Torres v. Harris

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JUAN J. TORRES, )

#N84619, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00768-NJR

)

HARRIS, Dietary Supervisor, )

)

Defendant. )

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Juan J. Torres, an inmate of the Illinois Department of Corrections currently

incarcerated at Pinckneyville Correctional Center, brings this action for alleged deprivations of his

constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges he has been denied a job

because of his disability in violation of the Americans with Disabilities Act (ADA) and the

Rehabilitation Act (RA). He also asserts due process and equal protection claims. He seeks

monetary damages and injunctive relief.

This case is now before the Court for preliminary review of the Complaint pursuant to

28U.S.C. § 1915A, which requires the Court to screen prisoner Complaints to filter out

nonmeritorious claims. 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally

frivolous, malicious, fails to state a claim for relief, or requests money damages from an immune

defendant must be dismissed.28U.S.C. §1915A(b).

The Complaint

Plaintiff alleges he was not able to obtain a job at Pinckneyville due to being wheelchair

bound. (Doc. 1, pp. 3, 4). Plaintiff submitted a request slip to his counselor inquiring about the

types of jobs he could have while in a wheelchair.(Id., p. 3).His counselor responded that he could

be approved for a job in dietary or as a porter, but informed him that there were no ADA jobs in

dietary. (Id., pp. 3, 14). Plaintiff does not believe he can be a porter because he cannot sweep from

his wheelchair, and his chair will not fit in the laundry room. (Id., p. 3). Instead, Plaintiff requested

a job in the kitchen from dietary supervisor Harris. (Id., p. 3, 4). He submitted a request slip to

Harris, but Harris has never responded to Plaintiff’s request. (Id., p. 3).Plaintiff alleges that Harris

violated the ADA, RA, and his due process and equal protection rights in denying him a job in the

prison dietary.(Id., p. 7).

Based on the allegations in the Complaint, the Court finds it convenient to divide this action

into the following counts:

Count 1: ADA and/or RA claims for failing to provide Plaintiff with a job

in dietary.

Count 2: Dietary Supervisor Harris violated Plaintiff’s due process rights

by failing to provide Plaintiff with a job in dietary.

Count 3: Dietary Supervisor Harris violated Plaintiff’s equal protection

rights by failing to provide Plaintiff with a job in dietary and

because there are no ADA jobs in dietary.

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.The designations do not constitute an opinion

regarding their merit. Any other claim that is mentioned in the Complaint but not addressed

in this Order should be considered dismissed without prejudice as inadequately pled under

the Twomblypleading standard.1

1An 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.”Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Discussion

Count 1

As a preliminary matter, the Court notes that Plaintiff has not named a proper defendant

with respect to Count 1. The proper defendant with respect to the ADA and RA claims is the

agency, in this case the Illinois Department of Corrections, or its director (in his official capacity).

See 42 U.S.C. § 12131(1)(b); Jaros v. Illinois Dep’t of Corr., 684 F.3d 667, 670 n.2 (7th Cir. 2012)

(individual capacity claims are not available; the proper defendant is the agency or its director (in

his official capacity)). Normally, the Court would give Plaintiff the opportunity to correct this

mistake by amendment. As explained below, however, even if Plaintiff had named a proper

defendant, his ADA and RA claims would fail. Accordingly, amendment would be futile.

The Seventh Circuit has held that the ADAdoes not apply to the employment of prisoners.

Starry v. Oshkosh Correctional Institution, 731 F.App’x 517 (7th Cir. 2018). In Neisler v.

Tuckwell, the Court held that workplace discrimination on the basis of a disability in connection

with paid prison employment is not covered under Title II. 807 F.3d 225, 227-28 (7th Cir. 2015)

(citations omitted). In Murdock v. Washington, the Court found that Title I did not apply because

plaintiff was “an inmate of the prison, not an employee or job applicant” 193 F.3d 510, 512 (7th

Cir. 1999).Additionally, the Eleventh Amendment shields the prison from suits seeking damages

under Title I.Starry, 731 F.App’x at 519; Neisler, 807 F.3d at 228.

Nor is there a viable claim under the RA. Starry, 731 F.App’x at 519. As with Title II of

the ADA, the RA prohibits a disabled person from being excluded from participating in, being

denied the benefits of, or being subjected to discrimination in any program or activity that receives

federal funds. 29 U.S.C. § 794(a).The Seventh Circuit has held that paid prison employment does

not constitute an activity, service, or program.Neisler, 807 F.3d at 227-28.

For these reasons, Plaintiff’s ADA and RA claims will be dismissedwith prejudice.

Count 2

Prisoners have no liberty interest in prison employment and, therefore, Plaintiff cannot

state a due process claim.Starry v. Oshkosh, 731 F.App’x 517, 518 (7th Cir. 2018) (citing DeWalt

v. Carter, 224 F.3d 607, 613 (7th Cir. 2000); see also Garza v. Miller, 688 F.2d 480, 485–86 (7th

Cir.1982).As such, Plaintiff’s due process claim will be dismissed with prejudice.

Count 3

To state a claim of discrimination under the Fourteenth Amendment equal protection

clause, Plaintiff must show “that he is a member of a protected class, that he is otherwise similarly

situated to members of the unprotected class, and that he was treated differently from members of

the unprotected class.” Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005) (quoting McNabola v.

Chicago Transit Auth., 10 F.3d 501 (7th Cir. 1993)). A “prison administrative decision may give

rise to an equal protection claim only if the plaintiff can establish that ‘state officials had

purposefully and intentionally discriminated against him.’”Meriwether v. Faulkner,821 F.2d 408,

415 n.7 (7th Cir. 1987) (citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982)). To state a

claim for unconstitutional discrimination, the Complaint must suggest that a prison official

“singled out a particular group for disparate treatment and selected his course of action at least in

part for the purpose of causing its adverse effects on the identifiable group.”Nabozny v. Podlesny,

92 F.3d 446, 453–54 (7th Cir.1996) (quoting Shango, 681 F.2d at 1104).

Plaintiff’s equal protection claim2 is based on (1) one request slip he sent to Harris

2A class-of-one equal protection claim is not viable with regard to prison employment. See Engquist v. Oregon

Department of Agriculture, 553 U.S. 591, 594 (2008) (“a‘class-of-one’theory of equal protection has no place in the

public employment context.”); Robinson v. Morris, No. 17-cv-001381-JPG, 2018 WL 659203, at *7 (S.D. Ill. Feb. 1,

2018); Alexander v. Lopac, No. 11 C 50012, 2011 WL 832248, at *2 (N.D. Ill. March 3, 2011) (dismissing at threshold

stage class-of-one claim for denial of position in prisoner work program) (collecting cases); Floyd v. Blaesing, No.

requesting a job in dietary in which he mentioned he uses a wheelchair and (2) his counselor’s

statement that there are no ADA jobs in dietary. The fact that he “sent a slip” does not equate to

Harris receiving the slip. He has not alleged that he spoke with Harris or that Harris ever actually

refused to give him a job. Harris did not tell Plaintiff that there are no ADA jobs in dietary. The

allegations in the Complaint are not sufficient to show that Harris caused or participated in a

constitutional deprivation. See Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005)

(“to be liable under § 1983, the individual defendant must have caused or participated in a

constitutional deprivation.”). Accordingly, Plaintiff’s equal protection claim will be dismissed

without prejudice.

Motion for Recruitment of Counsel

Civil litigants do not have a constitutional or statutory right to counsel.Pruitt v. Mote, 503

F.3d 647, 649 (7th Cir. 2007).Under 28 U.S.C. § 1915(e)(1), however, the Court has discretion to

recruit counsel to represent indigent litigants in appropriate cases. Johnson v. Doughty, 433 F.3d

1001, 1006 (7th Cir. 2006). When deciding whether to recruit counsel for an indigent litigant, the

Court must consider (1) whether the indigent plaintiff has made reasonable attempts to secure

counsel on his own, and, if so, (2) whether the difficulty of the case exceeds the plaintiff’s capacity

as a layperson to coherently present it.Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing

Pruitt, 503 F.3d at 654).

Plaintiff states he has made repeated efforts to obtain an attorney. He discloses

communications with two nonprofit organizations but has not provided any unsuccessful attempts

to retain an attorneys in private practice. With respect to his ability to pursue this action pro se,

11-cv-3444, 2012 WL 424854, at *2 (C.D. Ill. Feb. 9, 2012) (dismissing at threshold stage class-of-one claim for

denial of job while in detention).

Plaintiff indicates thathe has no legal education and a limited knowledge of the law. He also cites

his imprisonment and limited law library access as impediments.Nonetheless, the Court finds that

Plaintiff can proceed pro se, at least for now. Plaintiff’s pleadings demonstrate an ability to

constructcoherent sentences and relay information to the Court. Plaintiff appears competent to try

this matter without representation at this time. The Motion for Recruitment of Counsel (Doc. 3)

will be denied.

Plaintiff may renew his request for the appointment of counsel at a later date. If Plaintiff

does renew his request, he should give the Court a rejection letter from at least one additional

attorney to prove that he has made reasonable efforts to find an attorneyon his own.

Disposition

IT IS HEREBY ORDERED that this matter does not survive 28 U.S.C. § 1915A review

because the Complaint fails to state a claim upon which relief may be granted.Counts 1 and 2 are

DISMISSEDwith prejudice.Count 3 is DISMISSEDwithout prejudice.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Recruitment of Counsel (Doc.3)

is DENIEDwithout prejudice.

IT IS FURTHER ORDERED that Plaintiff is GRANTEDleave to file a First Amended

Complaintas to Count 3onlyon or before October 21, 2019.Should Plaintiff decide to file a First

Amended Complaint, he should identify each defendant in the case caption and set forth sufficient

allegations against each defendant to describe what the defendant did or failed to do to violate his

constitutional rights. A successful complaint generally alleges “the who, what, when, where, and

how ....” DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). Plaintiff should attempt to

include the relevant facts of his case in chronological order, inserting each defendant’s name where

necessary to identify the actors and each defendant’s actions. The First Amended Complaint

should comply with Rule 8 and Twombly pleading standards.

If Plaintiff fails to file his First Amended Complaint within the allotted time or consistent

with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for

failure to comply with a court order and/or for failure to prosecute his claims.FED.R.CIV.P.41(b);

Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir.

1994); 28 U.S.C. § 1915(e)(2). The dismissal shall count as one of Plaintiff’s three allotted

“strikes”under 28 U.S.C. § 1915(g).

An amended complaint supersedes and replaces the original complaint, rendering the

original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1

(7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint. Thus,

the First Amended Complaint must stand on its own, without reference to any previous pleading,

and Plaintiff must re-file any relevant exhibits he wishes the Court to consider. The First Amended

Complaint is subject to review pursuant to 28 U.S.C. § 1915A.

If Plaintiff decides to file a First Amended Complaint, it is strongly recommended that he

use the civil rights complaint form designed for use in this District. He should label the form, “First

Amended Complaint,”and he should use the casenumber for this action (No. 19-cv-00768-NJR).

To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail Plaintiff a blank

civil rights complaint form.

Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was

incurred at the time the action was filed, thus the filing fee remains due and payable, regardless of

whether Plaintiff elects to file a First Amended Complaint. See 28 U.S.C. § 1915(b)(1); Lucien v.

Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk

of Court 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).

IT IS SO ORDERED.

DATED: September 16, 2019 7 ual) (2 )

NANCY J. ROSENSTENGEL

Chief U.S. District Judge