Jones v. McShan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

OMARRIAN JONES, )

#M29668, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00386-NJR

)

WEXFORD HEALTH SOURCES, INC., )

JACOB WEATHERFORD, )

DR. CHRISTINA FLOREANI, )

DR. LISA GOLDMAN, )

DR. EVA LEVEN, )

DR. MYRON MCSHAN, )

JANE DOE, )

JOHN VARGA, )

JACQUELINE LASHBROOK, )

FRANK LAWRENCE, )

JOHN BALDWIN, )

ROB JEFFREYS, )

MELISSA PAPPAS, )

MEGAN VANPELT, )

DR. ROBERT GLENN, )

DR. RAJENDRA GUPTA, )

DR. RAYMOND MARQUEZ, )

JIM DOES, and )

JOHN DOES, )

)

Defendants. )

MEMORANDUM AND ORDER

ROSENSTENGEL,Chief Judge:

Plaintiff Omarrion Jones, an inmate of the Illinois Department of Corrections (“IDOC”)

who is currently incarcerated at Dixon Correctional Center (“Dixon”), brings this action for

deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 regarding his medical care

and conditions of confinement while at Menard Correctional Center (“Menard”) and Dixon.

Plaintiff’s original Complaint,First Amended Complaint,and corresponding motions, filed

pro se,were dismissed for noncompliance with Rule 8 and for failure to state a claim.See Doc.14.

The Court recruited counsel to represent Plaintiff, and Plaintiff’s Second Amended Complaint is

now before the Court for preliminary review pursuant to 28U.S.C. §1915A. Under Section1915A,

the Court is required to screen prisoner complaints to filter out non-meritorious claims. See

28U.S.C. §1915A(a). 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. 28U.S.C. §1915A(b).

A complaint fails to state a claim upon which relief can be granted if it does not plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007). The claim must cross “the line between possibility and plausibility.” Id.

at 557. On screening, the Court accepts as true all of the well-pleaded facts in the Second Amended

Complaint and draws all reasonable inferences in favor ofPlaintiff. Kubiak v. City of Chicago, 810

F.3d 476, 480–81 (7th Cir. 2016).The Court also must consider whether any claims are improperly

joined and subject to severance or dismissal. See George v. Smith, 507 F.3d 605, 607 (7th Cir.

2007).

SECOND AMENDED COMPLAINT

In the Second Amended Complaint, Plaintiff alleges the following:He has been diagnosed

with mental illnesses,attentiondeficit/hyperactivity disorder, depression, and suicidal tendencies,

and classified for a period of time as Seriously Mentally Ill (“SMI”). (Doc. 33, pp. 5, 10). While

at Menard and Dixon, he has been continually placed in cells with other inmates who are

unprepared or ill-equipped to deal with a person with mental health issues and disabilities. (Id. at

p. 6). As a result, he has had altercations and violent conflicts with cellmates, and he injured his

shoulder during one conflict. (Id. at p. 6). At one point,Plaintiff asked Mental Health Professional

VanPelt if he could be placed in a single cell. (Id. at p. 6).

While at Menard in June 2018, he became depressed and suicidal. (Id. at p. 5). On August

30, 2018, heasked gallery officers and prison staff, “John Does,”to place him on crisis watch, but

they left him in his general population cell. (Id. at p. 6). Plaintiff then attempted suicide with a

rope. His cellmate took the rope away and gave it to the evening nurse, Jane Doe. (Id.). Jane Doe

said she would get help, but no one intervened or provided care. (Id.). He then continued to attempt

suicide and inflict self-harm that evening but was not placed in a crisis cell until two in the

morning. (Id.).

Plaintiff was placed in crisis cells for suicidal thoughts from August 31, 2018, until October

26, 2018. (Id.). During the time he spent in crisis cells 503 and 509, he was subjected to

unconstitutional conditions of confinement. (Id. at p. 7). The cells were filthy with urine, blood,

and feces on the walls, dirty floors and mattress, and improperly functioning sinks and toilets.

While in cell 509, the light was left on atall times, and he was exposed to extremely high heat and

low air flow, aggravating his asthma. (Id. at p. 7). Because of the extreme conditions, three other

inmates in adjacent cells died. Plaintiff complained to Dr. Leven about the inhumane conditions

and his lack of medical treatment, but she took no action. (Id.at p. 9).

While on crisis watch, Plaintiff had a meeting with Dr. Floreani and Mental Health

Professional Weatherfordon September 19, 2018. (Id.at p. 8). Plaintiff told them he was suicidal.

(Id. at pp. 18-19). They responded that they did not believe him and ordered him to be released

from crisis watch and returned to general population.He returned to his crisis cell with instructions

to be taken off crisis watch classification and was given back his property. Plaintiff then attempted

suicide by hanging himself with his shoelaces. (Id. at p. 8).

Following the incident, Dr. Floreani changed Plaintiff’s diagnosis and medications without

explaining the medication and its side effects. (Id.at p. 9). He was taken off of Wellbutrin without

his knowledge, and all of his requests for Wellbutrin to be reinstated have been denied. (Id. at

p.10). Between September and October 2018, Plaintiff was forced to take medication by Dr.

Floreani that caused him to blackout. (Id.at p. 12).

Because of the multiple suicide attempts, he suffers from neck and upper body injuries.(Id.

at pp. 6, 9). Plaintiff was notified that physical therapy appointments would be scheduled to treat

his injuries, but he never received any treatment for neck and back pain. (Id. at p. 9).

SEVERANCE

Rule 20 of the Federal Rules of Civil Procedure prohibits a plaintiff from asserting

unrelated claims against different defendants or sets of defendants in the same lawsuit. Under Rule

20, multiple defendants may not be joined in a single action unless the plaintiff asserts at least one

claim to relief against each respondent that arises out of the same transaction or occurrence or

series of transactions or occurrences and presents a question of law or fact common to all. George,

507 F.3d at 607; 3A Moore’s Federal Practice § 20.06, at 2036–45 (2d ed.1978). Rule 18 allows

a party to join unrelated claims against defendants in a lawsuit. Notably, however, this rule applies

only after the requirements for joinder of parties have been satisfied under Rule 20. Intercon

Research Ass’n, Ltd. v. Dresser Ind., Inc., 696 F.2d 53, 57 (7th Cir. 1983)(citing 7 Charles Alan

Wright et al., Federal Practice & Procedure).

Here, Plaintiff’s claims pertaining to his treatment (or lack thereof) at Menard and Dixon

are not properly joined in a single action. The discretionary actions taken by different officials at

different prisons do not constitute the same series of transactions and occurrences with questions

of fact common to each of the defendants. The defendants employed at Menard and those at Dixon

have made independent judgments about Plaintiff’s condition, treatment, and grievances as it

appeared to them at the time. As a result, John Baldwin, former IDOC Director, John Varga,

Warden of Dixon, Dr. Raymond Marquez, psychiatrist at Dixon, and RobJeffreys, current IDOC

Director,from whom Plaintiff requests injunctive relief regarding his current medical treatmentat

Dixon, are not properly joined under Rule 20(a)(2), and the claims against them pertaining to

alleged violations that occurredor are occurringat Dixondo not belong in this action.

For these reasons, the Court exercises its authority under Rule 21 and severs the improperly

joined claims. Any claims directed against Varga, Marquez, Jeffreys, and Baldwin regarding

Plaintiff’s treatment at Dixonwill be severed into a separate action. This separate action will have

a newly assigned case number and shall undergo preliminary review pursuant to Section 1915A

after the new case number and judge assignments have been made.

PRELIMINARY DISMISSALS

Plaintiff brings claims against John Does, whom he describes as prison staff and

corrections officers in the North I, Gallery 3 on August 30, 2018, and Jim Does, described as

corrections officers in the North II, Gallery 5 from on or about August 31, 2018, to September 5,

2018, and September 14, 2018, to October 25, 2018. (Doc. 33, p. 5).While a plaintiff may use the

“John Doe” designation to refer to specific individuals whose names are unknown, a plaintiff will

run afoul of the pleading standards in Iqbal and Twombly by merely asserting that groups of staff

violated his constitutional rights. See Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009)(citing

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). When a plaintiff does nothing but state that a group of corrections officers harmed him

without providing more, all he has done is establish that there is a “sheer possibility” that someone

in that group harmed him. That is, Plaintiff may not know the name of individual defendants, but

he must describe the “who, what, why, where, and how” that form the basis of the claim against

that person (e.g. John Doe #1 did X and John Doe #2 did Y). To allow otherwise would be

effectively allowing Plaintiff to amend his complaint further at will without review of this Court,

a result contrary to both the local rules and Section1915A. Although the Complaint does reference

the actions of a Lieutenant, a Sergeant, and three gallery officers, these individuals are not listed

in the case caption, but grouped in with the description of “John Does.”See Myles v. United States,

416 F.3d 551, 551–52 (7th Cir. 2005)(to be properly considered a party a defendant must be

“specif[ied] in the caption”). Because the Complaint neither individually describes the unknown

defendants nor their conduct, Plaintiff could ascribe any conduct he chooses to any number of

people that occurred at any time during the relevant time period. For these reasons, Defendants

John Does and Jim Does are dismissed without prejudice. Should Plaintiff amend his complaintas

the case progresses, he must specifically describe the unconstitutional conduct that any unknown

defendant engaged in and name such defendant in the case caption.

Furthermore, any request for injunctive relief against the Menard Defendants is denied

without prejudice as moot, given Plaintiff’s transfer from the facility. Only if Plaintiff can show a

realistic possibility that he would again be incarcerated at Menard under the conditions described

in the Second Amended Complaint would it be proper for the Court to consider injunctive relief

against those Defendants. See Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011)(citing Ortiz v.

Downey, 561 F. 3d 644, 668 (7th Cir. 2009)).

DISCUSSION

Based on the allegations in the Second Amended Complaint, the Court finds it convenient

to delineate the claims in this case into the followingtwelveCounts:

Count 1: Eighth Amendment claim against Jane Doe for failure to protect and

deliberate indifference to Plaintiff’s risk of suicide on August 30,

2018.

Count 2: Eighth Amendment claim against Dr. Floreani and Weatherford for

failure to protect and deliberate indifference to Plaintiff’s risk of

suicide on September 19, 2018.

Count 3: Eighth Amendment claim against Jeffreys, Lawrence, Baldwin,

Lashbrook, Dr. Leven, Dr. Goldman, Dr. Floreani, Weatherford,

VanPelt, and Pappas for subjecting Plaintiff to unconstitutional

conditions of confinement while on crisis watch in cell 509 from

August 31, 2018, until September 5, 2018, and in cell 503 from

September 14, 2018, until October 26, 2018.

Count 4: Fourteenth Amendment claim against Jeffreys, Lawrence, Baldwin,

and Lashbrook for interference with the grievance process.

Count 5: Violation of the Americans with Disabilities Act and Rehabilitation

Act claim against Jeffreys and Lawrence.

Count 6: Eighth Amendment claim against Jeffreys, Lawrence, Baldwin,

Lashbrook, Dr. McShan, Dr. Goldman, Dr. Gupta, Dr. Glenn, Dr.

Floreani, Dr. Leven, Weatherford, VanPelt, and Pappas for failing

to protect Plaintiff from himself, prison staff, medical providers, and

other inmates.

Count 7: Monell claim against Jeffreys, Lawrence, Baldwin, and

Lashbrook, in their official capacities, for unconstitutional

practices and policies.

Count 8: Eighth Amendment claim against Dr. McShan, Dr. Goldman, Dr.

Gupta, Dr. Floreani, Weatherford, Dr. Leven, Dr. Glenn, VanPelt,

Pappas, and Wexford for exhibiting deliberate indifference

to Plaintiff’s serious medical needs regarding treatment for his

mental illnesses and related injuries while at Menard.

Count 9: First Amendment claim against Dr. Floreani for retaliating

against Plaintiff by changing his diagnosis and medication.

Count 10: Fourteenth Amendment claim against VanPelt for ignoring or

denying Plaintiff’s requests for help with grievance procedure.

Count 11: Intentional infliction of emotional distress claim in violation of

I llinois state law against Defendants.

Count 12: Eighth Amendment claim against dental staff at Menard for

deliberate indifference to Plaintiff’s medical needs regarding dental

treatment.

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 Second

Amended Complaint but not addressed in this Order is considered dismissed without

prejudice as inadequately pled under the 1 pleading standard.

Counts 1 and 2

Suicide, attempted suicide, and other acts of self-harm clearly pose a “serious” risk to an

inmate’s health and safety, and may provide the foundation for deliberate indifference to medical

needs and failure to protect claims. See Collins v. Seeman, 462 F.3d 757, 760 (7th Cir.

2006)(quoting Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001)). Where the harm at

issue is a suicide or attempted suicide, deliberate indifference requires “a dual showing that the

defendant: (1) subjectively knew the prisoner was at substantial risk of committing suicide and

(2)intentionally disregarded that risk.” Collins, 462 F.3d at 761(citations omitted).

Plaintiff’s claims that (1) Jane Doe was given the rope he had used to attempt suicide and

then did not return to Plaintiff’s cell or ensure he received treatment or care; and (2) Dr. Floreani

and Weatherford removed him from crisis watch after he informed them he was still suicidal are

sufficient at this early stage for Count 1 to proceed again Jane Doe and Count 2 to proceed against

Dr. Floreani and Weatherford.

1 Twombly, 550 U.S. at 570. This includes any claims against Dr. Caldwell who allegedly did not arrange physical

therapy appointments for Plaintiff, (Doc. 33, p. 9), but who is not named as a defendant in the case caption.See Myles,

416 F.3d at551–52. Claims regarding Mental Health Provider Pappas regarding “her dealings” with Plaintiff are also

dismissed without prejudice. (Doc. 33, p. 12). Other than stating that he wrote a grievance regarding her conduct

towards him while he was in a crisis cell, Plaintiff does not assert any constitutional violation regarding Pappas’s

actions.See Bank of America, N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013)(“Each defendant is entitled to know

what he or she did that is asserted to be wrongful.”).

Count 3

Conditions of confinement which result in serious “deprivation of basic human needs” and

“deprive inmates of the minimal civilized measure of life’s necessities” violate the Eighth

Amendment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See also Vinning-El v. Long, 482

F.3d 923, 924 (7th Cir. 2007); Cobian v. McLaughlin, 717 F. App’x 605, 611 (7th Cir. 2017). To

be held liable for unconstitutional conditions of confinement, a prison official must be deliberately

indifferent to health or safety; he or she must be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and must actually draw the inference. See, e.g.,

Farmer v. Brennan, 511 U.S. 825, 837 (1994); Wilson v. Seiter, 501 U.S. 294, 303 (1991); Gills

v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006).

Plaintiff’s allegations that while on crisis watch he was kept in filthy cells with extreme

heat, the lights on at all times, and improperly working toilets and sinks is enough to survive

screening against Dr. Leven,who he claims he complainedto about the cell conditions, but never

returned to speak to him.

Count 3 will be dismissed against Jeffreys, Lawrence, Baldwin, Lashbrook, Dr. Goldman,

Dr. Floreani, Weatherford, VanPelt, and Pappas who Plaintiff claims were aware of the cell

conditions and still allowed him to be placed in harsh, subhuman conditions. He claims that

Defendants were on notice as to cruel and inadequate cell conditions from previous cases,

grievances, and complaints filed by other prisoners. But the deliberate indifference standard does

not use the “notice” standard. It is not enough that Defendants were generally aware of the

conditions of confinement of crisis cells at Menard. Rather, Defendants must know that

Plaintiffwas at risk of serious harm and then consciouslydisregard that risk.

Plaintiff states that he wrote and submitted grievances regarding his confinement

conditions while on crisis watch and never received a reply from any official or staff at Menard.

(Doc. p. 11).The Seventh Circuit has been clear thatfailure to properly respond to grievances and

letters adequately alleges the subjective element at the pleading stages.Perez v. Fenoglio, 792 F.3d

768, 781-82 (7th Cir. 2015). Plaintiff, however, does not name any Defendants associated with

this allegation. Therefore, Count 3 shall be dismissed as to Jeffreys, Lawrence, Baldwin,

Lashbrook, Dr. Goldman, Dr. Floreani, Weatherford, VanPelt, and Pappas.

Count 4

Plaintiff alleges that Jeffreys, Lawrence, Baldwin, and Lashbrook through their agents,

servants, and employees, maintain policies, practices, and customs that allow the grievances of

inmates to be thrown away, disregarded, or otherwise lost. (Doc. 33, p. 22). As a direct result of

these policies, his grievances went unaddressed causing him to suffer mental and physical injuries.

(Id.at p. 23).

Issues with grievance procedures, however, do not constitute violations of the First or

Fourteenth Amendments. Prison grievance procedures are not mandated by the First Amendment

and do not by their very existence create interests protected by the due process clause. Owens v.

Hinsley, 635 F.3d 950, 953–54 (7th Cir. 2011); George, 507 F.3d at 609; Grieveson v. Anderson,

538 F.3d 763, 772 & n.3 (7th Cir. 2008); Antonelliv. Sheahan, 81 F.3d 1422,1430(7thCir. 1996).

“[A]ny right to a grievance procedure is a procedural right, not a substantive one.” Antonelli, 81

F.3d at 1430. “Accordingly, a state’s inmate grievance procedures do not give rise to a liberty

interest protected by the Due Process Clause.” Id. Further, a federal court does not enforce state

law administrative procedures. Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988)(en

banc), cert. denied, 489 U.S. 1065 (1989); Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d

520, 526 (7th Cir. 2001). Thus, the alleged failure to follow administrative procedures is not

actionable under Section 1983, and the mishandling and denying of grievances does not make a

defendant personally involved in the constitutional violation alleged in the grievance. See Owens

v. Evans, 878 F.3d 559, 563 (7th Cir. 2017).

That said, inmates have the right to petition the government for redress of grievancesunder

the First Amendment, which includes access to the courts to present their complaints. Bridges v.

Gilbert, 557 F.3d 541, 553 (7th Cir. 2009). Here, Plaintiff’s access to the courts has not been

impeded by the alleged actions, as the unavailability of administrative remedies is not a bar to

potential litigants bringing their claims. See Ross v. Blake, 136 S.Ct. 1850, 1860 (2016); Hill v.

Snyder,817 F.3d 1037, 1041 (7th Cir. 2016).Therefore, there is no Fourteenth or First Amendment

violation alleged in the Second Amended Complaint for maintaining policies that allow for the

mishandling of grievances.

Plaintiff claims that the policies regarding grievance procedures also violated his rights

under the Eighth Amendmentand constituted cruel and unusual punishment. (Doc. 33, pp. 22-23).

Because the “Constitution does not require that a prison or jail provide a grievance procedure,”

Subil v. Marshal, No. 04-cv-0257-PS, 2007 WL 2446780 at *1 (N.D. Ind. Aug, 24, 2007)(citations

omitted), violations of or failure to provide a grievance procedure would not constitute cruel and

unusual punishment, which requires a showing that the inmate was denied “the minimal civilized

measure of life’s necessities[.]”Farmer, 511 U.S. at 834.

The Court also notes thatany claim against these Defendants based solely on their positions

as administrators fails, becausethe doctrine of respondeat superior does not apply to Section 1983

actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). For these reasons Count 4 is

dismissed without prejudice.

Count 5

Under the Americans with Disabilities Act (“ADA”), “no qualified individual with a

disability shall, because of that disability … 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 (2006). TheRehabilitation Act (“RA”)likewiseprohibits discrimination against qualified

individuals based on a physical ormental disability.See29 U.S.C. §§ 794-94e. The analysis under

the ADA and the RA is the same, except that the RA includes as an additional requirement the

receipt of federal funds, which all states accept for their prisons. Jaros v. Ill. Dep’t of Corr., 685

F.3d 667, 671 (7th Cir. 2012)(citing 29 U.S.C. § 705(2)(B)). Discrimination under both includes

the failure to accommodate a disability.Jaros, 684 F.3d at 672(citation omitted).

Plaintiff alleges that he is a qualified person with a disability due to his mental illnesses

and that his classification as Seriously Mentally Ill was arbitrarily removed in retaliation for

complaining about his medical care, resulting in him not receiving proper mental health treatment.

These allegations are sufficient to articulate a colorable ADA and RA claim. Defendant Rob

Jeffreys, in his official capacity as the current Director of IDOC, is the proper defendant for

Plaintiff’s ADA and Rehabilitation Act claim. See 42 U.S.C. § 12131(1)(b); Jaros, 684 F.3d at

670, n. 2 (individual capacity claims are not available; the proper defendant is the agency or its

director (in his official capacity)). Accordingly, Plaintiff will be allowed to proceed with Count 5

against Rob Jeffreys in his official capacity.Count 5 will be dismissed as to Warden Lawrence, as

employees of IDOC are not amenable to suit under the ADA or RA. Id.

Count 6

An Eighth Amendment failure to protect claim arises when a plaintiff is incarcerated under

conditions posing a substantial risk of serious harm and the defendant acts with deliberate

indifference to the Plaintiff’s health or safety. Farmer, 511 U.S. at 834, 837 (1994); Santiago v.

Walls, 599 F.3d 749, 756 (7th Cir. 2010). In order for Plaintiff to prevail on his failure to protect

claims, he must establish that defendants had actual knowledge of an impending harm, easily

preventable, so that a conscious, culpable refusal to prevent the harm can be inferred from each

defendant’s failure to prevent it. Santiago, 599 F.3d at 758.

Plaintiff claims that he made a request to VanPelt to be placed into a single cell, but

continued to becelled with inmates who threatened his safety.(Id. at pp. 6, 15).Therefore, Count

6 will proceed against VanPelt.

As to the other Defendants, Plaintiff claims that Jeffreys, Lawrence, Baldwin, Lashbrook,

Dr. McShan, Dr. Goldman, Dr. Gupta, Dr. Glenn, Dr. Floreani, Dr. Leven, Weatherford, and

Pappas have been deliberately indifferent to the substantial risk of harm he faced from himself,

prison staff, medical providers, and other inmates. (Doc. 33, pp.15,25). He allegesthat Defendants

were aware that when prisoners are placed into a cell with a mentally ill person, they can become

frustrated and dangerous, and that they are aware that leaving mental diseases and ADHD

untreated puts Plaintiff at risk of harm from himself and other. (Id.). These conclusory and

collective accusations, however, failto allegethatDefendants were aware of a specific, impending,

and substantial threat to his safetyprior to his attempted suicide attempts, wrongful cell placement,

or inadequate medical treatment.See Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996).

Additionally, he does notidentify whatactions by particular individuals were conducted in

violation of his rights, only that “defendants disregard[ed] the risk that plaintiff [would] be

harmed” and “the actions of defendants were the direct and proximate cause of the violations”.

(Doc. 33, pp. 15, 25). Section 1983 creates a cause of action based on personal liability and

predicated upon fault. Therefore, “to be liable under § 1983, the individual defendant must have

caused or participated in a constitutional deprivation.” Pepper v. Vill. Of Oak Park, 430 F.3d 809,

810 (7th Cir. 2005)(internal quotations and citations omitted).

Again, as previously mentioned, a defendant cannot be liable merely because he or she

supervised a person who caused a constitutional violation. Kinslow v. Pullara, 538 F.3d 687, 692

(7th Cir. 2008). Therefore, Count 6 is dismissed against Jeffreys, Lawrence, Baldwin, Lashbrook,

Dr. McShan, Dr. Goldman, Dr. Gupta, Dr. Glenn, Dr. Floreani, Dr. Leven, Weatherford, and

Pappas.

Count 7

“Suing a state employee in his official capacity is the same as suing the state…and the state

is not a ‘person’ under § 1983.” Ambrose v. Godinez, 510 F. App’x 470, 471 (7th Cir. 2013)(citing

Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir.2012)); Williams v. Wisc., 336 F.3d 576, 580 (7th

Cir.2003); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). Additionally, the ruling in

Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978) “applies only to local government units that are

not considered part of the state.” Phillips v. Baxter, 768 F. App’x 555, 560 (7th Cir. 2019)(citing

Will, 491 U.S. at 70). As such, Jeffreys, Lawrence, Baldwin, and Lashbrook, in their official

capacities, cannot be liable under Monell for the unconstitutional actions of individual defendants

performed pursuant to policies, practice, and customs of IDOC. (Doc. 33, pp. 25-26). Furthermore,

to the extent that Plaintiff is requesting injunctive relief “to prevent the continued violation of his

constitutional rights”, this action only addresses claims of constitutional violations that occurred

at Menard. (Id. at p. 27). As Plaintiff is now at Dixon, “[a]ny relief that [the] judgment might

permit would be purely speculative in nature.” Ortiz, 561 F.3d at 668 (citations omitted).

Therefore, Count 7 is dismissed.

Count 8

The Supreme Court has recognized that “deliberate indifference to serious medical needs

of prisoners” may constitute cruel and unusual punishment under the Eighth Amendment. Estelle

v. Gamble, 429 U.S. 97, 104 (1976); Farmer, 511 U.S. at 834-35. “To prevail on a deliberate-

indifference claim, the plaintiff must prove that he suffered from ‘(1) objectively serious medical

condition to which (2) a state official was deliberately, that is subjectively, indifferent.’” Whiting

v. Wexford Health Sources, Inc., 839 F.3d 658, 622 (7th Cir. 2008)(quoting Duckworth v. Ahmad,

532 F.3d 675, 679 (7th Cir. 2008)); see also Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir. 2019).

The Seventh Circuit has found that “the need for a mental illness to be treated could certainly be

considered a serious medical need.” Sanville, 266 F.3d at 733. When a private corporation has

contracted to provide essential government services, such as healthcare for inmates, the

corporation can be held liable under Section 1983 if the constitutional violation was caused by an

unconstitutional policy or custom of the corporation itself. Shields v. Ill. Dep’t of Corr., 746 F.3d

782, 789 (7th Cir. 2014). Plaintiff’s allegations are sufficient for Count 8 to proceed against Dr.

Floreani, Weatherford, Dr. Leven, Dr. Glenn, and Wexford Health Sources, Inc. (“Wexford”).

Count 8 shall be dismissed, however, as to Dr. McShan, Dr. Goldman, Dr. Gupta, VanPelt,

and Pappas for failure to state a claim upon which relief may be granted as Plaintiff has failed to

associate sufficient detail regarding failure to treat and deliberate indifference to his serious

medical needs with these Defendants. Plaintiffs are required to associate specific defendants with

specific claims, so that defendants are put on notice of the claims brought against them and so they

can properly answer the complaint. See Twombly, 550 U.S. at 555; FED.R.CIV. P. 8(a)(2). To state

a claim against a defendant, Plaintiff must describe what each named defendant did, or failed to

do, that violated Plaintiff’s constitutional rights. Regarding these Defendants, Plaintiff only uses

conclusory statements that “Defendants,” generally, “were involved in and/or oversaw” his

medical treatment. He states that “Defendants’ actions described above constitute violations of

[his] Eighth Amendment right to be free from cruel and unusual punishment” regarding his

medical care but does not describe their actions anywhere in the Complaint. (Doc. 33, pp. 13-14).

Because “[a] complaint which consists of conclusory allegations unsupported by factual assertions

fails even the liberal standard of Rule 12(b)(6),” Palda v. General Dynamic Corp., 47 F.3d 872,

875 (7th Cir. 1995); Jackson v. E.J. Brach Corp., 176 F.3d 971 (7th Cir. 1999), Count 8 is

dismissed without prejudice as to Dr. McShan, Dr. Goldman, Dr. Gupta, VanPelt, and Pappas.

Count 9

“An act taken in retaliation for the exercise of a constitutionally protected right violates the

Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). “Prisoner complaints about

medical issues, including mental health problems such as suicidal ideation, are protected by the

First Amendment.” Czapiewski v. Russell, No. 16-cv-208-BBC, 2016 WL 3920503 *3 (W.D.

Wisc., July 18, 2016)(citing Gomez v. Randle, 680 F.3d 859, 866-67 (7th Cir. 2012). Plaintiff

claims that Dr. Floreani changed his diagnosis and medications in retaliation for attempting to

commit suicide following the meeting on September 19, 2018. (Doc. 33, p. 9, 10). It is not entirely

clear to the Court what activity or speech Plaintiff is claiming is protected by the First

Amendment—his actual attempts to commit suicide or his comments regarding his thoughts of

self-harm—so at this stage Count 9 shall proceed against Dr. Floreani.

Plaintiff also asserts that he was classified as a non-SMI in retaliation for complaining

about his care. (Doc. 33, pp. 5, 24). This allegation, however, is brought against Defendants

Jeffreys and Lawrence, in their official capacities only, and as previously mentioned, “neither a

State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will, 491 U.S.

at 71. See also Brown vy. Budz, 398 F.3d 904, 917-18 (7th Cir. 2005). Therefore, claims of

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retaliation against Jeffreys and Lawrence are dismissed.

Count 10

As discussed in Count 4, the Constitution does not require a prison grievance procedure,

and the failure of state prison officials to follow their own procedures does not, of itself, violate

the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d

1091 (7th Cir. 1982). Prison officials thus incur no liability under Section 1983 if they fail or refuse

to investigate a prisoner’s complaints or grievances. See Geiger v. Jowers, 404 F.3d 371, 374 (5th

Cir. 2005). For these reasons, Plaintiff’s allegation that he requested help to file an appeal

regarding the responses to his grievances from Mental Health Provider VanPelt and that his

requests for help were ignored or denied do not state a claim for a constitutional violation and

Count 10 is dismissed. (Doc. 33, p. 13).

Count 112

Under Illinois law, a plaintiff claiming intentional infliction of emotional distress must

demonstrate that (1) the defendants engaged in extreme and outrageous conduct; (2) the defendants

either intended to inflict severe emotional distress or knew there was a high probability that their

conduct would cause severe emotional distress; and (3) the defendants’ conduct in fact caused

severe emotional distress. McGreal v. Vill. Orland Park, 850 F.3d 308 (7th Cir. 2017). Plaintiff

claims that “individual defendants’ conduct described above was extreme and outrageous”

(Doc.33, p. 28), but in the Complaint only describes the conduct of Weatherford, Dr. Floreani,

Jane Doe, Dr. Leven, Dr. Glenn, VanPelt, (Doc. 33, pp. 6-10), and Wexford (Doc. 33, p. 27), and

2Where a district court has original jurisdiction over a civil action, it also has supplemental jurisdiction over related

state law claims pursuant to 28 U.S.C. § 1367(a), so long as the state claims “derive from a common nucleus of

operative fact” with the original federal claims. Wisc. v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008).

Plaintiff’s state law claim of intentional infliction of emotional distress arise out of the same events occurring at

Menard that gave rise to his federal claims. As such, the Court will exercise supplemental jurisdiction over this

additional state law claim.

offers no other allegations in support of a claim for intentional infliction of emotional distress as

to the other Defendants. At this early stage, the Court cannot say that the standard has not been

met with respect to Wexford, VanPelt, Weatherford, Dr. Floreani, Jane Doe, Dr. Glenn, and Dr.

Leven.Count 11 shall therefore proceed against them.

As to the other Defendants, allegations made collectively against a group of defendants

fails to comply with Rule 8, and so, theclaim of intentional infliction of emotional distress against

Jeffreys, Goldman, Dr. McShan, Lashbrook, Lawrence, Baldwin, Pappas, and Dr. Gupta are

insufficient to state an emotional distress claim and are dismissed. See Brooks, 578 F.3d at 581;

Ashcroft,556U.S. at 678.

Count 12

Plaintiff brings an Eighth Amendment claim for failure to provide dental care against

“dental staff at Menard.” (Doc. 33, p. 29). Dental staff, however,are not listed as defendants in the

case caption. Nor do any of the listed defendants appear to be dental staff. The Court will not treat

individuals not listed in the caption as defendants, and any claims against them are considered

dismissed without prejudice. See Myles, 416 F.3d at 551–52. As such, Count 12 is dismissed

without prejudice.

IDENTIFICATION OF UNKNOWN DEFENDANTS

Plaintiff will be allowed to proceed with Counts 1 and 11 against Jane Doe. Thisdefendant

must be identified with particularity, however, before service of the Second Amended Complaint

can be made on her. Plaintiff will have the opportunity to engage in limited discovery to ascertain

heridentity. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). Once the

name of thisindividualisdiscovered, Plaintiff shall file a motion to substitute the newlyidentified

defendant in place of the generic designations in the case caption and throughout the Second

Amended Complaint. In that vein, the Acting Warden of Menard, Frank Lawrence, will remain a

party in this action, in his official capacity only, and shall be responsible for responding to

discovery aimed at identifying this unknown defendant and implementing any potential order for

injunctive relief. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011).

DISPOSITION

IT IS HEREBY ORDRED that claims regarding Plaintiff’s past or current treatment at

Dixon Correctional Center are SEVERED into a new case. The new case shall be against Rob

Jeffreys, John Varga, John Baldwin,andDr. Raymond Marquez.

In the new case, the Clerk is DIRECTEDto file the following documents:

(1) The Second Amended Complaint (Doc. 33);

(2) Motion for Leave to Proceed in forma pauperis (Doc. 2); and

(3) This Memorandum and Order.

Once the newly severed action is opened, the Clerk of Court is ORDERED to transfer the action

to the United States District Court for the Northern District of Illinois.

IT IS FURTHER ORDEREDthat the only claim remaining in this action are COUNTS

1-12 directed against Wexford, Weatherford, Dr. Floreani, Dr. Goldman, Dr. Leven, Dr.

McShan, Jane Doe, Lashbrook, Lawrence, Baldwin, Jeffreys, Pappas, VanPelt, Dr. Glenn,

Dr. Gupta, Jim Does, and John Does. The Clerk of Court is DIRECTED to terminate John

Varga and Dr. Raymond Marquezas defendants in this action.

IT IS HEREBY ORDERED that for the reasons stated Defendants John Does and Jim

Does are dismissed without prejudice as Defendants from this action. The Clerk of Court is

DIRECTED to terminate them from the Case Management/Electronic Case Filing (“CM/ECF”)

system.

IT IS FURTHER ORDEREDthat the Complaint survives screening pursuant to Section

1915A. Count 1shall proceed against Jane Doe.Count 2shall proceed against Dr. Floreaniand

Weatherford. Count 3 shall proceed against Dr. Leven, and is DISMISSED as to Jeffreys,

Lawrence, Baldwin, Lashbrook, Dr. Goldman, Dr. Floreani, Weatherford, VanPelt, and

Pappas. Count 5 shall proceed against Jeffreys, in his official capacity, and is DISMISSED as

to Lawrence. Count 6 shall proceed against VanPelt, and is DISMISSED as to Jeffreys,

Lawrence, Baldwin, Lashbrook, Dr. McShan, Dr. Goldman, Dr. Gupta, Dr. Glenn, Dr.

Floreani, Dr. Leven, Weatherford, and Pappas. Count 8 shall proceed against Dr. Floreani,

Weatherford, Dr. Leven, Dr. Glenn, and Wexford,and is DISMISSEDas toDr. McShan, Dr.

Goldman, Dr. Gupta,VanPelt,and Pappas.Count 9shall proceed against Dr. Floreani.Count

11shall proceed against Wexford, Weatherford, Dr. Floreani, Jane Doe, Dr. Glenn, Dr. Leven,

and VanPelt, and is DISMISSED as to Dr. Goldman, Dr. McShan, Lashbrook, Lawrence,

Baldwin, Jeffreys, Pappas, and Dr. Gupta.

IT IS FURTHER ORDERED that Counts 4, 7, 10, and 12 are DISMISSED without

prejudice. Because there are no other claims against them, Dr. Goldman, Dr. McShan,

Lashbrook, Baldwin, Pappas, and Dr. Gupta are DISMISSED from this action without

prejudice. The Clerk of Court is DIRECTED to terminate these individuals from the CM/ECF

system.Lawrenceshall remain as a Defendant in his official capacity only, as Warden of Menard

Correctional Center.

IT IS FURTHER ORDERED the Clerk of Court shall prepare for Dr. Floreani,

Weatherford, Dr. Leven, Wexford, VanPelt, Jeffreys, Dr. Glenn, and Lawrence (official

capacity only): (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, and this Memorandum and Order to each Defendant’s 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 that Defendant, and the Court will require

that Defendant 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.

Service shall not be made on the unknown defendant,Jane Doe,until such time as Plaintiff

has identified her by name in a properly filed motion for substitution. Plaintiff is ADVISED that

it is Plaintiff’s responsibility to provide the Court with the names and service addresses for these

individuals.

With the exception of Lawrence,Defendants are ORDEREDto 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 Merit Review Order.

Lawrence is ORDERED to timely enter his appearance. Lawrence, however, does not

need to file an Answer or other responsive pleading. Once Lawrence enters his appearance, the

Court will enter a discovery order setting guidelines for identifying the unknown defendant.

Lawrence will be responsible for responding to discovery requests aimed at identifying the

unknown defendant propounded in accord with this discovery order.

This entire matter shall be REFERRED to a United States Magistrate Judge for

disposition, pursuant to Local Rule 72.2(b)(3) and 28 U.S.C. § 636(c), ifall parties consent to such

a referral.

IT IS ALSO ORDERED that if judgment is rendered against Plaintiff, and the judgment

includes the payment of costs under § 1915, Plaintiff will be required to pay the full amount of the

costs, even though his application to proceed in forma pauperis was granted. See 28 U.S.C.

§ 1915(f)(2)(A).

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

of Court and each opposing party 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: November 15, 2019

Theae omg?

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Chief U.S. District Judge

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