Willmon v. Porter County Indiana et al
Filing
43
OPINION AND ORDER GRANTING 26 MOTION to Dismiss (Partial Motion to Dismiss) filed by Cashawn Walker, Porter County Indiana, Officer Barbara Candiano, Officer Paul Sciarra, John J Widup, J Ryan Taylor, Greg Kasten, Dawn Murray, Porter County Indiana Sheriff's Department, David Lain, Sgt David Cavanuaugh, Officer Ron Gaydos, Officer David Lippens.Counts I, II, IV and V of the First Amended Complaint are DISMISSED. Signed by Judge Rudy Lozano on 7/10/13. (kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BROOKS C.C. WILLMON,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
PORTER COUNTY, IN, et al.
Defendants.
NO. 2:12-CV-278
OPINION AND ORDER
This matter is before the Court on Defendants’ Partial Motion
to Dismiss, filed by Defendants Porter County, Indiana, Porter
County Sheriff Department, Sheriff David Lain, Warden John J.
Widup, Lt. J. Ryan Taylor, Sgt. Greg Kasten, Sgt. David Cavanaugh,
Officer David Lippens, Officer Paul Sciarra, Officer Ron Gaydos,
Officer Barbara Candiano, Medical Staffer Dawn Murray, and Medical
Staffer Cashawn Walker (“Porter County Defendants”), on November
12, 2012.
Also before this Court is Kim House’s Motion to Join
Defendants’ Partial Motion to Dismiss, filed on December 06, 2012.
Upon due consideration, the motion to join is GRANTED.
For the
reasons set forth below, the partial motion to dismiss is GRANTED.
Counts
I,
DISMISSED.
II,
IV
and
V
of
the
First
Amended
Complaint
are
BACKGROUND
On
July
20,
2012,
the
Plaintiff,
Brooks
C.C.
Willmon
(“Willmon”), filed a Complaint against the Porter County Defendants
and Kim House (“House”).
According to the Complaint, Willmon was
confined at the Porter County, Indiana jail from approximately
April l, 2010, until August 6, 2010.
The Complaint alleged that Willmon, a total paraplegic from
the waist down, required a wheelchair for mobility.
He also
required that his wheelchair be padded and that his bedding be
appropriate for prevention of the development of pressure sores.
He needed certain medical and sanitary supplies to eliminate,
absorb and control bodily wastes.
And, he needed prescription
medications for both physical and mental health.
Additionally, the Complaint alleged that the jail knowingly
accepted prisoners requiring levels of medical care that the jail
either
could
intentionally
not
or
shredded
would
the
not
padding
provide,
and
that
cushion
jail
of
staff
Willmon’s
wheelchair and refused to either provide a new cushion or allow him
to use a new cushion provided by his wife.
The Complaint further
alleged that the tires of Willmon’s wheelchair were intentionally
shredded as a punishment and that the jail refused to repair or
replace his wheelchair.
According to the Complaint, Willmon was
-2-
also confined in a padded cell, withdrawn “cold turkey” from his
anti-depressant and anti-psychotic medications, and not given these
medications while at the jail.
Willmon was allegedly restricted
access to urinary catheters and adult diapers for extended periods
of time and, because of these restrictions, he would soil himself.
When he had soiled himself, he was prevented from leaving his cell
for meals
and he would then be subject to a 23-hour lockdown for
failing to leave his cell for a scheduled meal.
As a result of the
jail’s mismanagement of Willmon’s conditions, he developed pressure
sores and those sores became infected.
The Complaint alleged that
the acts described above (as well as other acts that have not been
mentioned in this Order) were the result of deliberate on-going
policies,
alleged,
procedures,
pursuant
to
customs
42
and
U.S.C.
practices.
section
1983,
The
Complaint
violations
of
Willmon’s Eighth and Fourteenth Amendment rights, the Americans
with Disabilities Act, and conspiracy.
The Complaint also alleged
conspiracy pursuant to 42 U.S.C. § 1985(3) and sought attorneys’
fees pursuant to 42 U.S.C. § 1988.
A partial motion to dismiss was filed on September 20, 2012.
In response to the motion to dismiss, Willmon filed his First
Amended Complaint.
The First Amended Complaint contains each of
the aforementioned factual allegations and alleges seven separate
counts.
The instant motion seeks to dismiss only Counts I, II, IV
-3-
and V of the First Amended Complaint.1
Count I of the First Amended Complaint alleges a violation of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq.
(DE 26 at 20-24).
More specifically, it alleges that the
jail failed to comply with the ADA design standards set forth in 28
C.F.R. Part 36.401.
Count II alleges that the jail failed to meet the access
requirements of the Rehabilitation Act, in violation of 29 U.S.C.
§ 794.
(DE 25 at 25-26).
Count II alleges largely the same
alleged design defects as Count I.
(DE 25 at ¶ 26).
Counts IV and V both allege conspiracy.
Count IV is brought
pursuant to 42 U.S.C. section 1983 and alleges that the Defendants
conspired to violate Willmon’s rights under the Fourteenth and
Eighth
Amendments
punishment.
by
subjecting
him
to
cruel
and
unusual
The First Amended Complaint alleges twenty different
ways in which the Defendants allegedly conspired against Willmon.
Count V alleges a similar conspiracy in violation of 42 U.S.C. §
1985(3).
Willmon filed a response to the instant motion on December 21,
2012.
Willmon concedes that Count V should be dismissed.2
Willmon
1
Because the instant motion does not seek dismissal of Counts
III, VI or VII, those Counts are not discussed in this Order.
2
Defendants note that disabled persons are not a class protected
by 42 U.S.C. § 1985(3). See D’Amato v. Wisconsin Gas Co., 760
F.2d 1474 (7th Cir. 1985). Because Plaintiff concedes that Count
V should be dismissed, this Order contains no further discussion
-4-
also concedes that, to the extent Counts I and II allege claims
related to the physical design of the jail, his allegations are
time-barred and should be dismissed.
Willmon asserts that, in all
other respects, the motion to dismiss should be denied.
brief was filed on January 11, 2013.
A reply
The instant motion is fully
briefed and ripe for adjudication.
DISCUSSION
In determining the propriety of dismissal under Federal Rule
of Civil Procedure 12(b)(6), the Court must accept all facts
alleged in the complaint as true and draw all reasonable inferences
in the light most favorable to the plaintiff.
272 F.3d 519, 520 (7th Cir. 2001).
Johnson v. Rivera,
A complaint is not required to
contain detailed factual allegations, but it is not enough merely
that there might be some conceivable set of facts that entitles the
plaintiff to relief.
Bell Atlantic Corp. v. Twombly, 127 S.Ct.
1955, 1964-65 (2007), abrogating in part Conley v. Gibson, 355 U.S.
41, 45-46 (1957). A plaintiff has an obligation under Rule 8(a)(2)
to provide the grounds of his entitlement to relief, which requires
more than labels and conclusions.
Id. at 1965.
A Rule 12(b)(6)
motion to dismiss should be granted if the complaint fails to
include sufficient facts to state a claim for relief that is
of Count V.
-5-
plausible on its face.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009).
Factual allegations, taken as true, must be enough to
raise
right
a
to
relief
above
the
speculative
level.
Id.
Moreover, a plaintiff may plead himself out of court if the
complaint includes allegations that show he cannot possibly be
entitled to the relief sought.
Jefferson v. Ambroz, 90 F.3d 1291,
1296-97 (7th Cir. 1996).
Willmon’s ADA and Rehabilitation Act Allegations in Counts I and II
Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.
42 U.S.C. § 12132.
Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206
In
(1998),
the Court determined that Title II of the ADA applies to inmates in
state prisons.
Section 504 of the Rehabilitation Act is codified at 29 U.S.C.
§ 794 and provides that “[n]o otherwise qualified individual with
a
disability
.
.
.
shall,
solely
by
reason
of
his
or
her
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.”
794(a).
29 U.S.C. §
The requirements of the two statutes are more or less the
-6-
same, except that the Rehabilitation Act requires that the program
or activity at issue receive Federal financial assistance.
See
Jaros v. Illinois Department of Corrections, 684 F.3d 667, 671-72
(7th Cir. 2012). Accordingly, this Court will consider the ADA and
Rehabilitation Act claims together.
Claims under both Title II of the ADA and the Rehabilitation
Act brought in a federal court sitting in Indiana are governed by
Indiana’s two year statute of limitations for personal injury
claims.
Ind. Code § 34-11-2-4; Soignier v. Am. Bd. of Plastic
Surgery, 92 F.3d 547, 551 n.3 (7th Cir. 1996); Conley v. Village of
Bedford Park, 215 F.3d 703, 710, n.5 (7th Cir. 2000)(noting that a
claim brought in federal court under the Rehabilitation Act is
governed by the statute of limitations for personal injury claims
of the state in which the federal court is sitting).
As noted
previously, Willmon concedes that all allegations in Counts I and
II based on the physical design of the jail are time barred.
34 at 5).
(DE
Normally, this would be the end of the Court’s inquiry,
but the parties do not seem to agree as to the scope of the claims
in Counts I and II.
The Defendants believe that the physical
design claims are the only claims alleged in Counts I and II.
Plaintiff, however, contends that Counts I and II allege claims
based on both discriminatory design and discriminatory acts, and
that
the
dismissed.
claims
based
on
discriminatory
(DE 24 at 2).
-7-
acts
should
not
be
Counts I and II of the First Amended Complaint mimic one
another closely.
In Count I, paragraph 24 provides that “PCJ
inmate facilities violate and have violated since opening the
provisions of the ADA regarding accessibility by mobility impaired
individuals in the following regards” and then sets forth 13
subparagraphs that support that assertion.
(DE 25 at ¶ 24).
Similarly, paragraph 26 of the First Amended Complaint, found in
Count
II,
alleges
that
“The
PCJ
is
subject
to
the
federal
Rehabilitation Act and has violated the Act by constructing a new
jail
that
fails
to
meet
the
access
requirements
of
the
Rehabilitation Act regarding the mobility impaired, and engaging in
the following other acts or omissions, which are on-going...” (DE
25 at ¶ 26).
The First Amended Complaint then sets forth 12
subparagraphs in support of this assertion.
Some of those
subparagraphs allege acts rather than design defects, including a
failure to provide training to personnel on how to assist in
transferring mobility impaired patients and making wheelchair-bound
inmates wait in medical isolation until last before receiving
treatment.
The structure of the First Amended Complaint suggests
that these acts are the result of the facility not complying with
the ADA’s design standards or the Rehabilitation Act’s access
requirements.
Accordingly, this Court concurs with the Defendants
and finds that Counts I and II, as drafted, allege only claims
based on a failure to comply with the ADA’s design standards and
-8-
the
Rehabilitation
Act’s
physical
access
requirements,
respectively.
The acts mentioned in the supporting subparagraphs of Counts
I and II of the First Amended Complaint are, at least primarily,
based on inadequate medical treatment. As the Defendants point out
in their motion, the Seventh Circuit has held that claims for
inadequate medical treatment are improper under the ADA. See Resel
v. Fox, 2001 WL 1654524 (“[A] prison official does not violate the
ADA when failing ‘to attend to the medical needs of ... disabled
prisoners.’”);
Bryant
v.
Madigan,
84
F.3d
246
(7th
Cir.
1996)(noting that the plaintiff was complaining about incompetent
medical
treatment,
not
being
excluded
from
prison
services,
programs or activities, and that “[t]he ADA does not create a
remedy for medical malpractice.”); Perrey v. Donahue, 2007 WL
4277621 (N.D. Ind. 2007)(noting that the plaintiff’s claim based on
denial of access to medical care and treatment was “not an ADA
claim” but rather an Eighth Amendment claim).
A claim based on
discrimination might be cognizable, but Counts I and II do not
appear to allege discrimination.
Accordingly, this Court finds
that Counts I and II must be dismissed in their entirety.
There may be facts alleged in the First Amended Complaint that
could support viable claims under the ADA or the Rehabilitation Act
other than claims based on failure to comply with the ADA’s design
standards or the Rehabilitation Act’s access requirements.
-9-
As
currently drafted, this Court does not find that Count I or II of
the First Amended Complaint contain any such claims. This Court is
not inclined to make Plaintiff's arguments for him.
King,
167
F.3d
347,
354
(7th
Cir.
1999)("It
is
Vaughn v.
not
the
responsibility of this court to make arguments for the parties.").
If, after consideration of the Seventh Circuit’s position with
regards to ADA claims based on inadequate medical treatment, the
Plaintiff feels that an ADA or Rehabilitation Act claim not based
on a violation of the ADA’s design standards or the Rehabilitation
Act’s physical access requirements remains viable, he may seek
leave to amend his complaint a second time.
to
amend
should
be
accompanied
by
Any motion for leave
citations
to
case
law
demonstrating that allowing the amendment would not be futile.
Bogie v. Rosenberg, 705 F.3d 603 (7th Cir. 2013)(“Leave to amend
need not be granted, however, if it is clear that any amendment
would be futile.”); see also Arazie v. Mullane, 2 F.3d 1456, 1464
(7th Cir. 1993).
Willmon’s claim that Defendants conspired to violate his rights
under the Eighth and Fourteenth Amendments
Count IV of the First Amended Complaint alleges that the
Defendants:
conspired to deprive Brooks of his right to
competent medical assessment and evaluation,
competent
medical
treatment,
prescribed
antibiotic therapy, prescribed anti-psychotic
-10-
therapy,
necessary
sanitary
supplies,
necessary
urinary
catheters,
appropriate
wheelchair
cushioning,
appropriate
antipressure
sore
bedding,
repair
of
his
wheelchair destroyed by Jail staff, a safe
jail environment, enforcing punitive 23-hour
lock downs due to disability, punitive
corporal punishment, humiliating treatment of
a person with disabilities, and the foregoing
denials of service...
(De 25 at
¶ 78).
Count IV of the First Amended Complaint further
alleges that the Defendants:
colluded to be deliberately indifferent to the
medically obvious need paraplegics such as
Brooks’
presented
for
the
evaluation,
assessment, and treatment of medical needs,
pressure sores, urinary tract infections,
weight loss, medically necessary antibiotics,
catheters, diapers, prescribed anti-psychotic
and
anti-anxiety
medications,
and
the
necessity of providing medically necessary
padding and other techniques and procedures to
prevent the development of pressure sores.
(DE 25 at ¶ 80).
To prove a conspiracy under section 1983, a plaintiff must
show that (1) a state official or private individual reached an
understanding to deprive plaintiff of his constitutional rights;
and
(2)
those
individuals
were
wilful
activity with the State or its agents.
577, 583 (7th Cir. 2011).
plaintiffs
to
plead
participants
in
joint
Logan v. Wakins, 644 F.3d
The Seventh Circuit has long required
something
more
than
bare
allegations
of
conspiracy. See Ryan v. Mary Immaculate Queen Center, 188 F.3d 857
(7th Cir. 1999)(holding that a complaint alleging conspiracy but
-11-
lacking an indication of when it was formed, what its terms were,
and what role the defendant played did not satisfy Rule 8).
This
heightened pleading requirement for conspiracy was “a rare example
of a judicially imposed requirement to plead facts in a complaint
governed by Rule 8.”
2009).
Cooney v. Rossiter, 583 F.3d 967 (7th Cir.
But then the Court decided Twombly and Iqbal, and it is it
now clear that “determining whether a complaint states a plausible
claim for relief will ... be a context-specific task that requires
the reviewing court to draw on its judicial experience and common
sense.”
1950).
Cooney, 583 F.3d at 971 (citing Iqbal, 129 S. Ct. at
The Seventh Circuit in Cooney dismissed a conspiracy claim
noting that it was detailed in some respects but “bereft of any
suggestion, beyond a bar conclusion, that the remaining defendants
were leagued in a conspiracy with the dismissed defendants.”
Cooney, 583 F.3d at 971.
In Roehl v. Marrilees, the Northern District of Illinois
likewise
dismissed
a
conspiracy
established in Iqbal and Twombly.
claim
under
the
standard
Roehl v. Merrilees, No.
11 C
4886, 2012 WL 1192093 (N.D. Ill. April 10, 2012). The complaint at
issue in Roehl included allegations regarding the parties, purpose
and
date
of
the
conspiracy
but
did
not
allege
“facts
or
circumstances upon which either an express or implied agreement
between Defendants could be inferred above the speculative level.”
Id. at *8 (internal quotations omitted).
-12-
The Court noted that,
even before Iqbal and Twombly, bare allegations of conspiracy were
insufficient, and that, under the new standard, the plaintiff would
need to “meet a high standard of plausibility.”
Id.; see also
Ennerga v. Starns, No. 10 C 5016, 2012 WL 1899331, *3 (N.D. Ill.
May 23, 2012)(dismissing a conspiracy claim under the Iqbal/Twombly
pleading standard and noting that the conspiracy allegations were
conclusory and “completely unsupported by factual allegations.”);
Lyttle v. Killakey, 528 F.Supp.2d 818
(N.D. Ill.2007)(conspiracy
claim dismissed where complaint failed “to allege any evidence,
circumstantial or direct, that would lead the Court to conclude
that the policy adopted by the City eventually led to a conspiracy
to arrest [plaintiff].”).
Plaintiff responded to the Defendants’ argument that Count IV
should be dismissed by noting that Count IV incorporates the
preceding paragraphs of the First Amended Complaint, and that those
paragraphs are “fairly specific as to time, place, and acts.”
34 at 6).
provide
(DE
Plaintiff did not discuss which paragraphs, precisely,
the
time,
place
and
acts
that
support
conspiracy, leaving it to this Court to guess.
the
alleged
Nonetheless, this
Court has reviewed the First Amended Complaint in its entirety, and
neither Count IV nor the paragraphs preceding it sufficiently
allege conspiracy under the Iqbal/Twombly standard.
The First
Amended Complaint alleges repeatedly that the acts taken were the
-13-
result of the Defendants’ policies, procedure, customs or practice.
These allegations, however, do not equate to a conspiracy.
The
allegations in Count IV itself are that the Defendants “conspired”
and “colluded,” but the mere use of these terms is no substitute
for allegations of facts or circumstances that satisfy the high
level
of
plausibility
required
under
Iqbal
and
Twombly.
Accordingly, this Court finds that the allegations in Count IV are
conclusory and must be dismissed.
CONCLUSION
For the reasons set forth above, Kim House’s Motion to Join
Defendants’ Partial Motion to Dismiss is GRANTED, and Defendants’
Partial Motion to Dismiss is GRANTED.
Counts I, II, IV and V of
the First Amended Complaint are DISMISSED.
DATED: July 10, 2013
/s/RUDY LOZANO, Judge
United States District Court
-14-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?