STROMINGER v. IDOC et al

Filing 11

ENTRY Screening Amended Complaint, Dismissing and Severing Certain Claims,and Directing Service of Process - Any claims for injunctive relief are dismissed as moot because the plaintiff is no longer confined at Wabash Valley. Claims 6 and 7 are sever ed from the amended complaint. The claims in the newly- opened actions are distinct from the claims in this action. This action, docketed as No. 1:15-cv-01654-TWP-DML shall proceed as to Claim 1, asserted against defendants Indiana Department of Co rrection and Lt. Nicholson. All other claims against all other defendants are dismissed from this action without prejudice. The clerk is designated pursuant to Fed. R. Civ. P. 4(c) to issue process to defendants Indiana Department of Correction a nd Lt. C. Nicholson in the manner specified by Rule 4(d). Process shall consist of the amended complaint filed on November 19, 2015 (docket 5), applicable forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons), and this Entry. (See order for further information). Copies to Plaintiff and Defendants via U.S. Mail. Signed by Judge Tanya Walton Pratt on 1/27/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RAYMOND STROMINGER,
Plaintiff,
vs.
INDIANA DEPT. OF CORRECTIONS, et
al.,
Defendants.

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Case No. 1:15-cv-01654-TWP-DML

Entry Screening Amended Complaint, Dismissing and Severing Certain Claims,
and Directing Service of Process
I.

Screening Amended Complaint Claims 1 through 5

The plaintiff, Raymond Strominger, is an Indiana inmate, currently confined at the
Pendleton Correctional Facility but was formerly incarcerated at the Wabash Valley Correctional
Facility (“Wabash Valley”). He is confined to a wheelchair. The incidents giving rise to the claims
in the amended complaint all occurred at Wabash Valley.
Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), the amended
complaint is subject to the screening requirement of 28 U.S.C. § 1915A(b). Pursuant to this statute,
“[a] complaint is subject to dismissal for failure to state a claim if the allegations, taken as true,
show that plaintiff is not entitled to relief.” Jones v. Bock, 127 S. Ct. 910, 921 (2007). To survive
a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face. . . . A claim has facial plausibility 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, 129 S.Ct. 1937, 1949 (2009) (quotations
omitted).

The amended complaint names the following defendants: 1) the Indiana Department of
Correction; 2) Lt. C. Nicholson; 3) Physical Plant Director G. Eaton; 4) ADA Coordinator B.
Kirton; 5) Unit Team Manager J. Snyder; 6) Safety Hazard Manager J. Hendrix; 7) ACA
Coordinator J. Lytle; 8) Lt. L. Petty; 9) Caseworker D. Thompson; 10) Executive Assistant of
Legal Services L. Hoefling; 11) Sgt. Cobb; 12) Sgt. Wilson; 13) Sgt. Joyner; 14) Major D. Russell;
15) Dr. S. Byrd; 16) Officer Harris; and 17) two John Does. The individual defendants are sued in
their individual and official capacities.
The plaintiff alleges that the defendants have failed to reasonably accommodate him for
his disabilities in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. (the
“ADA”), and the Rehabilitation Act, 29 U.S.C. § 794 (“RA”). He also alleges that his Eighth
Amendment and Fourteenth Amendment rights have been violated.1 Those claims are brought
within the context of 42 U.S.C. § 1983. The plaintiff also seeks injunctive relief and compensatory
and punitive damages for physical and emotional injuries.
Any claims for injunctive relief are dismissed as moot because the plaintiff is no longer
confined at Wabash Valley. Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 670 n. 3. (7th Cir.
2012).
This action shall proceed with respect to Claim 1: plaintiff’s claim that he was denied
access to outdoor recreation for over 10 months, beginning in December of 2013, because Lt. C.
Nicholson failed to timely and properly repair a wheelchair ramp. The plaintiff alleges that these
circumstances violated his rights under the ADA and RA. Relief available under the ADA and RA
“is coextensive.” Jaros, 684 F.3d at 671. For the present, however, the ADA and RA claims shall

1

The plaintiff mentions the First Amendment on page 6 of the amended complaint, but no allegations
support a First Amendment violation. Any alleged First Amendment claim is dismissed for failure to
state a claim upon which relief can be granted.

proceed against the Indiana Department of Correction. The plaintiff also alleges that his Eighth
Amendment and Fourteenth Amendment rights have been violated. The constitutional claims for
damages shall proceed against Lt. C. Nicholson in his individual capacity only. Id. at 670. (the
ADA does not provide a cause of action against individual employees). The Court will direct
issuance of process to the defendants for this claim in Part IV of this Entry.
In Claim 2, the plaintiff alleges that he was denied a shower that had a secured mounted
chair from April 17, 2014, until April 22, 2014. He was given a plastic shower chair instead, which
he alleges violated the ADA and RA. He alleges that he notified defendants Snyder, Petty,
Thompson, and Kirton of his safety concerns. This claim is dismissed as frivolous and for failure
to state a claim upon which relief can be granted especially in light of his prior litigation,
because this six-day circumstance fails to rise to the level of a constitutional violation or intentional
discrimination under the ADA or RA. See Strominger v. Brock, No. 14-1310, 592 Fed.Appx. 508,
511 (7th Cir. Nov. 12, 2014) (giving Strominger a plastic chair for use in the shower for 34 days
and again for 133 days did not constitute the denial of minimal civilized measure of life’s
necessities, he merely “did not receive the level of accommodation that he wished.”).
In Claim 3, the plaintiff alleges that he was placed in a non-handicapped cell from April
15, 2014, until April 22, 2014, which he alleges failed to make reasonable accommodations for his
disability. The toilet sink combo was allegedly too low to roll his wheelchair under it without
bruising his knees and feet, and it was difficult to transfer to the toilet because there was no grip
bar. This claim is dismissed for failure to state a claim upon which relief can be granted
because the temporary, week long duration is not sufficient to rise to the level of a denial of the
minimal civilized measure of life’s necessities under the Eighth Amendment. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (to be sufficiently objectively serious, a plaintiff must allege a

denial of “the minimal civilized measure of life’s necessities” to state an Eighth Amendment
claim) (internal quotation omitted). The plaintiff was able to use the facilities in his cell although
with more difficulty. In addition, the plaintiff alleges no facts that would allow an inference that
the temporary placement in the cell was the result of intentional discrimination sufficient to state
a claim under the ADA or RA. See Morris v. Kingston, 368 Fed.Appx. 686, 689 (7th Cir. March
10, 2010) (“Title II [of the ADA] only provides for damages if a public official intentionally
discriminates because of disability.”).
In Claim 4, the plaintiff alleges that he was again, from May 26, 2015, through July 1,
2015, given a plastic chair to use in the shower. This claim is dismissed for failure to state a
claim upon which relief can be granted for the same reasons Claim 2 is dismissed in this Entry.
This is another temporary circumstance that did not deny the plaintiff any of life’s necessities. See
Strominger, 592 Fed.Appx. at 511 (133 days of shower with plastic chair was not unconstitutional
nor did it violate the ADA or RA).
In Claim 5, the plaintiff alleges that from May 26, 2015, through July 1, 2015, he was
placed in a cell that had a toilet sink combo which was unsafe for him. This claim is dismissed for
failure to state a claim upon which relief can be granted for the same reasons that Claim 3 is
dismissed.
No partial final judgment shall issue as to the claims dismissed in this Entry.
II.

Severance of Claims 6 and 7

A. Legal Standard
In George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007), the Court of Appeals explained that
“[u]nrelated claims against different defendants belong in different suits.” Rule 20 allows joinder
of multiple defendants only when the allegations against them involve the same transaction or

occurrence and common questions of fact and law. Claims 6 and 7 do not involve the same
occurrences or common questions of fact and involve defendants different than the other claims.
In such a situation, “[t]he court may . . . sever any claim against a party.” FED. R. CIV. P.
21. Generally, if a district court finds that a plaintiff has misjoined parties, the court should sever
those parties or claims, allowing those grievances to continue in spin-off actions, rather than
dismiss them. Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000). That is the remedy
which will be applied to the amended complaint. Two new actions will be opened.
B. Claim 6
Plaintiff’s Claim 6 alleges that on May 26, 2015, he was to be transported in a nonwheelchair accessible van. When the plaintiff was unable to get himself into the van, Sgt. Wilson
ordered Sgt. Cobb, Officer Harris, and two John Doe officers to put the plaintiff in the van. Sgt.
Cobb, Officer Harris, and the two unnamed officers allegedly used excessive force when loading
the plaintiff into the van, causing extreme pain in his wrists, shoulders, and chest. In response to a
grievance filed later, Major Russell responded by stating that there was no record stating that the
plaintiff required a wheelchair accessible van to be transported. The plaintiff alleges that not
providing him transportation in a wheelchair accessible van violated his right to reasonable
accommodations under the ADA and RA. He also alleges that the individual officers subjected
him to excessive use of physical force.
Claim 6 is severed from the amended complaint.
This claim will be screened after the filing fee issues are resolved in the new action.
To effectuate the severance of Claim 6, a new civil action from the Indianapolis Division
shall be opened, consistent with the following:
1.

Raymond Strominger shall be the plaintiff in the newly opened action.

2.

The Nature of Suit in the newly opened action shall be 555.

3.

The Cause of Action of the newly opened action shall be 42:1983pr.

4.

The judicial assignment shall be by random draw.

5.

The amended complaint in this action (docket 5) shall be filed and re-docketed as

the complaint in the newly opened action.
6.

A copy of this Entry shall be docketed in the newly opened action.

7.

This action and the newly-opened actions shall be shown with each other as linked

actions.
8.

The defendants in the newly opened action shall be Sgt. Wilson, Sgt. Cobb, Officer

Harris, two John Doe officers, Major Russell, and the Indiana Department of Correction.
C. Claim 7
Plaintiff’s Claim 7 alleges that when he was delivered to the CCU on or about May 26,
2015, he asked to be seen by medical personnel. The plaintiff saw Dr. Byrd on June 2, 2015,
however, Dr. Byrd refused to listen to the plaintiff, would not order x-rays of his wrists, and told
the plaintiff that nothing was wrong with him. The plaintiff alleges that Dr. Byrd deliberately
denied him adequate medical treatment.
Claim 7 is severed from the amended complaint.
This claim will be screened after the filing fee issues are resolved in the new action.
To effectuate the severance of Claim 7, a new civil action from the Indianapolis Division
shall be opened, consistent with the following:
1.

Raymond Strominger shall be the plaintiff in the newly opened action.

2.

The Nature of Suit in the newly opened action shall be 555.

3.

The Cause of Action of the newly opened action shall be 42:1983pr.

4.

The judicial assignment shall be by random draw.

5.

The amended complaint in this action (docket 5) shall be filed and re-docketed as

the complaint in the newly opened action.
6.

A copy of this Entry shall be docketed in the newly opened action.

7.

This action and the newly-opened actions shall be shown with each other as linked

actions.
8.

The defendant in the newly opened action shall be Dr. Byrd.
III. Claim 1 Shall Proceed in this Action

The claims in the newly-opened actions are distinct from the claims in this action.
This action, docketed as No. 1:15-cv-01654-TWP-DML shall proceed as to Claim 1,
asserted against defendants Indiana Department of Correction and Lt. Nicholson.
All other claims against all other defendants are dismissed from this action without
prejudice.
IV.

Service of Process as to Claim 1

The clerk is designated pursuant to Fed. R. Civ. P. 4(c) to issue process to defendants
Indiana Department of Correction and Lt. C. Nicholson in the manner specified by Rule 4(d).
Process shall consist of the amended complaint filed on November 19, 2015 (docket 5), applicable
forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service
of Summons), and this Entry.
The clerk shall update the docket to reflect the dismissal of all defendants other than the
Indiana Department of Correction and Lt. C. Nicholson.
IT IS SO ORDERED.
Date: 1/27/2016

Distribution:
Raymond Strominger
160814
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064
Indiana Department of Correction
302 W. Washington Street, Rm. E-334
Indianapolis, IN 46204
Lt. C. Nicholson
Wabash Valley Correctional Facility
6908 S. Old U.S. Highway 41
P.O. Box 500
Carlisle, IN 47838-500
NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS IN ADDITION TO DOCKETING AND DISTRIBUTION.