Sustaita v. Ford

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ANTONIO SUSTAITA, )

)

Plaintiff, )

)

v. ) No.: 19-4150-MMM

)

JOHN BALDWIN, et al., )

)

Defendants. )

MERIT REVIEW- SECOND AMENDED

COMPLAINT

Plaintiff, proceeding pro se at the Hill Correctional Center (Hill), files a second amended

complaint under 42 U.S.C. § 1983 against the State of Illinois, the Illinois Department of

Corrections (“IDOC”), IDOC Director John Baldwin, Drs. Bautista and Garcia, Nurse

Practitioner Steele, Lt. Ford and Hill Warden Stephanie Dorethy. Plaintiff alleges the

unconstitutional use of force, deliberate indifference, retaliation, and state law claims of assault

and battery. Plaintiff’s two prior complaints were dismissed, primarily for his attempts to join

unrelated claims against unrelated individuals.

The Court now proceeds to “screen” Plaintiff’s second amended complaint, as required

by 28 U.S.C. § 1915, and through such process to identify and dismiss any legally insufficient

claim, or the entire action if warranted. In reviewing the second amended complaint, the court

accepts the factual allegations as true, liberally construing them in the plaintiff’s favor. Turley v.

Rednour, 729 F.3d 645, 649 (7th Cir. 2013). While the pleading standard does not require

“detailed factual allegations”, it requires “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Enough facts must be provided to “state a claim for

relief that is plausible on its face.” Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(citation

omitted).

Plaintiff pleads that “on June 6th,” Officer Tracey, not a party, removed him from his cell

so he could be transferred to the Danville Correctional Center (“Danville”)on a court writ. While

Plaintiff does not identify the year of this event, reading his complaint in context, it appears that

the referenced date is June 6, 2018. When Officer Tracey attempted to cuff Plaintiff behind his

back, Plaintiff indicated that he had a front cuffing permit as he had recently undergone shoulder

surgery. The Officer checked and determined this to be true, cuffing Plaintiff from the front. As

the two walked through the building, they were met by Defendant Lieutenant Ford who asked

why Plaintiff was cuffed from the front. Officer Tracey and Plaintiff both explained that Plaintiff

had a front cuffing permit. Notwithstanding, Defendant Ford forcibly cuffed Plaintiff from the

back, reinjuring his shoulder and causing Plaintiff to fall to his knees in pain. When Plaintiff

requested medical attention, Defendant Ford refused it. Plaintiff was thereafter escorted out of

the building and transferred to Danville.

When Plaintiff arrived at Danville, he requested medical care which was likewise

refused. Plaintiff does not identify any Danville staff from whom he requested treatment, does

not plead the particulars of any such request and does not name Danville staff as Defendants.

On June 20, 2018, Plaintiff returned to Hill. There, he requested medical treatment of

various individuals which was either delayed or denied. Plaintiff believes the lack of care was

caused, in part, by a Wexford policy requiring that a prisoner file three sick call requests before

being seen by a physician. Plaintiff goes on to name several individuals, including Defendant

Doctors Bautista and Garcia, as well as Nurse Practitioner Steele. Plaintiff also asserts that NP

Steele retaliated against him, and that Defendant Warden Dorethy did nothing, even though she

“knew” from reading Plaintiff’s complaints of the retaliation, deliberate indifference, and

excessesive use of force.

While Plaintiff has successfully pled claims against Defendant Ford, he goes on to assert

unrelated claims against Defendants Bautista, Garcia and Steele, as well as an unrelated Monell

claim against Wexford.1 These later events occurred on or after June 20, 2018 and are unrelated

to the June 6, 2018 f excessive force and deliberate indifference allegedly exerted by Defendant

Ford. The Court has, in fact, painstakingly instructed Plaintiff in two prior merit review orders

that he is not to join defendants in one suit unless all of the claims arise out of a single transaction

and contain a question of fact or law common to all the defendants. Fed.R.Civ.P. 20(a); Davis v.

Harding, 12-cv-559, 2013 WL 6441027, at *2 (W.D. Wis. Dec. 9, 2013). Those claims which are

unrelated to the allegations against Defendant Ford are dismissed without prejudice to Plaintiff

asserting them in a separate action.

Plaintiff also pleads unrelated claims against Warden Dorethy. The only claim which

might be relevant here, is that Defendant Dorethy was made aware that Defendant Ford had

allegedly engaged in excessive force toward Plaintiff. However, this knowledge, gleaned after

the fact, is insufficient to support that Warden Dorethy had liability for these actions. “Simply

receiving correspondence from a prisoner” does not make a prison official liable for the alleged

infraction. Norington v. Daniels, No. 11- 282, 2011 WL 5101943, at *2–3 (N.D. Ind. Oct. 25,

2011). See also, Diaz v. McBride, 1994 WL 750707, at *4 (N.D. Ind. Nov. 30,1994) (a plaintiff

cannot establish personal involvement and subject a prison official to liability under section

1983, merely by sending the official various letters or grievances complaining about the actions

or conduct of subordinates.) Defendant Dorethy is DISMISSED.

1 Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92 (1978) (municipality liable

will attach where constitutional injury resulted from a municipality’s policy or practice).

Plaintiff will be allowed to proceed here on the claims that Defendant Ford exerted

unnecessary force against him and was deliberately indifferent to his serious medical needs on

June 6, 2018, in violation of the Eighth Amendment. He will also proceed against Defendant

Ford on state law claims of assault and battery.

The remaining claims are dismissed for misjoinder. If Plaintiff wishes to proceed on these

claims, he must file them in a separate action with responsibility for the attendant filing fee.

While Plaintiff asserts a claim for money damages against the State of Illinois and IDOC,

neither is a “person” for purposes of §1983 liability. See Thomas v. Illinois, 697 F.3d 612, 613

(7th Cir. 2012) (a state or state agency is not a “person” amenable to suit for money damages

under § 1983). See also, Wright v. Porter County, 2013 WL 11761909, *2 (N.D. Ind. Mar. 19,

2013)(dismissing IDOC and the East Moline Correctional Center as not persons amendable to

suit under § 1983). In addition, the State of Illinois and IDOC enjoy Eleventh Amendment

sovereign immunity from a suit for money damages. Wynn v. Southward, 251 F.3d 588, 591 (7th

Cir. 2001); Kentucky v. Graham, 473 U.S. 159 (1985). Any claim for money damages against

the State of Illinois and IDOC is DISMISSED with prejudice.

While the State and IDOC might otherwise be amenable in a claim for injunctive relief,

Plaintiff’s request for injunctive relief addresses only the Wexford policy under which an inmate

will not be seen by a physician until he has submitted three sick call slips. As this is not a State

or IDOC policy, and as Plaintiff does not allege that the State or IDOC has authority over

Wexford policies, an injunctive relief claim cannot proceed against these Defendants. See

Grayson v. Goetting, No. 15-00198, 2015 WL 887800, at *4 (S.D. Ill. Feb. 27, 2015) (a claim for

injunctive relief is to be asserted against those parties who would have the responsibility “for

ensuring injunctive relief is carried out.”); Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.

2011). The State of Illinois and IDOC are DISMISSED as to this claim as well.

IT IS THEREFORE ORDERED:

1. This case shall proceed solely on the excessive force, deliberate indifference and

state law assault and battery claims against Defendant Ford identified herein. All other claims

will not be included in the case, except in the Court's discretion upon motion by a party for good

cause shown, or by leave of court pursuant to Federal Rule of Civil Procedure 15. All other

Defendants are DISMISSED. The State of Illinois and IDOC are DISMISSED with prejudice as

to the § 1983 claim for money damages.

2. The Clerk is directed to send Defendant pursuant to this District's internal

procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3)

a copy of the Complaint; and 4) a copy of this Order.

3. If Defendant fails to sign and return a Waiver of Service to the Clerk within 30

days after the Waiver is sent, the Court will take appropriate steps to effect formal service on

Defendant and will require that Defendant pay the full costs of formal service pursuant to

Federal Rule of Civil Procedure 4(d)(2). If Defendant no longer works at the address provided by

Plaintiff, the entity for which Defendant worked at the time identified in the Complaint shall

provide to the Clerk Defendant's current work address, or, if not known, Defendant's forwarding

address. This information will be used only for purposes of effecting service. Documentation of

forwarding addresses will be maintained only by the Clerk and shall not be maintained in the

public docket nor disclosed by the Clerk.

4. Defendant shall file an answer within the prescribed by Local Rule. A Motion to

Dismiss is not an answer. The answer it to include all defenses appropriate under the Federal

Rules. The answer and subsequent pleadings are to address the issues and claims identified in

this Order.

5. Plaintiff shall serve upon any Defendant who has been served, but who is not

represented by counsel, a copy of every filing submitted by Plaintiff for consideration by the

Court and shall also file a certificate of service stating the date on which the copy was mailed.

Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk

or that fails to include a required certificate of service will be stricken by the Court.

6. Once counsel has appeared for Defendant, Plaintiff need not send copies of filings

to Defendant or to Defendant's counsel. Instead, the Clerk will file Plaintiff's document

electronically and send notice of electronic filing to defense counsel. The notice of electronic

filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic service on

Defendants is not available, Plaintiff will be notified and instructed accordingly.

7. Counsel for Defendant is hereby granted leave to depose Plaintiff at Plaintiff's

place of confinement. Counsel for Defendant shall arrange the time for the depositions.

8. Plaintiff shall immediately notice the Court of any change in mailing address or

phone number. The Clerk is directed to set an internal court deadline 60 days from the entry of

this Order for the Court to check on the status of service and enter scheduling deadlines.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD

PROCEDURES;

2) SET AN INTERNAL COURT DEADLINE 60 DAYS FROM THE ENTRY OF

THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND ENTER

SCHEDULING DEADLINES; AND

3) ENTER THE STANDARD QUALIFIED PROTECTIVE ORDER PURSUANT TO

THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT.

LASTLY, IT IS ORDERED THAT IF A DEFENDANT FAILS TO SIGN AND

RETURN A WAIVER OF SERVICE TO THE CLERK WITHIN 30 DAYS AFTER THE

WAIVER IS SENT, THE COURT WILL TAKE APPROPRIATE STEPS TO EFFECT

FORMAL SERVICE THROUGH THE U.S. MARSHAL'S SERVICE ON THAT

DEFENDANT AND WILL REQUIRE THAT DEFENDANT TO PAY THE FULL COSTS OF

FORMAL SERVICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(d)(2).

ENTERED: __3_/_2_6_/2_0_2_1________

____ _s/Michael M. Mihm ______

MICHAEL M. MIHM

UNITED STATES DISTRICT JUDGE