The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARDAMIS DARRELL SIMS, )
)
Plaintiff, )
)
vs. ) Case No. 3:20-cv-00335-GCS
)
CHRISTINE BROWN, )
PERCY MYERS, )
SCOTT THOMPSON, )
and )
DAN VEREL, )
Defendants. )
MEMORANDUM & ORDER
SISON, Magistrate Judge:
Before the Court is Plaintiff Sims’s motion for the Court to reconsider allowing the
Plaintiff to file a second amended complaint. (Doc. 79). Specifically, Plaintiff seeks to add
Kim Reeder, a nurse at Pinckneyville Correctional Facility, along with the Illinois
Department of Corrections and David Hess, Jr. as defendants and re-add claims against
Wexford Medical, Travis Bayler, and S. Mercier. For the reasons stated below the Court
GRANTS in part and DENIES in part the motion.
BACKGROUND
On April 7, 2020, Plaintiff Ardamis Sims filed his initial complaint alleging
multiple Eighth Amendment claims against the defendants. (Doc. 1). Thereafter, on July
6, 2020, he filed an amended complaint. (Doc. 10). The Court performed an analysis of
the complaint pursuant to 28 U.S.C. § 1915 to identify legally sufficient claims and to
dismiss those claims that were not legally sufficient. (Doc. 13). Plaintiff was allowed to
proceed on the following claims:
Count 1 – Eighth Amendment claim against Jane Doe Nurse #1, Therapist Dan,
Dr. Myers, Christine Brown, and Scott Thompson for deliberate indifference
towards treating the Plaintiff’s medical needs.
Count 2 – An Illinois medical malpractice claim against Jane Doe Nurse #1,
Therapist Dan, Dr. Myers, Christine Brown, and Scott Thompson.
The following defendants were dismissed without prejudice for failure to state a
claim upon which relief can be granted: Wexford Medical, S. Mercier, Travis Bayler, John
Baldwin, J. Kaimet, and the remaining John and Jane Does.
On January 26, 2021, the Plaintiff filed a second amended complaint with the
Court, which the Court denied the same day due to it not being submitted along with a
motion. (Doc. 69 and 71). Next, Plaintiff submitted a motion to reconsider for leave to file
a second amended complaint with this Court on February 4, 2021. (Doc. 77). The Court
denied the motion for leave to file the second amended complaint on February 5, 2021.
(Doc. 78). On February 5, 2021, Plaintiff filed a motion for reconsideration regarding the
motion for leave to file a second amended complaint. (Doc. 79).
Subsequently, the Court held a hearing on Defendant Varel’s motion for
judgement on the pleadings. (Doc. 81). During the hearing, the Court allowed Defendants
additional time to respond to the motion to reconsider.1 Defendants Brown, Thompson
1 The Court also continued the hearing on the motion for judgment on the pleadings so that the
pending motion to amend could be addressed first.
and Varel oppose the motion to reconsider to the extent that Plaintiff is seeking to re-add
Wexford Health, Travis Bayler, and S. Mercier as defendants and add David Hess Jr. and
the Illinois Department of Corrections as new defendants to this case. Defendants argue
that the proposed second amended complaint is futile as it is based on insufficient
grounds for relief. (Doc. 82 and 83).
ANALYSIS
Under the Federal Rules of Civil Procedure, pursuant to Rule 15(a), a party may
amend a pleading and that leave to amend should be given freely when justice so
requires. The intent of the complaint is to put the defendants on notice, and [the pleading]
is to be freely amended or constructively amended as the case so requires, so long as there
is no unfair surprise or prejudice to the defendants. See Toth v. USX Corp., 883 F.2d 1297,
1298 (7th Cir. 1989). The decision to grant a plaintiff leave to amend under Rule 15(a)(2) is
within the sound discretion of the Court. See Pugh v. Tribune Co., 521 F.3d 686, 698 (7th
Cir. 2007); Orix Credit Alliance v. Taylor Mach. Works, 125 F.3d 468, 480 (7th Cir. 1997).
However, leave to amend may be denied in cases where undue delay, repeated failure to
cure deficiencies by amendments previously permitted, undue prejudice against the
opposing part[ies], futility of the proposed amendment, and bad faith was present. See
Foman v. Davis, 371 U.S. 178, 182 (1962). The Court also has the authority to deny a motion
for leave to amend for reasons of futility where the proposed amendment would not
survive a motion to dismiss.
In his proposed second amended complaint, Plaintiff seeks to re-add Wexford
Medical, Travis Bayler, and Shayne Mercier as defendants after the Court dismissed them
during its threshold review. Plaintiff also seeks to add new claims against the Illinois
Department of Corrections and David Hess, Jr.
A. Kim Reeder
After reviewing the proposed second amended complaint, the Court finds that
Plaintiff has successfully identified Kim Reeder as Jane Doe Nurse #1. The proposed
second amended complaint alleges that Reeder failed to take proper care of Plaintiff in
regard to his needs for a wrist brace, continued steroid shots for his wrist, a bottom bunk
permit, the glasses he had at his prior correctional facility, and his access to high blood
pressure medication. Plaintiff alleges that Reeder told him that he would need to see a
doctor at Pinckneyville in order to renew his bottom bunk permit. Reeder, however,
never scheduled a visit with a doctor consistent with Plaintiff’s need for a medical
evaluation when he transferred correctional facilities. Plaintiff also alleges that Reeder
failed to document his need for high blood pressure medication. As such, Plaintiff lacked
access to his medication for three weeks, which resulted in Plaintiff suffering from
headaches and dizziness. At this stage of the proceedings these allegations are sufficient
to allow Counts 1 and 2 to proceed against Reeder.
B. Wexford Health
Next, the Court finds that the proposed second amended complaint remains
insufficient to support a claim against Wexford Health. As stated in the § 1915(A) review
a corporation cannot be held liable on the basis of Respondeat Superior or supervisory
liability because it is not recognized under § 1983. The allegations presented in the
proposed second amended complaint are that Wexford has charge over Illinois
Department of Corrections (“IDOC”) and has the authority to order that medical care be
provided to inmates in IDOC custody. Plaintiff alleges the Wexford Health was
contracted by the IDOC to provide medical care for offenders at specific correctional
institutions. Based on these allegations, Plaintiff is still proceeding under the supervisory
theory laid out in his first amended complaint. This is insufficient to reintroduce Wexford
Medical as a defendant because such a theory of liability is prohibited as a cause of action
under § 1983.
C. Travis Bayler and S. Mercier
Likewise, the Court finds that Plaintiff has not added new factual allegations to
bring claims against Bayler and Mercier in the proposed second amended complaint. In
the § 1915(A) review, the Court dismissed the claims against these defendants because
the plaintiff only alleged that they denied his grievances. As stated in that review, the
denial or mishandling of a grievance does not amount to a constitutional violation. See
Owens v. Hinsley, 635 F. 3d 950, 953 (7th Cir. 2011). In the proposed second amended
complaint, Plaintiff alleges that he received no response from Mercier or Bayler in
response to his grievances against Hess. However, the alleged mishandling of a
prisoner’s grievance by persons who otherwise did not cause or participate in the
underlying conduct states no claim. See George v. Smith, 507 F.3d 605, 609-610 (7th Cir.
2007). Therefore, the proposed second amended complaint fails to state a claim, and
Plaintiff cannot proceed against Bayler and Mercier.
D. Illinois Department of Corrections
Plaintiff also seeks to add the IDOC in its official capacity as a defendant in this
case. Plaintiff alleges that it is the responsibility of the IDOC to administer the operations
of IDOC institutions, which are obligated to provide health and medical services to the
offenders incarcerated within its institutions. Plaintiff, however, fails to allege with any
specificity how the IDOC violated his Eighth Amendment rights or any protected rights.
The proposed second amendment does nothing more than mention this alleged
responsibility of the IDOC and contains no factual allegations suggesting that the IDOC
was involved in violating his constitutional rights.
The Eleventh Amendment to the United States Constitution further bars private
litigants, such as Plaintiff here, from suing non-consenting states in federal courts.
Although there are exceptions for causes of actions where Congress had abrogated the
traditional immunity states enjoy, in Kroll v. Bd. Of Trustees of Univ. of Ill., the court held
that state agencies are “arms of the state” and as such are also immune from suit under
the Eleventh Amendment. 934 F.2d 904, 907 (7th Cir. 1991). Additionally, the Supreme
Court has ruled that states, and their departments are not “persons” within the meaning
of § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 71 (1989). Given that the claim
against the IDOC is barred by the Eleventh Amendment, the claim is futile and as such,
this Court will not allow Plaintiff to proceed with his claim against the IDOC.
E. David Hess, Jr.
Lastly, the Court similarly finds that the proposed second amended complaint
fails to allege a claim against Hess. Plaintiff alleges that Hess would not process the
grievances he filed against Varel nor those against himself. However, Plaintiff admits in
his proposed second amended complaint that Hess responded to his initial complaint
against Varel. (Doc. 79, ¶ 68). Additionally, when Plaintiff filed a complaint against Hess
himself, Hess responded to the grievance informing Plaintiff that the issue was moot. Id.
¶ 70. Therefore, Plaintiff’s allegations that Hess would not process his grievances is
inaccurate and there are no other factual allegations against Hess. Accordingly, because
the only allegation against Mr. Hess is the denial or mishandling of his grievances, and
the denial or mishandling of a grievance is not a constitutional violation on which relief
can be granted, Plaintiff cannot proceed with this claim against Hess. See Owens, 635 F. at
953.
CONCLUSION
Accordingly, the Court GRANTS in part and DENIES in part the motion to
reconsider. (Doc. 79). The Court DIRECTS the Clerk of the Court to file Plaintiff’s second
amended complaint. Further, the Court ALLOWS Plaintiff to add Kim Reeder as a
defendant in Counts 1 and 2. The following claims (the enumeration of the counts set
forth below shall be used by the Court and the parties for the remainder of this litigation):
Count 1 – Eighth Amendment claim against Kim Reeder, Dan Varel, Percy Myers,
Christine Brown, and Scott Thompson for deliberate indifference towards treating
the Plaintiff’s medical needs.
Count 2 – An Illinois medical malpractice claim against Kim Reeder, Dan Varel,
Percy Myers, Christine Brown, and Scott Thompson.
The Court DIRECTS the Clerk of the Court to prepare for Kim Reeder: (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 Court DIRECTS the Clerk of the Court to mail these
forms, a copy of the proposed amended complaint and this Memorandum and Order to
the Defendants’ place of employment as identified by Plaintiff. If one of the Defendants
fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk of the
Court within 30 days from the date the forms were sent, the Clerk of the Court shall take
appropriate steps to effect formal service on that 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.
The Court DIRECTS the defendants to file an appropriate responsive pleading to
the amended complaint in a timely manner and shall not waive filing a reply pursuant to
42 U.S.C. § 1997e(g). Once the defendants have answered the amended complaint, the
Court will issue an amended scheduling and discovery order.
IT IS SO ORDERED.
DATED: March 23, 2021. Pigttlly signed
© rage bite 2021 0303
10:49:13 -05'00'
GILBERTC.SISON
United States Magistrate Judge
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