Parks v. Coe et al

Filing 13

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 8/13/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMON B. PARKS,
Plaintiff,
vs.
JOHN COE,
ELIZABETH BLANCHARD,
JOHN ALLEN,
WEXFORD HEALTH SOURCES,
INC.,
TOBY RICE, and
BROOKS
Defendants.

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Case No. 18 cv–1300 DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Damon B. Parks, an inmate in Illinois River Correctional Center,
brings this action for deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983 for events that occurred at Lawrence Correctional Center. Plaintiff
requests a settlement, which the Court construes as a request for monetary
damages.

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–
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(1) is frivolous, malicious, or fails to state a claim
on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an

objective standard that refers to a claim that any reasonable person would find
meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

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

See

Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A; portions of this
action are subject to summary dismissal.
The Complaint
Plaintiff alleges that Brooks confiscated his diabetic footwear and gave him
plastic boots instead. (Doc. 1, p. 5). As a result of the boots, Plaintiff’s left foot
developed ulcers, became infected, and ultimately had to be amputated.

Id.

Plaintiff alleges that Coe failed to treat the infection properly, and that if he had,
Plaintiff would not have lost the foot. Id. When Plaintiff returned to the hospital,
Coe deprived him of pain medication and physical therapy out of retaliation for
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another § 1983 lawsuit, 16-cv-1229-SMY-RJD. (Doc. 1, p. 6). Blanchard also
participated in the negligent medical care leading up to the amputation. Id.
Discussion
As Plaintiff acknowledges in his Complaint, this is not his first lawsuit
before the Court. Plaintiff filed Parks v. Coe, et. al., 16-cv-1229-SMY-RJD (“161229”) in this Court on November 7, 2016. That case contained 4 claims: 1) Rice
was deliberately indifferent to Plaintiff’s diabetes in violation of the Eighth
Amendment when he refused to allow Plaintiff to keep his prescribed diabetic
shoes; 2) Coe was deliberately indifferent to Plaintiff’s diabetes in violation of the
Eighth Amendment when he refused to admit him to the health care unit on May
19, 2016, refused to provide antibiotics or admit Plaintiff to the health care unit
on June 2, 2016; and refused to refer Plaintiff in a timely manner to an outside
medical provider; 3) Blanchard was deliberately indifferent to Plaintiff’s diabetes
when she refused to document Plaintiff’s foot condition on approximately June 2,
2016; 4) Wexford Health Sources has an unconstitutional policy of instructing
medical care providers not to prescribe antibiotics when medically indicated due
to cost concerns. (16-1229, Doc. 9).
After service, Defendants in the first case filed motions for summary
judgment alleging that Plaintiff failed to exhaust his administrative remedies. (161229, Doc. 35, Doc. 38). The Magistrate Judge recommended that the case be
dismissed

for

failure

to

exhaust, and

the

District

judge

accepted

the

recommendation on April 30, 2018. (16-1229, Doc. 54, Doc. 61). The case was

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dismissed without prejudice at that time because the District Judge found that
Plaintiff had not initiated the grievance process within 60 days of the relevant
events, and because Plaintiff’s testimony that he had filed earlier grievances that
had gone missing was not credible. (16-1229, Doc. 61). Plaintiff filed a motion
for rehearing on May 2, 2018.

(16-1229, Doc. 62).

That motion remains

pending. (16-1229, Doc. 62).
In the present suit, when asked about the results of the grievance process,
Plaintiff replied that his previous lawsuit was dismissed without prejudice. (Doc.
1, p. 4).

He also noted that his counselor, Mr. Piper, said that he could not

Id.

process any grievances after 60 days.

Plaintiff considers the grievance

process moot. Id.
Plaintiff’s attempt to bring most of the claims in this lawsuit is improper.
Many, although not all, of the claims are duplicative of the claims in 16-1229.
Moreover, that case has been dismissed. The Seventh Circuit requires district
courts to dismiss suits without prejudice for failure to exhaust. Ford v. Johnson,
362 F.3d 395, 401 (7th Cir. 2004). However the operation of § 1997e(a) will
effectively bar the suit permanently if it is too late to exhaust.

Id. Walker v.

Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002).
Here, Plaintiff concedes that his earlier suit was dismissed for failure to
exhaust. That dismissal is res judicata to the issues decided in that litigation.

Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002). If Plaintiff is unhappy with
the results of that case, his remedy is to file a motion for reconsideration (which

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he has done) and if still unsuccessful, an appeal. This is true regardless of the
correctness of the earlier decision; a plaintiff cannot engage in duplicative
litigation at the district court level to correct an error. Id.
So the Court must accept the proposition that Plaintiff did not exhaust his
administrative remedies as of April 30, 2018, when his first suit was dismissed.
The Complaint in this case does not document any further attempts to exhaust
administrative remedies between that date and June 20, 2018, when Plaintiff
brought this suit. In fact, Plaintiff has stated that his counselor told him that he
cannot accept any grievances after 60 days. Plaintiff alleges that this makes the
grievance requirement moot. That is untrue; the requirement remains applicable
to Plaintiff. Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002) (grievance
not exhausted unless prisoner follows grievances procedure correctly). Moreover,
the District Judge in Plaintiff’s earlier suit specifically found that Plaintiff had not
exhausted his remedies because he had not filed his grievances within 60 days of
the relevant events. That is not a deficiency that Plaintiff can cure two years on,
meaning that § 1997e effectively bars this suit in federal court. Accordingly, the
Court will not consider Plaintiff’s claims against Blanchard, Wexford, or Rice in
this suit. Additionally, Plaintiff’s claims against Coe for deliberate indifference to
his diabetes and associated complications are also barred.
The Court sees 2 potential claims that were not present in the original
lawsuit:

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Count 1 – Brooks was deliberately indifferent to Plaintiff’s diabetes
in violation of the Eighth Amendment when he refused to allow
Plaintiff to keep his prescribed diabetic shoes;
Count 2 – Coe retaliated against Plaintiff for filing 16-1229 and
associated grievances by depriving Plaintiff of pain medication and
physical therapy in violation of the First Amendment.
Plaintiff has also named new Defendant John Allen in this suit. However,
his statement of claim contains no allegations against Allen, so the Court is unable
to ascertain what claims, if any, Plaintiff has against Allen.
The reason that plaintiffs, even those proceeding pro se, for whom the
Court is required to liberally construe complaints, see Haines v. Kerner, 404 U.S.
519, 520-21 (1972), are required to associate specific defendants with specific
claims is so these defendants are put on notice of the claims brought against them
and so they can properly answer the complaint. “Federal Rule of Civil Procedure
8(a)(2) requires only ‘a short and plain statement of the claim showing that the
pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Thus, where a plaintiff has not included a defendant in his statement of the claim,
the defendant cannot be said to be adequately put on notice of which claims in the
complaint, if any, are directed against him. Furthermore, merely invoking the
name of a potential defendant is not sufficient to state a claim against that
individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff

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cannot state a claim against a defendant by including the defendant’s name in the
caption.”).
Because Plaintiff has not listed Allen elsewhere in his Complaint, he has not
adequately stated claims against him, or put him on notice of any claims that
Plaintiff may have.

For this reason, Allen will be dismissed from this action

without prejudice.
Turning to Count 1, it is clear that Plaintiff’s diabetes and the
complications that resulted in the loss of his foot constitute a serious medical

Guitierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).

need.

Moreover,

where a prison official knows of a serious risk of harm and disregards it, that
official will have demonstrated deliberate indifference.

Gomez v. Randle, 680

F.3d 859, 865 (7th Cir. 2012). Plaintiff alleges that he told Brooks of the risks
posed to him by non-diabetic shoes, and that Brooks made him wear them
anyway.

This is a plausible allegation of deliberate indifference, and Count 1

shall proceed against Brooks. 1
Plaintiff has also alleged that Coe retaliated against him for filing grievances
and 16-1229.

To succeed on a First Amendment retaliation claim, a plaintiff

must prove 1) that he engaged in conduct protected by the First Amendment; 2)
that he suffered a deprivation that would likely deter First Amendment activity in

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The Court finds it odd that Brooks was never mentioned in 16-1229 and suspects Plaintiff will be asked to
explain that discrepancy at some point. However, the Federal Rules of Civil Procedure do not require all joint
tortfeasors to be named as defendants in a single lawsuit. Pace v. Timmermann’s Ranch and Saddle Shop, Inc., 795
F.3d 748, 756 (7th Cir. 2015).

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the future; and 3) that the protected conduct was a “motivating factor” for taking
the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Filing a truthful grievance constitutes protected activity under the First
Amendment, as is filing a lawsuit. Bounds v. Smith, 430 U.S. 817, 821 (1977);

Harris v. Walls, 604 F. App’x 518, 521 (7th Cir. 2015). Although there are some
contradictory allegations in 16-1229, the Court will accept Plaintiff’s allegations in
this suit that Coe withheld pain medication and physical therapy in retaliation for
Plaintiff’s grievances and lawsuits. As the denial of crucial medical care is likely
to deter First Amendment activity, and Plaintiff has alleged that Coe was
motivated by his protected activity, Plaintiff has adequately stated a First
Amendment claim against Coe, and Count 2 will proceed in this lawsuit.
Pending Motions
Plaintiff’s Motion for Recruitment of Counsel will be referred to a Magistrate
Judge for disposition. (Doc. 3).
Disposition
IT IS HEREBY ORDERED that Counts 1 and 2 survive threshold review
against Brooks and Coe. Any and all claims encompassed by the litigation in case
16-1229 are DISMISSED with prejudice as barred by res judicata. John Allen is
DISMISSED without prejudice for failure to state a claim.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants
Brooks and Coe: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of
a Summons), and (2) Form 6 (Waiver of Service of Summons).

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The Clerk is

DIRECTED to mail these forms, a copy of the complaint, and this Memorandum
and Order to each Defendant’s place of employment as identified by Plaintiff. If a
Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to
the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on that Defendant, and the Court will
require that Defendant to pay the full costs of formal service, to the extent
authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a Defendant who no
longer can be found at the work address provided by Plaintiff, the employer shall
furnish the Clerk with the Defendant’s current work address, or, if not known, the
Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation
of the address shall be retained only by the Clerk. Address information shall not
be maintained in the court file or disclosed by the Clerk.
Defendants are ORDERED to timely file an appropriate responsive pleading
to the complaint and shall not waive filing a reply pursuant to 42 U.S.C. §
1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United
States Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is REFERRED to a United States Magistrate
Judge for disposition, as contemplated by Local Rule 72.2(b)(3) and 28 U.S.C. §
636(c), should all the parties consent to such a referral.

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IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff,
and the judgment includes the payment of costs under Section 1915, Plaintiff will
be required to pay the full amount of the costs, notwithstanding that his
application to proceed in forma pauperis has been granted. See 28 U.S.C. §
1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney
were deemed to have entered into a stipulation that the recovery, if any, secured
in the action shall be paid to the Clerk of the Court, who shall pay therefrom all
unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1)
Finally, Plaintiff is ADVISED that he is under a continuing obligation to
keep the Clerk of Court and each opposing party informed of any change in his
address; the Court will not independently investigate his whereabouts. This shall
be done in writing and not later than 7 days after a transfer or other change in
address occurs.

Failure to comply with this order will cause a delay in the

transmission of court documents and may result in dismissal of this action for
want of prosecution. See FED. R. CIV. P. 41(b).

Judge Herndon
2018.08.13 11:29:04
-05'00'
__________________________________

IT IS SO ORDERED.
D.

U.S. District Judge
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