“[T]he alleged mishandling of [a prisoner’s] grievance by persons who otherwise did not cause or participate in the underlyingconduct states no claim.”
How later courts described this case
- “[T]he alleged mishandling of [a prisoner’s] grievance by persons who otherwise did not cause or participate in the underlyingconduct states no claim.”
- individual capacity claims are not available; the proper defendant is the agency or its director (in his official capacity)
- defendants must be “specif[ied] in the caption”
- an action 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”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRYANT HARVEY, JR., )
)
Plaintiff, )
)
vs. ) Case No. 20-cv-384-NJR
)
)
WEXFORD HEALTH SOURCES, JOHN )
VARGA, DEEDEE BROOKHART, )
MERRILL J. ZAHTZ, LORIE )
CUNNINGHAM, AMBER ALLEN, )
MICHAEL REMMERS, SHELIA )
LEWIS, RUSSELL GOINS, TAMMY )
WELTY, MATT BOESECKER, C/O )
FIERO, LT. DEWEESE, C/O )
MARSHALL, C/O CARTER, C/O )
GOBLE, C/O PERKINS, LT. )
MCDONALD, SGT. ACKERMAN, LT. )
ECKLEBERRY, ROB JEFFREYS, and )
JOHN BALDWIN, )
)
Defendants. )
MEMORANDUM AND ORDER
ROSENSTENGEL,ChiefJudge:
PlaintiffBryant Harvey, Jr., an inmateofthe Illinois Department of Corrections (“IDOC”)
who is currently incarcerated at Lawrence Correctional Center (“Lawrence”), brings this action
pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights while he was housed at
both Dixon Correctional Center (“Dixon”) and Lawrence. In the Complaint, Plaintiff alleges
Defendants were deliberately indifferent to his conditions of confinement and his medical needs.
He asserts claims against the defendants under the Eighth and First Amendments, as well as the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Rehabilitation Act
(“RA”), 29 U.S.C. §§ 794–94e. Plaintiff seeks declaratory judgment, monetary damages, and
injunctive relief.
This case is now before the Court for preliminary review of the Complaint pursuant to 28
U.S.C. §1915A.Under Section1915A, the Court is required to screen prisoner complaints to filter
out non-meritorious claims. See 28 U.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. 28 U.S.C.
§1915A(b).
The Complaint
Plaintiff makes the following allegations in the Complaint: Plaintiff is a handicapped
individual who is wheelchair bound and suffers from sickle cell anemia (Doc. 1, p. 11). He has
also been diagnosed with avascular necrosis in both shoulders and hips, bi-con cave of the
vertebrasin his lower back, and acute chest syndrome of his lungs which causes him to need daily
oxygen (Id.). He has been informed by Carle Hospital that he needs surgery or his body will
continue to deteriorate and his condition might be fatal (Id. at p. 30).
In June 2018 while still at Dixon, Plaintiff was approved for hip surgery and he was
scheduled for a consultation in July 2018. To prevent Plaintiff from attending the consultation,
Allen, the healthcare unit administrator,and Zahtz, the medical director,removed his medical hold
and submitted him for a transfer to Lawrence (Id. at p. 12). He informed Warden Varga about his
need for surgery and the attempt to transfer him, but Varga failed to help him (Id. at p. 17). While
still at Dixon, Plaintiff was placed in a cell without running water, toilet, or a table (Id. at p. 12).
He informed Varga, Remmers, and Baldwin about the conditions but they did not move him (Id.
at pp. 12-13).Another correctional officer eventually moved him to another cell, but he was moved
back to a non-ADA cell a few days later (Id. at p. 13).He again told Remmer that he was not in a
proper cell, and Remmer told him that he would continue to be punished for writing grievances
(Id. at p. 14). He also informed Zahtz about the condition of his cell and his need for surgery and
Zahtz told him that he would place him in an ADA cell.Zahtzalso informed Plaintiff that Wexford
did not want to pay for his surgery (Id.). He later requested that Zahtz renew his pain medication,
but he was ignored (Id.). He wrote requests to Varga and Baldwin asking to be removed from the
cell (Id.at p. 16). Remmer informed Plaintiff that he would have him transferred sothat he would
not receive the surgeries that he needed (Id. at p. 16).
After Plaintiff transferred to Lawrence, he spoke to Dr. Lynn Pittman about his approved
hip surgery and Dr. Ritz told her that Plaintiff’s x-rays and request would need to be re-presented
for review due to his transfer (Doc. 1, p. 17). He wrote Brookhart about his need for surgery, his
continued pain, and the recommendation for surgery from the University of Illinois Hospital at
Chicago(“UIC”), but his request was ignored (Id. at p. 17).
On July 14, 2019, Plaintiff had trouble breathing and asked Boesecker and Lewis to go to
the healthcare unit but they refused (Doc. 1, p. 18). A few hours later, Plaintiff started convulsing
and fell out of his wheelchair (Id.). He previously had breathing treatments and Welty made him
finish early because the machine was too loud (Id.).
On August 1, 2019, Fiero attempted to poison Plaintiff by placing bleach in his ice in
retaliation for filing grievances (Doc. 1, p. 19).
Plaintiff was later placed in a non-ADA cell with no access to a toilet (Doc. 1, p. 19). He
was forced to crawl on the floor and was not provided with an attendant. He requested a transfer
to an ADA cell from Kelly but was not moved (Id.). He also sent requests for proper
accommodationsto Brookhart, Goins, Cunningham, and Jeffreys (Id. at pp. 20-21).He was denied
meals by Marshall on several occasions because he could not crawl fast enough to the cell door
when the feed chuck was opened (Id.). He also asked DeWeese, Marshall, Carter, Goble, Perkins,
McDonald, Ackerman, and Eckleberry, officers in his housing unit, for proper placement but they
refused to assist him (Id. at pp. 20-22). Goble also refused to allow an assistant to push Plaintiff to
the healthcare unit despite having an order for a wheelchair pusher (Id. at p. 23).
On January 7, 2020, he wrote letters to Brookhart and Jeffreys asking for his approved and
recommended surgeries (Doc. 1, p. 21). He informed Brookhart in an emergency grievance that
he was not receiving proper treatment and that his condition was deteriorating causing him to be
unable to care for himself.Heinformed her that he needed an assistant to help him access the toilet.
She denied the grievance (Id. at p. 22). He was denied pain medications on numerous occasions
by Welty (Id. at pp. 22-23). He informed Goins of Welty’s actions but, but he failed to provide
him with proper medical treatment (Id. at p. 23). His lack of pain medications has also caused his
condition to deteriorate (Id.).
Plaintiff was placed in the infirmary, but he was not provided with a bed. Instead he was
provided with a reclining chair (Doc. 1, p. 24). He informed Cunningham, Goins, and Brookhart
about his lack of bed, but they informed it was still on order. He also asked Brookhart and
Cunningham for a transfer so that he would be closer to Carle Hospital, where he was receiving
treatment, but they refused (Id.). Carle requested a transfer for Plaintiff so that he was closer to
UIC where his procedures could begin, but Brookhart and Cunningham refused the transfer (Id.).
He also alleges that Goins and Jeffreys failed to transfer him to a facility closer to UIC. Dr. Pittman,
the medical director at Lawrence, also asked that he be transferred but still he is refused a transfer
and his condition continues to worsen (Id. at p. 25). Dr. Pittman also ordered that he receive I.V.
fluids but the nurses were unable to get the I.V. started and told Plaintiff that Welty would put the
I.V. in later (Id. at p. 26). Welty never put in the I.V. as was ordered by Dr. Pittman. Because he
has not received his needed surgery, Plaintiff is now bedridden, has no use of his arms and
shoulders, and needs 24-hour care (Id. at p. 29).
Plaintiff further alleges that his improper care was caused by Wexford Health Sources’
policies of not paying for needed surgeries, haphazardly treating inmates, and disregarding
recommendations on medical treatment (Id. at p. 27).
Preliminary Dismissals
Plaintiff identifies a number of individuals in the body of his Complaint that he fails to
identify as defendants or list in the caption of his Complaint.This includes allegations against Jane
Doe Nurses, Counselor Gray, C/O Kilmer, and Dr. Ritz. To the extent that Plaintiff attempts to
bring claims against these individuals who are included in the case caption, these individuals will
not be treated as defendants in this case, and any claims against them should be considered
dismissed without prejudice. See Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005)
(defendants must be “specif[ied] in the caption”).
Plaintiff also alleges that grievance officer Livingston denied every grievance he sent and
failed to properly investigate his claims (Doc. 1, pp. 19 and 28). But the denial or mishandling of
a grievance does not amount to a constitutional violation. Owens v. Hinsley, 635 F.3d 950, 953
(7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner’s] grievance by persons who otherwise
did not cause or participate in the underlyingconduct states no claim.”); George v. Smith, 507 F.3d
605, 609-10 (7th Cir. 2007). Because Plaintiff only alleges that Livingston denied and did not
properly investigation his grievances, the claims against her are DISMISSED without prejudice.
Discussion
Based on the allegations in the Complaint, the Court finds it convenient to divide the pro
seaction into the following tencounts:
Count 1: Allen, Zahtz, Remmers, and Vargawere deliberately indifferent
under the Eighth Amendment to Plaintiff’s medical needs while
at Dixon.
Count 2: Varga, Baldwin, and Remmers were deliberately indifferent
under the Eighth Amendment to Plaintiff’s need for an ADA
accessible cell while at Dixon.
Count 3: Defendants at Dixon violated Plaintiff’s rights under the ADA
and RA when they failed to provide him with an ADA accessible
cell.
Count 4: Remmers retaliated against Plaintiff in violation of the First
Amendment by refusing to remove Plaintiff from an inaccessible
cell.
Count5: Fiero retaliated against Plaintiff in violation of the First
Amendment by putting bleach in Plaintiff’s ice.
Count 6: Defendants Goins, Kelly, DeWeese, Marshall, Carter,
Brookhart, Jeffreys, Goble, Perkins, McDonald, Ackerman, and
Eckleberry were deliberately indifferent under the Eighth
Amendment to Plaintiff’s need for an ADA accessible cell and
other assistanceat Lawrence.
Count 7: Defendants at Lawrence violated Plaintiff’s rights under the
ADA and RA when they failed to provide him with an ADA
accessible cell.
Count 8: Lewis, Boesecker, and Welty were deliberately indifferent
under the Eighth Amendment to Plaintiff’s need for breathing
treatments.
Count 9: Jeffreys, Brookhart, Cunningham, Goins, and Welty were
deliberately indifferent under the Eighth Amendment to
Plaintiff’s need for medical care including the need for surgery,
pain medications, and access to a wheelchair assistant.
Count 10: Wexford was deliberately indifferent under the Eighth
Amendment to Plaintiff’s medical needs by having policies and
practices that prevented Plaintiff from obtaining surgery and
medical care while at Dixon and Lawrence.
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 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
Severance
Plaintiff’s Count 5 retaliation claim against Fiero is unrelated to the other claims in this
case.Accordingly, consistent with Georgev. Smith, 507 F.3d 605, 607 (7th Cir. 2007) and Federal
Rules of Civil Procedure 18 and 20, the Court will sever Count 5 into a separate action against
Defendant Fieroand will open a new case with a newly-assigned case number.
Count 1
At this stage, Plaintiff states a viable claim for deliberate indifference to his medical needs
against Allen, Zahtz, Remmers, and Varga.Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham
v. Davis, 839 F.3d 679, 684 (7th Cir. 2016); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)
(delay in treatment).
Count 2
He also states a viable claim for unconstitutional conditions of confinement at Dixon
against Varga, Baldwin, and Remmers. Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008);
Dixon v. Godinez,114 F.3d 640, 643 (7th Cir.1997).
1See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(an action 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”).
Count 3
Plaintiff’s allegations are also sufficient to articulate a colorable ADA and/or RA claim.
This claim cannot proceed against the individual defendants, however, because individual
employees of IDOC cannot be sued under the ADA or the RA. Jaros v. Illinois Dep’t of Corrs,
684 F.3d 667, 670 (7th Cir. 2012). The proper defendant is the relevant state department or agency.
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)). As such, Rob
Jeffreys, the IDOC Director, is in the case, in his official capacity only,for purposes of Plaintiff’s
ADA/RA claim.
Count 4
Plaintiff also states a viable retaliation claim against Remmers. Antoine v. Ramos, 497 F.
App’x 631, 633-34 (7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009).
Count 6
He also states a viable unconstitutional conditions of confinement claim at Lawrence
against Goins, Kelly, DeWeese, Marshall, Carter, Brookhart, Jeffreys, Goble, Perkins, McDonald,
Ackerman, and Eckleberry. Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008); Dixon v.
Godinez,114 F.3d 640, 643 (7th Cir.1997).
Count 7
Plaintiff also states a viable ADA and/or RA claim for his conditions at Lawrence.
Accordingly, Count 7 will proceed against Rob Jeffreys (official capacity only).
Count 8
Plaintiff also states a viable claim for deliberate indifference to his medical needs against
Lewis, Boesecker, and Welty.Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839
F.3d 679, 684 (7th Cir. 2016); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (delay in
treatment).
Count 9
Plaintiff states a viable claim for deliberate indifference to medical needs against Jeffreys,
Brookhart, Cunningham, Goins, and Welty.Estelle v.Gamble, 429 U.S. 97, 104 (1976); Chatham
v. Davis, 839 F.3d 679, 684 (7th Cir. 2016); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)
(delay in treatment). But he cannot proceed with claims for monetary damages against them in
their official capacities. See Brown v. Budz, 398 F.3d 904, 918 (7th Cir. 2005); Shockley v. Jones,
823 F.2d 1068, 1070 (7th Cir. 1987).To the extent Plaintiff seeks injunctive relief, only the official
capacity claim against Rob Jeffreys remains. All other official capacity claims are DISMISSED
without prejudice.
Count 10
Plaintiff also states a viable claim against Wexford for their policies and practices.
Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004).
Temporary Restraining Order and/or Preliminary Injunction
Along with his Complaint, Plaintiff filed a motion for temporary restraining order and
preliminary injunction (Doc. 4). Plaintiff alleges that he needs multiple surgeries due to his
avascular necrosis and sickle cell disease.Only UIC is willing to do the surgeries, the first of which
would be on his hips, but he is being refused a transfer to a prison closer to the hospital as requested
by UIC.Plaintiff asks to be transferred to a prison closer to UIC,as well as an appointment with a
specialist to determine when surgery can take place.
A TRO may issue without notice only if “specific facts in an affidavit or a verified
complaint clearly show that immediate or irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). Such
injunctive relief is also warranted “to prevent a substantial risk of serious injury from ripening into
actual harm.” Farmer v. Brennan, 511 U.S. 825, 845 (1994). Plaintiff has not shown that he will
suffer any immediate injury such that he cannot wait for a response from the Court. His request
for TRO is DENIED. The Court does, however, find Plaintiffs allegations concerning as he
alleges a deteriorating condition leaving him currently bedridden. Because of the seriousness of
the allegations, the Court DIRECTS Rob Jeffreys and Wexford Health Sources to respond in an
expedited fashion. Responses to Plaintiffs motion for preliminary injunction shall be filed on or
before May 15, 2020.
Motion to Appoint Counsel
Given the seriousness and breadth of the allegations, the Court finds that counsel is
warranted in this case. The Court will appoint counsel by separate order.
Disposition
For the reasons stated above, Grievance Officer Livingston is DISMISSED without
prejudice and the Clerk is DIRECTED that terminate Livingston from the Court’s Case
Management/Electronic Case Filing (“CM/ECFP’”) system.
COUNT 5 is SEVERED into a new case against C/O Fiero. In the new case, the Clerk is
DIRECTED to file the following documents:
e This Memorandum and Order;
e The Complaint (Doc. 1);
e Plaintiffs motion to proceed in forma pauperis (Doc. 2); and
e Plaintiff’?s motion for recruitment of counsel (Doc. 3)
The claims that remain in this case are Counts 1-4 and 6-10.
10
Count 1 shall proceed against Amber Allen, Merrill Zahtz, Michael Remmers, and John
Varga. Count 2 shall proceed against Varga, John Baldwin, and Michael Remmers. Count 3 shall
proceed against Rob Jeffreys (official capacity only). Count 4 shall proceed against Remmers.
Count 6 shall proceed against Russel Goins, Correctional Officer (“CO”) Kelly, Lieutenant (“Lt.”)
DeWeese, C/O Marshall, C/O Carter, DeeDee Brookhart, Rob Jeffreys (individual capacity), C/O
Goble, C/O Perkins, Lt. McDonald, Sergeant (“Sgt.”) Ackerman, and Lt. Eckleberry.Count 7 shall
proceed against Rob Jeffreys (official capacity only). Count 8 shall proceed against SheilaLewis,
Matt Boesecker, and Tammy Welty. Count 9 shall proceed against Rob Jeffreys (official and
individual capacity), DeeDee Brookhart, Lori Cunningham, Russell Goins, and Tammy Welty.
Count 10 shall proceed against Wexford Health Sources.
The Clerk of Court shall prepare for Defendants Wexford Health Sources, John Varga,
DeeDee Brookhart, Merrill Zahtz, Lori Cunningham, Amber Allen, Michael Remmers, Sheila
Lewis, Russell Goins, Tammy Welty, Matt Boesecker, C/O Kelly, Lt. Deweese, C/O Marshall,
C/O Carter, C/O Goble, C/O Perkins, Lt. McDonald, Sgt. Ackerman, Lt. Eckleberry, Rob Jeffreys
(official and individual capacity), and John Baldwin: (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
the defendants’ 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 to pay the full costs of formal service, to the extent
authorized by the Federal Rules of Civil Procedure.
If a defendant can no longer 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,
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.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. Section 1997e(g). Pursuant to
Administrative Order No. 244, Defendants need only respond to the issues stated in this
Merit Review Order.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, regardless of
whether his application to proceed in forma pauperis is 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: 5/1/2020 Tt
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
12
Notice to Plaintiff
The Court will take the necessary steps to notify the appropriate defendants of your lawsuit
and serve them with a copy of your complaint. After service has been achieved, the defendants
will enter their appearance and file an Answer to your Complaint. It will likely take at least 60
days from the date of this Order to receive the defendants’ Answer, but it is entirely possible that
it will take 90 days or more. When all the defendants have filed Answers, the Court will enter a
Scheduling Order containing important information on deadlines, discovery, and procedures.
Plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions,
to give the defendants notice and an opportunity to respond to those motions. Motions filed before
defendants’counsel has filed an appearance will generally be denied as premature. Plaintiffneed
not submit any evidence to the Court at this time, unless specifically directed to do so.