Serio v. Brown et al

Filing 9

Order for Service of Process: As explained in this order, Plaintiff may proceed on Claim 1 against Jane Doe 2, Claim 2 against Defendants Mitchell and McDonald, Claim 3 against Ridgeway and Skorch, and Claim 4 against Jane Doe 2, Mitchell, McDonald R idgeway and Skorch. The Clerk is DIRECTED to serve Defendants David Mitchell, Lt. McDonald, Brandon Ridgeway and Diane Skorch. By contrast, all other claims against all other parties are dismissed for failure to state a claim, and the Clerk is DIRECTED to TERMINATE Defendants Christine Brown, IDOC, Brock Morgenstern, and Jane Doe 1. The Clerk is DIRECTED to enter a standard HIPAA Order in this case. Signed by Judge David W. Dugan on 11/13/2023. (kgk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAYMOND SERIO,
B70625,
Plaintiff,
vs.
CHRISTINE BROWN,
ILLINOIS DEPT. OF CORR.,
DAVID MITCHELL,
BRANDON RIDGEWAY,
DIANE SKORCH,
BROCK MORGENSTERN,
LT. McDONALD,
JANE DOE #1,
JANE DOE #2,
Defendants.

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Case No. 23-CV-2874-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
Plaintiff Raymond Serio, an inmate of the Illinois Department of Corrections
(IDOC) currently detained at Pinckneyville Correctional Center (Pinckneyville), brings
this civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his
constitutional rights. (Doc. 1). Plaintiff alleges that the Defendants have violated his
rights by failing to provide his medications in a timely fashion when he transferred from
Menard, and by failing to house him in a cell that meets his mental health needs. He
seeks injunctive relief and monetary compensation.
Plaintiff’s Complaint (Doc. 1) is now before the Court for preliminary review
pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen

prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a)-(b).
Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for money damages from a defendant who by law
is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b). At this juncture,
the factual allegations of the pro se complaint are to be liberally construed. Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
Plaintiff was transferred from Menard Correctional Center to Pinckneyville on
January 6, 2023.

Upon intake, he informed Jane Doe 2 that he took psychotropic

medications, and that a lapse in his medications would cause severe withdrawal. (Doc.
1 at 6-7). He explained that he suffers from severe depression, anxiety, schizoaffective
disorder, and paranoia. If his psychosis or paranoia is triggered, he can experience audio
and visual hallucinations, which make him unable to differentiate between reality and
paranoia/hallucinations. Dr. Baig, a treating psychiatrist from Menard allegedly was
going to contact administrators to ensure that Plaintiff would be single-celled due to his
mental health. Jane Doe 2 assured Plaintiff that she would receive and review all his
charts, and she would make sure there were no medication delays. (Doc. 1 at 7-8).
Ultimately, Plaintiff did not receive his medications until January 11, 2023. At that
point, he had already begun to suffer withdrawals, and it took a few days for the
medication to remediate those symptoms.

(Doc. 1 at 10-11).

Plaintiff alleges his

withdrawals began on January 8 and included body aches, headaches, sweats, chills,

vomiting, dry heaving, muscle cramping, dizziness, nausea, sleeplessness and
dehydration. He became overly depressed and had suicidal thoughts. (Doc. 1 at 11).
After completing the medical intake, Plaintiff was directed to a female sergeant
who was standing right in front of Defendant David Mitchell. He informed the two that
he had single-cell status due to his mental health, which could be easily verified.
Defendant Mitchell said something to the effect of, “we don’t do single cell here,” and he
dismissed Plaintiff with the wave of a hand. The female officer escorted Plaintiff to
building 4.
At the housing unit, Plaintiff informed Defendant Brock Morgenstern that he had
mental illness concerns, and that he had previously been ordered to be housed in a single
cell. Morgenstern told him to wait so that he could inquire about this issue. (Doc. 1 at 9).
Morgenstern then returned and told Plaintiff to go to building 5.
At building 5 Plaintiff was directed to cell B-78. He informed Defendant Lt.
McDonald that he had a medical permit for a low gallery cell due to a left knee injury that
made stairs excruciating for him. (Doc. 1 at 10). McDonald told him the permit was no
good at Pinckneyville, but that maybe later in the week he could adjust Plaintiff’s cell
location.

Plaintiff asked McDonald several times about moving, and McDonald

eventually told him the upper tier was for those who refused housing or had dayroom
restrictions. He told Plaintiff he could not move him, so he should stop asking.
Plaintiff went before the Adjustment Committee on January 17, 2023, where he
was told he had been written an inmate disciplinary report (IDR) for refusing housing.
(Doc. 1 at 12). He insisted he had not gotten prior notice of the ticket, and the committee

promised to mail a copy of the ticket but refused to delay the hearing. The committee
members were Defendants Skorch and Ridgeway. Plaintiff explained his mental health
need for a single-cell and gave an example of a previous paranoid outbreak where he
stabbed a cellmate in the face and tried to bite his finger off. (Doc. 1 at 12-13). Plaintiff
asked Skorch and Ridgeway to verify his allegations via the Offender 360 computer
program, but Skorch told him there were no single-cells or protective custody cells at
Pinckneyville. Ridgeway told Plaintiff he would check into his claims at a security
meeting that week, and if Plaintiff’s statements were true, the IDR would be thrown out.
Plaintiff was ultimately found guilty, but he does not indicate what the consequences
were from this disciplinary conviction.
Plaintiff alleges that Defendants Christine Brown, David Mitchell, and Jane Doe 1
(the mental health administrator at Pinckneyville) created and enforced policies that
deprived Plaintiff and others of the IDOC facilities and of prescribed psychiatric and
medical protections.
He identified enumerated claims that include: Eighth Amendment cruel and
unusual punishment, First Amendment retaliation, and a claim of intentional infliction
of emotional distress against all defendants.

He also included Americans with

Disabilities Act (ADA) and Rehabilitation Act claims. (Doc. 1 at 19-20). He alleges he has
mental and physical disabilities that significantly limit one or more of his life activities,
and he alleges defendants failed to accommodate these disabilities.
Based on the allegations in the Complaint, the Court will designate the following
claims:

Count 1:

Eighth Amendment deliberate indifference claim against
Jane Doe 2 for failing to ensure that Plaintiff’s medications
were continued;

Count 2:

Eighth Amendment cruel and unusual punishment claim
against Defendants Mitchell and McDonald for refusing to
house Plaintiff in a cell that met his needs;

Count 3:

First Amendment retaliation claim against Defendants
Skorch and Ridgeway for allowing Plaintiff to be
disciplined over his requests for single-cell housing;

Count 4:

Intentional Infliction of Emotional Distress against all
Defendants;

Count 5:

ADA/RA claim against IDOC for failing to accommodate
Plaintiff’s disabilities.

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. Any claim that is mentioned
in the Complaint but not addressed in this Order is considered dismissed without
prejudice as inadequately pled under Twombly. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007) (an action fails to state a claim upon which relief can be granted if it does
not plead “enough facts to state a claim that is plausible on its face”).
Preliminary Dismissals
Plaintiff tries to lump Defendants Christine Brown (the healthcare administrator)
and Jane Doe 1 (the mental health administrator) in to his Eighth Amendment cruel and
unusual punishment claims without describing how they personally played a role in an
act that harmed him.

The general responsibility to oversee the operations of a

correctional facility or to supervise its staff are not sufficient to create liability under §
1983. Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). “Section 1983 does not establish

a system of vicarious responsibility. Liability depends on each defendant’s knowledge
and actions, not on the knowledge or actions of the persons they supervise.” Id. at 59394 (internal citation omitted). Here, Plaintiff has not identified anything that these
defendants personally did other than hold a supervisory role, so his claims against them
in their individual capacities are insufficient.
The Court notes that Plaintiff also alleges that these two defendants and Defendant
Warden Mitchell created and implemented a policy that deprives inmates of needed
medical and mental health treatment. This assertion is threadbare, so it will not proceed.
The mere indication that a policy exists, without any elaboration beyond the Plaintiff’s
own experience on a single occasion is insufficient to make out a policy or practice claim.
As such, Plaintiff has not pled a valid claim against Defendants Brown or Jane Doe 1, so
they will be dismissed without prejudice.
Plaintiff also alleges that Defendant Morgenstern violated his rights, but it is not
clear what he alleges Morgenstern did that violated his rights. He listed Morgenstern
with his First Amendment retaliation claim, but there is not a sufficient factual basis. At
most, he has alleged that he asked Morgenstern for appropriate housing in a single-man
cell, Morgenstern looked into it, and then he sent Plaintiff to another cellhouse. Nothing
about this series of events suggests retaliation or foul play. Accordingly, Morgenstern is
dismissed for failure to state a claim.

Analysis
Claim 1
Plaintiff alleges that Jane Doe 2 recorded his medical and mental health needs, and
she promised to follow-up to ensure he got his medications. Despite these assurances,
there was a five-day lapse in his medication, and he experienced withdrawals for two or
three days. At this preliminary juncture, Plaintiff will be allowed to proceed against Jane
Doe 2, though ultimately this claim will turn on if Jane Doe 2 was even aware the
medications lapsed, or Plaintiff went into withdrawal.
Claim 2
Plaintiff alleges that he verbalized his need for a single-man cell directly to Warden
Mitchell, and Mitchell simply dismissed him. Inmates do not have a protected interest in
any particular living arrangement, but “[b]y prohibiting cruel and unusual punishment,
the Eighth Amendment imposes duties on prison officials to ‘provide humane conditions
of confinement’ and ‘ensure that inmates receive adequate food, clothing, shelter, and
medical care.’” Thomas v. Blackard, 2 F.4th 716, 719 (7th Cir. 2021). Courts have also
acknowledged the possibility that the “need for mental illness to be treated could
certainly be considered a serious medical need.” Sanville v. McCaughtry, 266 F.3d 724, 734
(7th Cir. 2001). At this early juncture, Plaintiff’s allegation that Mitchell blatantly refused
to consider his needs based on his serious mental illness might be sufficient to make out
an Eighth Amendment claim.
Plaintiff also alleges that Defendant McDonald denied him adequate housing
because he placed him in a cell that was located on a high gallery even though he had a

permit from his last prison for a low gallery cell. Specifically, he claims he told McDonald
that he had a prior knee injury which made ascending the stairs excruciatingly painful.
This claim presents a much closer call than the allegations against Mitchell. Again,
inmates are not entitled to demand specific housing. Plaintiff alleges the stairs were
painful, but he does not allege he was unable to ascend and descend, nor does he describe
how it actually went for him to live in this location. For example, he does not allege that
McDonald watched him struggle with the stairs in pain and refused assistance. See e.g.,
Salley v. Parker, 2022 WL 2952818 (N.D. Ill. July 26, 2022) (finding that a medical permit
did not establish a serious medical need, and could not, without more, establish
deliberate indifference based on a second-floor housing assignment). Ultimately, this
claim will depend on a fact-specific analysis, but at this preliminary juncture it may
proceed against McDonald.
Claim 3
Plaintiff alleges that Defendants Ridgeway and Skorch retaliated against him by
finding him guilty of the IDR for refusing housing that was based upon his verbal
requests for a single cell. 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). To
state a retaliation claim, a plaintiff must allege that “(1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation likely to deter such activity; and
(3) the First Amendment activity was at least a motivating factor in the decision to impose
the deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir. 2014). “A complaint

states a claim for retaliation when it sets forth ‘a chronology of events from which
retaliation may plausibly be inferred.’” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir.
2000) (citation omitted). Although Ridgeway and Skorch did not issue the disciplinary
ticket, Plaintiff alleges that he fully informed them of his reasons for opposing housing
and that they still found him guilty of the ticket. The allegations in the Complaint are
sufficient to proceed against Ridgeway and Skorch on a theory of retaliation at this early
juncture.
Claim 4
Plaintiff will be allowed to proceed on his state law claim of intentional infliction
of emotional distress only against the parties for whom other claims will proceed.
Accordingly, this claim may proceed against Defendants Jane Doe 2, David Mitchell,
McDonald, Ridgeway and Skorch.

By contrast, this Court declines to exercise

supplemental jurisdiction over any such claim against the other defendants for whom
there are no other federal claims. 28 U.S.C. § 1367.
Claim 5
At the end of his complaint, Plaintiff tacks on allegations that his rights under the
Americans with Disabilities (ADA) and Rehabilitation Act (RA) have been violated by
the defendants, and the IDOCs, actions. (Doc. 1 at 19-20). To state a prima facie case of
discrimination under both the ADA and the RA, a plaintiff must plead sufficient facts to
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 further 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). The ADA applies to state prisons, as
all such institutions receive federal funds. Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206
(1998).
Under Title II of the ADA regarding discrimination in public accommodations,
“qualified individual with a disability” means “an individual with a disability who, with
or without...the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities
provided by a public entity.” 42 U.S.C. § 12131(2). A “disability” includes “a physical or
mental impairment that substantially limits one or more major life activities of such
individual.” 42 U.S.C. § 12102(1)(A).
Plaintiff does not specify whether these claims are about his mental health needs
or his knee injury, or both. He also has not made it particularly clear what his current
housing situation is, or how it meets or fails to meet his needs. While it is possible that
Plaintiff has identified conditions that might allow for an ADA or RA claim, his complaint
is too vague to sustain the claim as initially pled. Accordingly, any claim related to the
ADA or RA is dismissed without prejudice, and the Illinois Department of Corrections is
dismissed as a defendant in association with either of these claims.
Disposition
IT IS HEREBY ORDERED THAT Claim 1 of the Complaint (Doc. 1) survives
against Defendant Jane Doe 2; Claim 2 survives against Defendants Mitchell and

McDonald; Claim 3 survives against Ridgeway and Skorch; and Claim 4 survives against
Jane Doe 2, Mitchell, McDonald, Ridgeway and Skorch. By contrast, all claims against all
other defendants are dismissed without prejudice for failure to state a claim, and the
Clerk of Court is DIRECTED to TERMINATE Defendants Christine Brown, IDOC, Brock
Morgenstern, and Jane Doe # 1.
The Clerk of Court is DIRECTED to prepare for Defendants: David Mitchell, Lt.
McDonald, Brandon Ridgeway, and Diane Skorch: (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 (Doc. 1), and this
Memorandum and Order to Defendants’ 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 Defendant, and the Court will require Defendant to pay
the full costs of formal service, to the extent authorized by the Federal Rules of Civil
Procedure.
If a Defendant cannot 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 Administrative Order No. 244, Defendants need only respond to the issues
stated in this Merits Review Order.
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,
regardless of whether his application to proceed in forma pauperis was granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk
of Court and each opposing party of any address changes; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later
than 14 days after a transfer or other change of 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 failure to prosecute. FED. R. CIV. P. 41(b).
The Clerk of Court is DIRECTED to enter the standard HIPAA Order in this case
because it will involve the exchange of medical records.
IT IS SO ORDERED.
Dated: November 13, 2023
/s David W. Dugan
________________________
DAVID W. DUGAN
United States District Judge

NOTICE TO PLAINTIFF
The Court will take the necessary steps to notify the appropriate defendants of your
lawsuit and serve them with a copy of your complaint. After service has been achieved,
the defendants will enter their appearance and file an Answer to the complaint. It will
likely take at least 60 days from the date of this Order to receive the defendants’ Answers,
but it is entirely possible that it will take 90 days or more. When all of the defendants
have filed Answers, the Court will enter a Scheduling Order containing important
information on deadlines, discovery, and procedures. Plaintiff is advised to wait until
counsel has appeared for the defendants before filing any motions, to give the defendants
notice and an opportunity to respond to those motions. Motions filed before defendants’
counsel has filed an appearance will generally be denied as premature. Plaintiff need not
submit any evidence to the Court at his time, unless otherwise directed by the Court.

The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles
that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but
it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening
only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some
relief. At trial, he will need to prove by a preponderance of evidence that the facts alleged
actually occurred and that those facts satisfy the legal requirements for recovery. Trial is
the highest and most difficult of hurdles for any Plaintiff to clear.