Nelson v. Dennison

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KARNELL NELSON, #N91564, )

)

Plaintiff, )

vs. ) Case No. 20-027-RJD

)

WARDEN DENNISON, )

WARDEN GRISSOM, )

WARDEN WALKER, )

KAREN SMOOT, )

DR. ALFONSO DAVID, )

and C/O DUNNING, )

)

Defendants. )

MEMORANDUM AND ORDER

DALY, Magistrate Judge:

Plaintiff Karnell Nelson, an inmate of the Illinois Department of Corrections (“IDOC”)

currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”), filed this civil rights

lawsuit pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. (Docs.

1, 7). Plaintiff asserts that while he was imprisoned at Shawnee Correctional Center (“Shawnee”),

he was harassed on account of his disability, was confined in unsanitary and dangerous conditions,

and his serious medical needs were met with deliberate indifference, all in violation of the Eighth

Amendment. (Doc. 1, pp. 3-5). He seeks monetary damages, medical care, and a stop to the

harassment. (Doc. 1, p. 8).

This case is now before the Court for a preliminary merits review of the Complaint under

28 U.S.C. § 1915A,1 which requires the Court to screen prisoner Complaints to filter out

1 The Court has jurisdiction to screen the Complaint in light of Plaintiff’s consent to the full jurisdiction of

a magistrate judge and the Illinois Department of Corrections’ and Wexford’s limited consent to the

exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the

Illinois Department of Corrections, Wexford, and this Court.

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. 28 U.S.C. § 1915A(b). The Court must also 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).

The Complaint

Plaintiff makes the following allegations in his Complaint: On November 30, 2018, during

the lunch meal, Defendant C/O Dunning took Plaintiff’s slow walking medical permit and

attempted to have the Health Care Unit terminate it. Dunning continued to harass Plaintiff daily.

(Doc. 1, p. 3).

Defendants Dennison, Grissom and Walker allowed harmful and unhealthy conditions to

persist at Shawnee. (Doc. 1, pp. 3-4). Plaintiff became ill and had trouble breathing and sleeping

because Dennison ordered the windows to be screwed shut in the winter and the ventilation system

was dirty and inadequate. When the outdoor temperature was warm the cell became “steaming

hot” and lacked fresh air. Paint was peeling off the walls and got into Plaintiff’s food, mouth, and

hair. His mattress was stained with human feces and liquids. His food was regularly contaminated

with bleach water which was left pooled in the trays when food was placed on them. Plaintiff

became sick numerous times after eating chow hall food, which was stored at room temperature.

Plaintiff was suffering severe side effects from medication that he took for his Hepatitis C.

He claims that Dr. Alford Davis2 and Wexford Medical Company would not send him to a

specialist and he was charged a $5.00 co-pay each time he sought treatment for his chronic illness.

(Doc. 1, p. 4).

2 “Dr. Alford Davis” is not a named Defendant in this action, however, the Court assumes that Plaintiff is

referring to Defendant Alfonso David, who is a Defendant. (Doc. 1, pp. 1-2).

Plaintiff has severe hearing loss in both ears and was denied hearing aids or other assistive

devices. Defendant Dennison notified Dr. Eithin Wilke of Plaintiff’s condition, but Wilke reported

that Plaintiff did not have any hearing problems. (Doc. 1, p. 4).

Finally, Plaintiff asserts that he was harassed by several Shawnee officials, including

Defendant C/O Dunning, Ms. Smooch,3 Casey Lee, Lt. Browning, C/O Anderson, C/O Moor, and

Kim Johntson, for being disabled. They told Plaintiff there is nothing wrong with him and to stop

complaining because there was nothing they could do. ADA Coordinator Smooch failed to timely

respond to a letter from Plaintiff, forged her name on a permit and changed the dates. (Doc. 1, p.

5).

Preliminary Dismissals

The Complaint raises claims against a number of individuals as well as against Wexford

Medical Company, but the case caption lists only Wardens Dennison, Grissom, and Walker; Karen

Smoot, Dr. Alfonso David, and C/O Dunning. The Court will not treat parties not listed in the

caption as defendants, and any claims against them are dismissed without prejudice.4 See FED. R.

CIV. P. 10(a) (noting that the title of the complaint “must name all the parties”); 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”).

Discussion

Based on the allegations in the Complaint, the Court designates the following claims in

this pro se action:

Count 1: Eighth Amendment deliberate indifference to serious medical needs

claim against C/O Dunning for attempting to terminate Plaintiff’s

3 “Ms. Smooch” is not among the named Defendants, but the Court assumes Plaintiff is referring to

Defendant Karen Smoot. (Doc. 1, pp. 1-2).

4 The individuals are: Dr. Eithin Wilke, Casey Lee, Lt. Browning, C/O Anderson, C/O Moor, and Kim

Johntson. (Doc. 1, pp. 4-5).

medical slow walk permit.

Count 2: Eighth Amendment deliberate indifference claim against Wardens

Dennison, Grissom, and Walker for subjecting Plaintiff to

dangerous and unsanitary cell conditions and contaminated food,

which have caused him to become ill.

Count 3: Eighth Amendment deliberate indifference to serious medical needs

claim against Dr. Alfonso David for failing to treat Plaintiff’s side

effects from his Hepatitis C medication.

Count 4: Eighth Amendment deliberate indifference to serious medical needs

claim against Warden Dennison for failing to address Plaintiff’s

severe hearing loss.

Count 5: Eighth Amendment deliberate indifference claim against Karen

Smoot and C/O Dunning for harassing Plaintiff based on his

disability.

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 Twombly pleading standard.5

Further, the Court notes that Plaintiff’s requests for the Court to order medical care and a

stop to the harassment appear to have become moot due to his transfer away from Shawnee. The

Court will not address these requests for relief unless Plaintiff can show “a realistic possibility that

he will again be incarcerated in the same state facility and therefore be subject to the actions of

which he complains here.” Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v.

Downey, 561 F.3d 664, 668 (7th Cir. 2009)).

Count 1

Prison officials violate the Eighth Amendment’s prohibition against cruel and unusual

5 See 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 that is plausible on its face.”).

punishment when they act with deliberate indifference to a prisoner’s serious medical needs. Rasho

v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state such a claim, a prisoner must plead facts and

allegations suggesting that (1) he suffered from an objectively serious medical condition, and (2)

the defendant acted with deliberate indifference to his medical needs. Id.

Here, the fact that Plaintiff was given a “slow walk” permit indicates that he has a medical

need for it, but he gives no information as to what medical condition gave rise to the permit.

Plaintiff mentions that he has “heart problems” but says nothing more about that issue; he is hard

of hearing but does not connect that condition to the permit. (Doc. 1, p. 4). Based on this minimal

information, the Court cannot determine whether Plaintiff suffered from an objectively serious

medical condition relevant to the slow walk permit. Further, Plaintiff does not claim that C/O

Dunning knew he had an objectively serious medical condition for which he was given the slow

walk permit, nor does he allege that Dunning succeeded in terminating the permit. Plaintiff states

that Dunning’s “harassment continues daily” but does not indicate that his actions resulted in any

harm to Plaintiff or placed him at risk of injury.

These allegations are insufficient to rise to the level of an Eighth Amendment claim.

“[H]arassment, while regrettable, is not what comes to mind when one thinks of ‘cruel and

unusual’ punishment.” Dobbey v. Ill. Dep’t of Corrections, 574 F.3d 443, 446 (7th Cir. 2009). See

also DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal

harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected

liberty interest or deny a prisoner equal protection of the laws.”). Count 1 shall therefore be

dismissed without prejudice.

Count 2

The allegations in the Complaint are sufficient for Plaintiff to proceed on the deliberate

indifference claim in Count 2 against Defendant Wardens Dennison, Grissom, and Walker for

subjecting him to unconstitutional conditions of confinement. He alleges that the conditions

deprived him of safe, uncontaminated food, denied him sanitary bedding, and exposed him to

extremes of temperature and insufficient ventilation which caused him to become ill. He further

suggests these Defendants were aware of at least some of these unhealthy conditions yet took no

steps to remedy them. See Farmer v. Brennan, 511 U.S. 825, 834, 842 (1994); Rhodes v. Chapman,

452 U.S. 337, 346 (1981). “[D]eliberate indifference may be found where an official knows about

unconstitutional conduct and facilitates, approves, condones, or turns a blind eye to it.” Perez v.

Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015). Count 2 shall therefore proceed for further

consideration in this action.

Count 3

This claim concerns Plaintiff’s side effects from medication given to him for Hepatitis C,

alleging that Dr. Alford Davis (construed by the Court to mean Defendant Dr. Alfonso David) was

deliberately indifferent to Plaintiff’s need for treatment of serious symptoms. Plaintiff’s claim in

Count 3 is improperly joined with the claim in Count 2 as well as the remaining claims and will

therefore be severed into a new action. See George, 507 F.3d at 607 (unrelated claims against

different defendants belong in separate lawsuits).

Count 4

Plaintiff’s allegations against Warden Dennison for denial of hearing aids or other assistive

devices fail to state an Eighth Amendment deliberate indifference claim. Plaintiff asserts only that

Dennison “notified Dr. Eithin Wilke6 about [Plaintiff’s] hearing condition[,]” after which the

6 As noted above, Plaintiff failed to name Dr. Eithin Wilke as a Defendant in this action. Should Plaintiff

wish to pursue any claim against Dr. Wilke, he must file a new lawsuit, as unrelated claims against different

defendants may not be joined in a single action. See FED. R. CIV. P. 20; George, 507 F.3d at 607.

doctor told Dennison that Plaintiff had no hearing problems. (Doc. 1, p. 4). This is the opposite of

deliberate indifference on Dennison’s part; referral of a medical issue to a health care provider is

a proper response when a non-medical prison official receives an inmate request. Because the

Complaint does not allege that Dennison engaged in any conduct that placed Plaintiff at risk of

harm, Count 4 shall be dismissed without prejudice.

Count 5

Plaintiff likewise fails to state an actionable claim against Karen Smoot (described in the

body of the Complaint as Ms. Smooch) or C/O Dunning for harassment based on Plaintiff’s

disability. While he asserts that he is disabled, Plaintiff does not describe what condition allegedly

made him a target for harassment. Further, he does not explain how Smoot’s delay in responding

to his letter or alleged forgery of her name and alteration of dates on a permit amounted to cruel

and unusual punishment, or whether her actions deprived him of access to any programs or

accommodations relating to his disability. Finally, as noted in the discussion of Count 1 above,

verbal “harassment” by Smoot and Dunning, consisting only of comments that Plaintiff has

nothing wrong with him and should stop complaining, does not amount to an Eighth Amendment

violation. See Dobbey, 574 F.3d at 446: DeWalt, 224 F.3d at 612. Count 5 shall be dismissed

without prejudice.

Official Capacity Claims

Plaintiff raises claims against each defendant in his or her individual and official capacities.

(Doc. 1, p. 5). However, his claims for monetary damages may only be pursued against state

officials in their individual capacities. Brown v. Budz, 904 F.3d 904, 918 (7th Cir. 2005); Shockley

v. Jones, 823 F.2d 1068, 1070 (7th Cir. 1987). Accordingly, the official capacity claims against

the individual defendants are dismissed without prejudice.

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. See also Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017) (district courts

should not allow inmates to combine multiple lawsuits into a single complaint); 3A Moore’s

Federal Practice § 20.06, at 2036-45 (2d ed. 1978).

Here, the claims in Count 2 against Dennison, Grissom, and Walker for unconstitutional

conditions are not properly joined with the medical deliberate indifference claim in Count 3 against

Dr. David. The Court exercises its authority under Rule 21 and will sever the improperly joined

claims. Count 2 shall remain in this action and Count 3 shall be severed into a separate action. See

FED. R. CIV. P. 21.

Disposition

Severance

IT IS HEREBY ORDERED that COUNT 3 against Dr. Alfonso David is severed into a

new case.

In the new case, the Clerk is DIRECTED to file the following documents:

(1) This Memorandum and Order

(2) The Original Complaint (Doc. 1)

(3) Plaintiff’s motion to proceed in forma pauperis (Doc. 2)

(4) Plaintiff’s notice of change of address (Doc. 7).

IT IS FURTHER ORDERED that the only claim remaining in this action is COUNT 2

against Defendants Dennison, Grissom, and Walker. This case shall now be captioned as:

KARNELL NELSON, Plaintiff, vs. WARDEN DENNISON, WARDEN GRISSOM, and

WARDEN WALKER, Defendants.

IT IS FURTHER ORDERED that Defendant DR. ALFONSO DAVID is

TERMINATED from this action with prejudice.

Merits Review

IT IS HEREBY ORDERED that COUNTS 1, 4, and 5, and DEFENDANTS KAREN

SMOOT and C/O DUNNING are DISMISSED from this action without prejudice.

IT IS FURTHER ORDERED that COUNT 2 against Dennison, Grissom, and Walker

survives preliminary review pursuant to 28 U.S.C. § 1915A and shall proceed in the instant case.

The Clerk of Court shall prepare for Defendants DENNISON, GRISSOM, and

WALKER: (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 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 the Defendant, and the Court will require the

Defendant to 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 and 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. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendants need only respond to the issues stated in this

Merit Review Order.

Plaintiff is ADVISED that if judgment is rendered against him and the judgment includes

the payment of costs under 28 U.S.C. § 1915, he 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).

Plaintiff is further ADVISED that he is under a continuing obligation to keep the Clerk of

Court and the 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 4, 2020

s/ Reona J. Daly

REONA J. DALY

United States Magistrate Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the Defendants of your lawsuit and serve

them with a copy of your Complaint. After service has been achieved, Defendants will enter an

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 Defendants have filed their 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 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. Plaintiff need not submit any

evidence to the Court at this time, unless specifically directed to do so.