under the count, as well as the actions alleged to
have been taken by that defendant. Plaintiff should attempt to include the facts of
his case in chronological order, inserting each defendant’s name where necessary
to identify the actors. Plaintiff should refrain from filing unnecessary exhibits.
Plaintiff should include only related claims in his new complaint. Claims found to
be unrelated to the alleged deliberate indifference to his medical needs at Menard
will be severed into new cases, new case numbers will be assigned, and additional
filing fees will be assessed.
An amended complaint supersedes and replaces the original complaint,
rendering the original complaint void. See Flannery v. Recording Indus. Ass’n of

Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal
amendments to a complaint. Thus, the First Amended Complaint must stand on
its own, without reference to any previous pleading, and Plaintiff must re-file any
exhibits he wishes the Court to consider along with the First Amended Complaint.
The First Amended Complaint is subject to review pursuant to 28 U.S.C. § 1915A.

12

No service shall be ordered on any defendant until after the Court completes its §
1915A review of the First Amended Complaint.
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).
In order to assist Plaintiff in preparing his amended complaint, the Clerk is
DIRECTED to mail Plaintiff a blank civil rights complaint form.

Judge Herndon
2018.01.22
12:13:38 -06'00'

IT IS SO ORDERED.

United States District Judge

13