Eastman v. Santos et al
ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 4/12/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WEXFORD HEALTH, and
ILLINOIS DEPARTMENT OF
Case No. 18−cv–602−SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
This case was severed on March 23, 2018, from Eastman v. Doe, et al., Case No. 18-cv543-DRH-DGW (S.D. Ill.). (Doc. 2). It contains the claims designated as Counts 3 through 5 in
the original case, described as follows:
Count 3 –
Santos, Mueller, Kink, Stock, Krebs, Downes, Johnson, McAbee, Walker,
Zelasko, Wegman, Lahr, Wexford, and IDOC showed deliberate
indifference to Plaintiff’s serious medical need involving a deformity and
arthritis in his feet and pain associated therewith in violation of the Eighth
Count 4 –
Santos, Mueller, Kink, Stock, Krebs, Downes, Johnson, McAbee, Walker,
Zelasko, Wegman, Lahr, Wexford, and IDOC committed Illinois medical
malpractice/negligence in their treatment or handling of a deformity and
arthritis in Plaintiff’s feet and pain associated therewith.
Count 5 –
IDOC violated the Americans with Disabilities Act and the Rehabilitation
Act by failing to accommodate Plaintiff’s needs related to a deformity and
arthritis in his feet.
Plaintiff’s claims, which pertain to his incarceration at Centralia Correctional Center
(“Centralia”) are now before the Court for a preliminary review pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner Complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally
frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks money
damages from a defendant who by law is immune from such relief, must be dismissed. 28
U.S.C. § 1915A(b).
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 “no reasonable person could suppose to have any merit.” 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. Conversely, a complaint is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
Although the Court is obligated to accept factual allegations as true, see Smith v. Peters,
631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible
that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Courts “should not accept as adequate abstract recitations of the elements of
a cause of action or conclusory legal statements.” Id. However, the factual allegations of a pro
se complaint are to be liberally construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Plaintiff’s factual allegations relating to Counts 3 through 5 are summarized below.
Plaintiff was born with a medical condition that causes the bones of his feet and ankles to
collapse out of alignment when weight is put on them. (Doc. 1, p. 24). This misalignment and
malformation causes Plaintiff’s bones to bear weight in an unnatural way, and as a result,
Plaintiff has difficulty walking. Id. This condition “causes extreme pain and discomfort that is
only alleviated if [Plaintiff is] wearing braces that hold the ankles and feet in correct alignment.”
Id. Plaintiff suffers from three types of pain: stabbing pain when he puts weight on his feet and
ankles without corrective footwear; a dull, throbbing, burning pain that started in February 2015
and continues; and a sharp, sudden, stabbing, debilitating pain that began in March 2016 and
occurs without warning when Plaintiff does not have something to support himself with, such as
a cane. Id. This pain has caused Plaintiff to fall many times. Id.
As a child, Plaintiff wore custom-fitted orthopedic braces until he was approximately 12years old. Id. While Plaintiff was imprisoned at Big Muddy Correctional Center, a physician
prescribed him foam insoles, which he received August 20, 2014. Id. After he was transferred
to Centralia, Plaintiff received medical lay-ins after suffering injuries on March 5, 2016 and
April 11, 2016. Id. Dr. Santos issued Plaintiff the same type of foam insoles on March 5, 2016
after his first injury. Id. Dr. Santos ordered an X-ray after the April 11, 2016 injury. Id. The Xray “showed the presence and progression of permanent damage/arthritis in the same areas
affected by [Plaintiff’s] medical condition.” Id.
Dr. Garcia issued Plaintiff a slow-walker pass on September 21, 2016 and prescribed
Plaintiff ACE wraps. Id. On October 26, 2016, Garcia renewed the slow-walker pass and issued
Plaintiff a “No Prolonged Standing Order.” Id. On November 9, 2016, Garcia referred Plaintiff
back to Dr. Santos for orthopedic shoes, but Santos denied them. Id. Garcia recommended
orthopedic shoes on March 15, 2017. Id. Santos issued Plaintiff AFO braces on July 3, 2017,
which Plaintiff received on July 17, 2017. Id. Santos also issued Plaintiff gel insoles on August
18, 2017. (Doc. 1, p. 25). Dr. Baker issued Plaintiff a cane and ordered X-rays on September
22, 2017. Id. These X-rays showed “bi-lateral flat feet deformity.” Baker ordered lace-up ankle
supports on November 28, 2017, which Plaintiff received on February 8, 2018. Id.
None of the medical devices issued by the Illinois Department of Corrections (“IDOC”)
and Wexford have any corrective ability. Id. The insoles and gel do not provide ankle support
or correct the ankles or arches. Id. The AFO braces are not designed for Plaintiff’s medical
condition and do not correct his bone alignment. Id. The ACE wraps are also not corrective, but
instead “simply wrap around the foot.” Id. The lace-up supports provide stiff support for
Plaintiff’s ankles but do not correct the alignment of his ankles or arches and “so are ineffective
against [his] medical condition.” Id.
Plaintiff also alleges that Dr. Santos refused him pain medication on two separate
occasions. Id. During every visit with Santos after his March 5, 2016 fall (on at least 11
occasions), Plaintiff asked for and was denied a mobility aid to prevent falls, orthopedic shoes
and an exam with an orthopedic specialist. Id. Even after Dr. Garcia recommended orthopedic
shoes and after Plaintiff complained of falls, Santos insisted on issuing Plaintiff foam insoles
knowing that he was already wearing the same insoles when he was injured. Id. Santos also
would not schedule Plaintiff for any type of rehabilitation services after discovering that Plaintiff
had arthritis. Id.
Lisa Krebs, the Health Care Unit administrator, refused to intervene and allow Plaintiff to
be seen by an orthopedic specialist. Id. She also refused to investigate Plaintiff’s claims of
ineffective treatment, and she lied in her written response to Plaintiff, which was later used to
deny Plaintiff relief in a grievance. Id.
Warden Mueller failed to investigate Plaintiff’s claims of medical malpractice and
deliberate indifference against Santos, as well as Plaintiff’s claims “of medical device
interference by a black box device against Majors Johnson and McAbee.” (Doc. 1, p. 26). He
also refused to intervene and stop these alleged abuses. Id. Warden Kink and Warden Stock
also refused to investigate Plaintiff’s claims of medical device interference by a black box
device, and to intervene and stop these alleged abuses. Id.
Sgt. Downes forced Plaintiff to stand against medical orders, “resulting in 11 falls and
near-falls, and he also sadistically laughed about a comment he made of ‘kicking [Plaintiff’s]
legs out from under [him].’” Id. He could have allowed Plaintiff to sit down at a stone bench
feet away from where he was standing. Id.
Majors Johnson and McAbee ignored Plaintiff’s medical needs by forcing him to wear a
black box device although it prevented Plaintiff from being able to use his cane. Id. They also
refused to swap the black box for waist chains, which would have allowed Plaintiff to use his
cane, or the cane for a wheelchair, which would have enabled the black box device to be used.
Id. These solutions would have prevented unnecessary pain and suffering. Id. Plaintiff had a
“near-fall as a result of Major McAbee’s order to use the black box device on Tuesday, October
10, 2017. Major Johnson’s unconstitutional order was made on Wednesday, October 4, 2017.”
Counselors Walker, Zelasko and Wegman, along with Lahr, refused to allow Plaintiff’s
grievances to be reviewed by an ADA Coordinator.
Lahr also refused to investigate
Plaintiff’s claims in the two grievances that she reviewed. Id. “Because of the rules and
regulations as stated, Counselors Walker, Zelasko and Wegman, along with Lahr, were not
permitted to review and answer [Plaintiff’s] grievances.” Id.
Wexford “knowingly employs officials who have a track record for not providing the
correct type of care, or outright refusing to provide care at all, for serious medical needs.” Id.
IDOC allowed employees and contractors to ignore Plaintiff’s medical needs. Id. As a result of
his condition and the pain he experiences walking, Plaintiff has missed meals, religious services,
recreational periods, job assignment opportunities, mental health services and other general
activities. (Doc. 1, p. 28).
Plaintiff requests a permanent injunction 1 requiring that he be seen by an orthopedic
specialist, that he receive corrective orthopedic shoes and that he be allowed to work “any job
assignment that [he] otherwise qualif[ies] for.” (Doc. 1, p. 30). Plaintiff also seeks declaratory
and monetary relief. (Doc. 1, pp. 30-31).
The Eighth Amendment protects inmates 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)
Plaintiff’s request for a preliminary injunction was denied without prejudice in the severance order. (Doc. 1).
To state such a claim, an inmate 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
The Seventh Circuit has held that a medical need is objectively serious if it has either
“been diagnosed by a physician as mandating treatment” or is “so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d
1364, 1373 (7th Cir. 1997).
Plaintiff’s deformity, arthritis and associated pain satisfy the
objective component of Count 3 for screening purposes. However, the analysis does not end
The Complaint allegations must also suggest that Defendants exhibited deliberate
indifference to Plaintiff’s serious medical need. Deliberate indifference is established when
prison officials “know of and disregard an excessive risk to inmate health” by being “‘aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists’” and
“‘draw[ing] the inference.’” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting
Farmer, 511 U.S. at 834).
For a medical professional to be held liable for deliberate indifference, he or she must
make a decision that represents “such a substantial departure from accepted professional
judgment, practice, or standards, as to demonstrate that the person responsible actually did not
base the decision on such a judgment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008).
Inmates do not have a right to demand specific care, nor are they entitled to the “best care
possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). By the same token, prison
medical staff cannot simply continue with a course of treatment known to be ineffective. Greeno
v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
Delaying treatment may also constitute deliberate indifference if the delay exacerbated
the injury or unnecessarily prolonged an inmate's pain.” Gomez v. Randle, 680 F.3d 859, 865
(7th Cir. 2012) (internal citations and quotations omitted); see also Farmer v. Brennan, 511 U.S.
825, 842 (1994). Also, the “deliberate refusal to treat treatable pain can rise to the level of an
Eighth Amendment violation.” Brown v. Darnold, 505 F. App’x. 584 (7th Cir. 2013) (citing Gil
v. Reed, 381 F.3d 649, 661-62 (7th Cir. 2004)).
The Court finds the deliberate indifference standard satisfied as to Dr. Santos. According
to the Complaint, Santos refused Plaintiff pain medication on two occasions, denied a mobility
aid to prevent falls, denied orthopedic shoes (despite recommendations from other physicians),
prescribed insoles he knew to be ineffective and refused to refer Plaintiff for rehabilitative
services. These allegations are sufficient at the pleading stage to allow Count 3 to proceed as to
Sgt. Downes and Majors Johnson and McAbee
Plaintiff alleges that Sgt. Downes forced him to stand against medical orders, causing
him to fall or almost fall on multiple occasions. He claims Majors Johnson and McAbee ignored
his medical needs by forcing him to wear a black box, which prevented him from using his cane.
These allegations are sufficient to allow Count 3 to proceed as to these defendants. See Estelle v.
Gamble, 429 U.S. 97, 104–05 (1976) (deliberate indifference is manifested by “prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed”).
Other Non-Medical Officials
Plaintiff alleges that Krebs refused to intervene and allow him to be seen by an
orthopedic specialist and refused to investigate his claims pertaining to ineffective treatment.
Plaintiff also claims that Wardens Mueller, Kink, and Stock refused to investigate his claims
and/or failed to intervene to stop the alleged constitutional abuses. Although these individuals
are not medical providers, their alleged failure to take action on Plaintiff’s behalf, after Plaintiff
allegedly brought complaints to their attention, sufficiently suggests deliberate indifference at
this early stage. See Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (prisoner could
proceed with deliberate indifference claim against non-medical prison officials who failed to
intervene despite their knowledge of his serious medical condition and inadequate medical care,
as explained in his “coherent and highly detailed grievances and other correspondences”); Arnett
v. Webster, 658 F.3d 742, 755 (7th Cir. 2011) (non-medical defendant may be chargeable with
deliberate indifference if he or she has reason to believe that prison medical staff members are
ignoring a prisoner's medical needs and fails to act).
The Complaint also alleges that Walker, Zelasko, Wegman and Lahr actively interfered
with his attempts to obtain medical care through the grievance process and/or refused to
investigate Plaintiff’s grievances pertaining to inadequate medical care. These allegations also
warrant further review.
Generally, the denial of a grievance – standing alone – is not enough to violate the United
States Constitution. See, e.g., Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017) (“Prison
officials who simply processed or reviewed inmate grievances lack personal involvement in the
conduct forming the basis of the grievance.”). Nevertheless, as the Seventh Circuit explained in
Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015), an official may be subject to liability if he or
she “knows about unconstitutional conduct and facilitates, approves, condones, or ‘turn[s] a
blind eye’ to it.” Perez, 792 F.3d at 781 (citing Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.
In Perez, the plaintiff sued prison doctors as well as grievance officials for allegedly
inadequate medical care. The Complaint, which was dismissed at screening, alleged that prison
officials (1) obtained actual knowledge of the plaintiff’s “objectively serious medical condition
and inadequate medical care through [the plaintiff’s] coherent and highly detailed grievances and
other correspondences” and (2) failed “to exercise [their] authority to intervene on [the
plaintiff’s] behalf to rectify the situation, suggesting they either approved of or turned a blind eye
to [the plaintiff’s] allegedly unconstitutional treatment.” Id. at 782.
The Appellate Court
concluded that such allegations warranted further review and should not have been dismissed at
screening. Id. In so holding, the Seventh Circuit explained that discovery might shed light on
whether the grievance officials took investigative action or “reasonably relied on the judgment of
medical professionals.” Id. (citing Vance v. Peters, 97 F.3d. 987, 993 (7th Cir. 1996); Johnson
v. Doughty, 433 F.3d 1001, 1011 (7th Cir. 2006)). The same rationale applies in this case.
Plaintiff’s allegations present “questions of fact that simply cannot be resolved in the absence of
a record.” Id.
For these reasons, Count 3 will proceed against Mueller, Kink, Stock, Krebs, Downes,
Johnson, McAbee, Walker, Zelasko, Wegman and Lahr.
Count 3 must be dismissed as to IDOC because as a state agency, it is not a “person” 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 (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....”). Accordingly,
IDOC will be dismissed from Count 3 with prejudice.
Wexford is a corporation that employs health care providers at IDOC facilities, including
Centralia, and provides medical care to inmates, but it cannot be held liable solely on that basis.
Rather, a corporation can be held liable for deliberate indifference only if it had a policy or
practice that caused the alleged violation of a constitutional right. Woodward v. Corr. Med. Serv.
of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). See also Jackson v. Ill. Medi-Car, Inc., 300 F.3d
760, 766 n.6 (7th Cir. 2002) (private corporation is treated as though it were a municipal entity in
a § 1983 action).
Here, Plaintiff alleges that Wexford knowingly employs individuals who have a history
of providing inadequate treatment and/or denying treatment. In essence, Plaintiff is alleging that
Wexford engaged in poor or negligent hiring practices. This is not sufficient to impose liability
on them. This is because Wexford's allegedly negligent hiring decisions do not constitute a
policy or practice that caused the medical provider defendants to violate Plaintiff's rights. Thus,
Wexford will be dismissed from Count 3 without prejudice.
Plaintiff also brings state law claims of medical malpractice against Santos, Mueller,
Kink, Stock, Krebs, Downes, Johnson, McAbee, Walker, Zelasko, Wegman, Lahr, Wexford, and
IDOC, based on the same conduct detailed above. 2 As an initial matter, Mueller, Kink, Stock,
Krebs, Downes, Johnson, McAbee, Walker, Zelasko, Wegman and Lahr shall be dismissed from
Count 4 without prejudice.
There is no indication that these individuals are “health
professionals” and therefore, they cannot be properly sued for medical malpractice. 3 IDOC will
be dismissed from Count 4 without prejudice for the same reason.
The remaining defendants, Santos and Wexford, may be appropriate defendants with
respect to Plaintiff’s medical malpractice claim. That said, Count 4 must also be dismissed as to
these defendants because Plaintiff has failed to comply with a substantive and procedural
requirement applicable to medical malpractice actions in Illinois.
Under Illinois law, a Plaintiff “[i]n any action, whether in tort, contract or otherwise, in
which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other
healing art malpractice,” must file an affidavit along with the complaint, declaring one of the
following: 1) that the affiant has consulted and reviewed the facts of the case with a qualified
health professional who has reviewed the claim and made a written report that the claim is
reasonable and meritorious (and the written report must be attached to the affidavit); 2) that the
affiant was unable to obtain such a consultation before the expiration of the statute of limitations,
and affiant has not previously voluntarily dismissed an action based on the same claim (and in
this case, the required written report shall be filed within 90 days after the filing of the
Where a district court has original jurisdiction over a civil action such as a § 1983 claim, it also has supplemental
jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long as the state claims “derive from a
common nucleus of operative fact” with the original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921,
936 (7th Cir. 2008). “A loose factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495
(7th Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)). Applying this
standard, the Court has supplemental jurisdiction over Plaintiff’s state-law claims pursuant to 28 U.S.C. § 1367.
The Illinois Supreme Court has described medical malpractice, or “healing art” malpractice, as “a broad category
that is not confined to actions against physicians and hospitals but rather, [ ] may also include actions against other
health professionals such as dentists or psychologists.” Bernier v. Burris, 497 N.E.2d 763, 767 (Ill. 1986). Even
that broad description does not include correctional officers, grievance officials or prison supervisory officials with
no professional medical training.
complaint); or 3) that the plaintiff has made a request for records but the respondent has not
complied within 60 days of receipt of the request (and in this case the written report shall be filed
within 90 days of receipt of the records). See 735 ILL. COMP. STAT. §5/2-622(a). A separate
affidavit and report shall be filed as to each defendant. See 735 ILL. COMP. STAT. §5/2-622(b).
Failure to file the required certificate is grounds for dismissal of the claim. See 735 ILL.
COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). However,
whether such dismissal should be with or without prejudice is up to the sound discretion of the
court. Sherrod, 223 F.3d at 614. “Illinois courts have held that when a plaintiff fails to attach a
certificate and report, then ‘a sound exercise of discretion mandates that [the plaintiff] be at least
afforded an opportunity to amend her complaint to comply with section 2-622 before her action
is dismissed with prejudice.’” Id.; see also Chapman v. Chandra, Case No. 06-cv-651-MJR,
2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).
In the instant case, Plaintiff has failed to file the necessary affidavits or reports.
Therefore, the claim in Count 4 shall be dismissed as to the remaining defendants. However, the
dismissal shall be without prejudice at this time, and Plaintiff shall be allowed 90 days to file the
required affidavit(s), if he desires to seek reinstatement of this claim. The certificate(s) of merit
must also be filed, in accordance with the applicable section of §5/2-622(a). Should Plaintiff fail
to timely file the required affidavits/certificates, the dismissal of Count 4 may become a
dismissal with prejudice.
Title II of the ADA prohibits public entities from denying qualified individuals with
disabilities the opportunity to participate in the services, programs, or activities of the public
entity because of their disabilities. 42 U.S.C. § 12132. The Supreme Court has held that Title II
of the ADA applies to prisons. See Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206 (1998).
Furthermore, in United States v. Georgia, 546 U.S. 151 (2006), the Supreme Court recognized
that an inmate may bring a private cause of action for damages under Title II, if the state actor's
conduct also violates the Eighth Amendment.
Based on his physical condition, Plaintiff is arguably a qualified disabled person for ADA
purposes. 42 U.S.C. § 12102(1). Thus, if his allegations state a plausible claim that Defendants
may have been deliberately indifferent to his disability-related needs, he may proceed on his
claim under the ADA. Plaintiff also claims that as a result of his condition and the pain he
experiences walking, he has missed meals, religious services, recreational periods, job
assignment opportunities, mental health services and other activities.
This allegation also
indicates a possible ADA violation.
Claims under Title II of the ADA must be brought against a governmental (i.e., public)
entity rather than against an individual, 42 U.S.C. § 12132. Therefore, the Court will also allow
Plaintiff's ADA Title II claim based on the deliberately indifferent failure to provide him
accommodations for his medical condition to proceed against IDOC.
Turning to the Rehabilitation Act, the Seventh Circuit instructs that claims of
discrimination on account of a disability, especially those from pro se prisoner litigants, must be
analyzed in light of both the ADA and the Rehabilitation Act, whether or not the plaintiff has
asserted a claim under the latter statute. Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012);
Jaros v. Illinois Dept. of Corr., 684 F.3d 667 (7th Cir. 2012). A state prisoner may have a cause
of action under the Rehabilitation Act even if the ADA does not give rise to a claim. Id. To
state a claim under the Rehabilitation Act, 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.” Jaros, 684 F.3d at 672; see 29 U.S.C. § 705(2)(B). A refusal
to make accommodations for an inmate’s disability “is tantamount to denying access.” Id.
Plaintiff's factual allegations support a Rehabilitation Act claim that he was denied access
to various programs or activities at the prison. For these reasons, Plaintiff may proceed against
IDOC on Count 5 under both the ADA and Rehabilitation Act.
Plaintiff’s motions for recruitment of counsel (Doc. 4) shall be referred to United States
Magistrate Judge Reona J. Daly for further consideration.
IT IS HEREBY ORDERED that COUNT 3 will proceed as to SANTOS, MUELLER,
KINK, STOCK, KREBS, DOWNES, JOHNSON, MCABEE, WALKER, ZELASKO,
WEGMAN and LAHR. COUNT 3 will be DISMISSED without prejudice as to WEXFORD
and with prejudice as to IDOC.
IT IS FURTHER ORDERED that COUNT 4 is DISMISSED without prejudice for the
reasons stated herein.
IT IS FURTHER ORDERED that COUNT 5 will proceed as to IDOC.
The Clerk of the Court is DIRECTED to terminate WEXFORD as a defendant in
IT IS FURTHER ORDERED that if Plaintiff wishes to move the Court to reinstate the
medical malpractice/negligence claim(s) in COUNT 4 against SANTOS and/or WEXFORD,
Plaintiff shall file the required affidavit(s) pursuant to 735 Ill. Comp. Stat. §5/2-622, within 90
days of the date of this order (on or before July 12, 2018). Further, Plaintiff shall timely file the
required written report(s)/certificate(s) of merit from a qualified health professional, in
compliance with §5/2-622. Should Plaintiff fail to timely file the required affidavits or reports,
the dismissal of COUNT 4 may become a dismissal with prejudice.
IT IS FURTHER ORDERED that as to COUNTS 3 and 5, the Clerk of Court shall
prepare for SANTOS, MUELLER, KINK, STOCK, KREBS, DOWNES, JOHNSON,
MCABEE, WALKER, ZELASKO, WEGMAN, LAHR and IDOC: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
Summons). The Clerk is DIRECTED to mail these forms, a copy of the Complaint, and this
Memorandum and Order to the defendants’ place of employment as identified by Plaintiff.
If one of the defendants fails to sign and return the Waiver of Service of Summons (Form 6) to
the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps
to effect formal service on that defendant, and the Court will require the defendant to 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 United States Magistrate
Judge Reona J. Daly for further pre-trial proceedings, including Plaintiff’s Motion for
Recruitment of Counsel. Further, this entire matter shall be REFERRED to United States
Magistrate Judge Daly 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.
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.
DATED: April 12, 2018
s/ STACI M. YANDLE
U.S. District Judge
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