The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRY ROGERS, )
#R-11363 )
Plaintiff, )
)
vs. ) Case No. 18-cv-22-DWD
)
JOHN BALDWIN, et al., )
)
Defendant. )
MEMORANDUM AND ORDER
DUGAN, District Judge:
This matter is before the Court on the Motions for Summary Judgment filed by
Defendants Elizabeth Knop, Michael Moldenhauer, and Lashaya Donaby (“Nurse
Shaya”) (Doc. 134) and John Baldwin, Jacqueline Lashbrook, and Ron Skidmore (Doc.
136). Plaintiff has filed responses in opposition (Docs. 139-142). The Motions are
GRANTED IN PART.
Background
Following a review of the Complaint pursuant to 28 U.S.C. § 1915A and dismissal
of the Doe defendants, Plaintiff proceeded on the following claims related to the present
Motions:
Count 6 - Donaby, Reva Engelage, Skidmore, Knop, and Moldenhauer
were deliberately indifferent to Plaintiff's injuries from excessive force in
violation of the Eighth Amendment;! and
1 Defendants Donaby, Knop and Skidmore were originally identified as “Shaya,” “Elizabeth” and “Ron”
by Plaintiff and in the Screening Order.
Count 7 – Lashbrook and Baldwin were deliberately indifferent to the
serious risk of harm posed by the other defendants’ campaign of
harassment when they refused to transfer Plaintiff out of Menard after
being made aware of his complaints through the grievance process in
violation of the Eighth Amendment.
(Docs. 5, 75). Knop, Moldenhauer, Donaby and Skidmore move for summary judgment
in their favor on Count 6, while Lashbrook and Baldwin seek dismissal of Count 7.
Material Facts
As they relate to Counts 6 and 7, the pertinent material facts are as follows:
Plaintiff alleges that he was assaulted by staff while housed at Lawrence
Correctional Center (“Lawrence”) on August 24, 2017, and then transferred to Menard
Correctional Center (“Menard”) and assaulted again.
Plaintiff was seen by an intake nurse on August 24, who recorded a history of
gastroesophageal reflux disease (GERD) and asthma. The nurse noted that he was taking
two asthma medications (Xopenex and Alvesco) and three psychotropic medications,
each due to expire on September 3, 2017. He was seen again later that day by Nurse
Gregson, who ordered that he continue his medications and referred him to the Asthma
Chronic Clinic and mental health. There is some disagreement as to whether Plaintiff
had his asthma medication inhalers on this date, though Plaintiff testified that he was
deprived of both medications for approximately 30 days after arrival at Menard and
suffered asthma symptoms as a result. (Doc. 135-1, p. 15).
Medical records show that Defendant Donaby dispensed Plaintiff’s psychiatric
medications to him on August 25, 2017, while Defendant Knop did the same on August
28, 2017. Defendant Moldenhauer saw Plaintiff on August 31, 2017.
On September 25, 2017, Plaintiff was seen at sick call by Defendant Nurse
Skidmore with complaints of headaches, dizziness, blurred vision and nausea due to
recent head trauma. He also complained of pain in his right wrist and thumb. He was
given ibuprofen and referred to the doctor for the head injury.
On October 12, 2017, Plaintiff was again seen by Moldenhauer. He complained of
headache and right thumb numbness, as well as watery eyes and sinus pressure. Plaintiff
was prescribed allergy medications, prescription-strength ibuprofen and Pepcid.
Plaintiff was seen against by Skidmore on November 7, 2017 for his thumb injury.
Skidmore referred him for a doctor’s consultation. Plaintiff was seen by Moldenhauer on
November 12, 2017. Moldenhauer prescribed naproxen and ordered an x-ray. No
fractures or dislocations were noted.
Moldenhauer saw Plaintiff again on March 1, 2018 for right thumb issues, with
complains of numbness two to three times per day. Despite good range of motion and
no edema, Moldenhauer referred Plaintiff’s chart to the medical director for review and
prescribed naproxen. Plaintiff was eventually referred to physical therapy.
During the course of these encounters, Plaintiff alleges that he wrote multiple
letters to Warden Lashbrook and then-Director of IDOC Baldwin regarding his medical
care and conditions of his confinement. (Doc. 135-1, pp. 17-18). He also alleges that he
spoke directly with Lashbrook about his situation on one occasion when she was doing
rounds. (Id.). Only one of these letters, mailed to Baldwin and dated October 3, 2017, is
in the record. (Doc. 55-3, pp. 73-74).
Plaintiff also filed numerous grievances regarding his situation, some of which
were appealed to the state Administrative Review Board (“ARB”). Baldwin states that
he never reviewed Plaintiff’s ARB submissions, instead delegating the responsibility of
reviewing and confirming ARB decisions to a member of the ARB, who would sign his
name. Similarly, Lashbrook states she reviewed one grievance submitted as an
emergency (and agreed that it should be expedited), but otherwise delegated authority
to Internal Affairs officers regarding review of staff misconduct and grievance officer
reports. As a result, Baldwin and Lashbrook claim they were not aware of the contents
of the grievances or their final disposition.
Discussion
Summary judgment is proper only if the moving party can demonstrate that there
is no genuine issue as to any material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The moving party is entitled to summary judgment where the
non-moving party “has failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. When
deciding a summary judgment motion, the Court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex
Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
However, if the evidence is merely colorable, or is not sufficiently probative, summary
judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). A
genuine issue of material fact remains “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248.
Count 6
In order to prevail on an Eighth Amendment claim for deliberate indifference to a
medical condition, a plaintiff must show (1) that his condition was objectively,
sufficiently serious and (2) that the prison officials acted with a sufficiently culpable state
of mind. Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008). A serious medical need is one
that has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s attention.
Foulker v. Outagamie County, 394 F.3d 510, 512 (7th Cir. 2005). The second prong is
satisfied by a showing that “the defendants actually knew of a substantial risk of harm to
the inmate and acted or failed to act in disregard of that risk.” Walker v. Benjamin, 293
F.3d 1030, 1037 (7th Cir. 2002).
There are three distinct alleged serious medical needs: the cuts and bruises from
his rough handling the day he was transferred, his asthma, and pain in his thumb and
wrist. Defendants Moldenhauer, Donaby and Knop argue that the cuts and bruises were
not sufficiently serious to satisfy the first element of the claim. Not “every ache and pain
or medically recognized condition involving some discomfort can support an Eighth
Amendment claim[.]” Gutierrez v. Peters, 111 F.3d 1364, 1372 (7th Cir. 1997). Small cuts,
scrapes and bruises may be found too minor to qualify as objectively serious on summary
judgment. See Harper v. Stefonek, No. 18-C-753, 2019 WL 2422882, at *6 (E.D. Wis. June
10, 2019), Morrisette v. Boyd, No. 16-3140, 2016 WL 4059185, at *3 (C.D. Ill. July 29, 2016),
and Williams v. Elyea, 163 F. Supp. 2d 992, 998 (N.D. Ill. 2001). However, asthma “can be,
and frequently is, a serious medical condition, depending on the severity of the attacks.”
Board v. Farnham, 394 F.3d 469, 484 (7th Cir. 2005). Here, a doctor has diagnosed the
condition and prescribed multiple medications to treat it. Plaintiff testified that he was
deprived of these medications, and he suffered asthma attacks as a result. (Doc. 135-1, p.
15). This is sufficient to create a genuine issue of material fact for summary judgment.
Similarly, untreated chronic pain can be a serious medical condition. Grieveson v.
Anderson, 538 F.3d 763, 779 (7th Cir. 2008). Plaintiff’s testimony regarding ongoing hand
pain and numbness is sufficient to defeat summary judgment on the issue of whether it
was an objectively serious medical condition.
As to the “culpable state of mind” requirement, there are genuine issues of
material fact as to whether Moldenhauer, Knop and Donaby were deliberate indifference
regarding his asthma medication. Plaintiff testified that he told all three about his asthma
situation and that all three failed to take steps to address the situation. (Doc. 135-1, pp.
23, 24 and 26). Donaby and Knop’s counsel has submitted declarations that they do not
recall Plaintiff informing them that he did not have his asthma inhalers and would “most
likely would have written a note to the pharmacy to request his inhalers for him” if they
had known. (Docs 135-3 and 135-4). However, these declarations are unsigned.
Moreover, Plaintiff’s testimony to the contrary creates a genuine issue of material fact on
these issues. Donaby and Knop’s statements are hypothetical assertions of what they
would have done, and the absence of such actions is not sufficient to render the issue
settled for summary judgment purposes. Knop and Donaby also claim that they did not
have any spare inhalers with them during medication rounds and would not have the
authority to give them out if they did. However, their unsigned declarations indicate that
they could have at least put in a note to request the inhalers for him, and the evidence
shows that they did not. This fact could be interpreted by a jury two ways: either they
were not aware of Plaintiff’s alleged need, or they were and chose to ignore him. If the
jury credited Plaintiff’s testimony, the latter could be sufficient to support a claim for
liability.
Plaintiff’s remaining claim against Moldenhauer and the entirety of his claim
against Skidmore2 revolve around his ongoing thumb/wrist pain, and there the evidence
shows no remaining issue of material fact. Both Moldenhauer and Skidmore provided
treatment to Plaintiff for his hand issue. Skidmore provided pain medication and twice
referred Plaintiff for a doctor’s consultation. Moldenhauer provided physical
examinations, referred him for testing and tried several different pain treatments. These
are not situations where Plaintiff’s condition was completely ignored, but instead where
the treatments administered are alleged to be ineffective or insufficient. In such
situations, “[a] plaintiff can show that the professional disregarded the need only if the
professional’s subjective response was so inadequate that it demonstrated an absence of
professional judgment[;] that is, that no minimally competent professional would have
so responded under those circumstances.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011) (citing Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)). Plaintiff presents no evidence
that either Moldenhauer or Skidmore responded outside the bounds of accepted
2 Plaintiff asserts in his Response that Skidmore was deliberately indifferent to Plaintiff’s lack of asthma
medication but provides no citations to evidence. Instead, the evidence presented shows that he saw
Skidmore for head and hand issues. (See Doc. 142, p. 2). No evidence has been adduced to suggest
Skidmore was aware of the alleged lack of inhalers.
professional judgment with regard to Plaintiff’s hand injury. Accordingly, summary
judgment will be granted on this claim.
Count 7
An Eighth Amendment claim for failure to protect requires a plaintiff to
demonstrate that he faced a substantial risk of serious harm, and that the defendants
knew of and disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994);
Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). Where that risk involves inadequate
medical care, the standard is the same as applied in Count 6.
Here, Plaintiff’s claim is that he alerted Lashbrook and Baldwin to the assaults he
had sustained, poor conditions of confinement and inadequate medical care, but they did
nothing to address these situations. In Lashbrook’s case, Plaintiff states that he spoke
with her about his situation and the lack of medical care, wrote her multiple letters and
submitted grievances. (Doc. 135, pp. 17-18). Plaintiff also states that he wrote multiple
letters to Baldwin informing him that he feared for his life and asking for a transfer, as
well as submitting denied grievances to the ARB. (Id., pp. 17-18; Doc. 55-3, pp. 73-74).
Neither Lashbrook nor Baldwin dispute the substantial risk of serious harm, attacking
only the subjective element.
There remains a genuine issue of material fact as to whether Lashbrook and
Baldwin had the requisite state of mind to support a deliberate indifference claim.
Plaintiff testified regarding his in-person conversation with Lashbrook and the letters he
wrote. Lashbrook does not deny these accounts, merely stating that she does not recall
them. (Doc. 136-3). She instead points to her referral of the matter to Internal Affairs to
investigate the allegations of staff misconduct. Lashbrook is correct that if an official
reasonably responds to a risk, even if harm was not averted, deliberate indifference does
not exist. Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002). However, her
referral for a staff misconduct investigation does not dispose of the issue of whether his
medication and conditions-of-confinement issues were adequately addressed. A finder
of fact may determine that this was a reasonable response, or they may not.
The letters to Baldwin, however, are not sufficient to support a claim that he had
knowledge of Plaintiff’s specific situation. Baldwin’s declaration states that he had not
reviewed Plaintiff’s surviving letter, and that letters addressed to him are routinely
routed to the ARB for review. (Doc. 136-2, p. 2). Plaintiff provides no evidence that he
ever saw the letters addressed to him. Accordingly, this cannot be a basis to support the
deliberate indifference claim against Baldwin.
Finally, Lashbrook and Baldwin contend that they cannot be liable because they
never reviewed the grievances (beyond Lashbrook marking one as an emergency) due to
their routine practice of delegating such matters to other individuals. They are correct
that to recover damages under Section 1983, a plaintiff must establish that a defendant
was personally responsible for the deprivation of a constitutional right, and that there is
no respondeat superior or vicarious liability for a constitutional violation. Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th
Cir. 2001). However, this does not insulate supervisory employees entirely. A supervisor
may be liable if they “know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye for fear of what they might see. They must in other words act either
knowingly or with deliberate, reckless indifference.” Backes v. Vill. of Peoria Heights, Ill.,
662 F.3d 866, 870 (7th Cir. 2011).
The Illinois Administrative Code provision dealing with grievances puts
responsibility for making final determinations personally on the Chief Administrative
Officer of the facility. 20 IL Admin Code § 504.830(e). Unlike other provisions of that
regulation, no other individual may routinely perform these duties—only in periods of
that individual’s “temporary absence or in an emergency.” 20 IL Admin Code §
504.805(b).3 Despite this, Lashbrook states that she “routinely delegated the authority to
review items such as Grievance Officer’s Reports” and that in at least one instance here,
someone “designated to sign on [her] behalf” signed one of the grievances which Plaintiff
alleges would have put her on notice of Plaintiff’s issues. (Doc. 136-3, pp. 1-2).
Similarly, the portion the Code provision dealing with appeal of grievances
requires the Director to “review the findings and recommendations of the
[Administrative Review] Board and make a final determination of the grievance[.]” 20 IL
Admin Code § 504.850(e). Again, this is a function which may not be routinely delegated.
20 IL Admin Code § 504.805(b). Despite that, Baldwin’s affidavit specifically states that
he did not review the ARB responses in issue here, because “ARB members who issue
responses to grievances had authority to sign [his] name on the responses and initial next
to it.“ (Doc. 136-2, pp. 1-2).
3 Other courts have reached the opposite conclusion— that final review and approval of grievance decisions
is fully delegable. Saleh v. Pfister, No. 18 C 1812, 2021 WL 271233, at *2 (N.D. Ill. Jan. 27, 2021). With utmost
respect, this interpretation is incorrect, as it would render 20 IL Admin Code § 504.805(b) a nullity.
It is true that failure to follow state administrative codes and regulations is not
itself actionable as a constitutional violation. Thompson v. City of Chicago, 472 F.3d 444,
454 (7th Cir. 2006). That said, the Court disagrees that the Seventh Circuit's
determination in Thompson — that failure to abide by such regulations is “completely
immaterial as to the question of whether a violation of the federal constitution has been
established” — is applicable in this instance. Id. Lashbrook and Baldwin are by regulation
placed in positions of authority where they are required to perform certain duties. A
superior’s delegation of authority to complete a task associated with those duties does
not necessarily result in an effective renunciation of his responsibility to see that task is
performed appropriately. See Birch v. Jones, No. 02 CV 2094, 2004 WL 2125416, at *7
(N.D. Ill. Sept. 22, 2004) (although the warden “may delegate [the responsibility to review
inmate grievances] to others who sign his name for him, the buck still stops at the
warden.”); Goodman v. Carter, No. 00 C 0948, 2001 WL 755137, at *5 (N.D. IIL. Jul. 2, 2001)
(holding that a warden “may not play a ‘shell game,’ delegating responsibility without
disclosing to whom it is delegated, then denying personal responsibility when a prisoner
seeks to hold him accountable”); Drapes v. Hardy, No. 14 C 9850, 2019 WL 1425733, at *6
(N.D. IIL. Mar. 29, 2019) (same). The intentional decision to hand off those responsibilities
on a systematic basis bear directly on the question of whether they “turned a blind eye”
for purposes of deliberate indifference. Without additional evidence, there remains a
genuine issue of material fact.
Lashbrook also claims she cannot be liable because she was not the final
decisionmaker on Plaintiff's requested relief (transfer to another facility). The fact that
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Lashbrook could not unilaterally grant Plaintiff the transfer she requested does not
absolve her from the claim that she did nothing at all to address the conditions of
confinement or medical issues.
Finally, Lashbrook and Baldwin claim qualified immunity. Qualified immunity
protects government officials from damages liability “insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Estate of Clark v. Walker, 865 F.3d 544, 549–50 (7th Cir. 2017) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The entitlement to qualified immunity
depends on “(1) whether the facts, taken in the light most favorable to the plaintiff[ ],
show that the defendants violated a constitutional right; and (2) whether that
constitutional right was clearly established at the time of the alleged violation.” Gonzalez
v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009). “The latter inquiry is often dispositive
and may be addressed first.” Campbell v. Kallas, 936 F.3d 536, 545 (7th Cir. 2019).
The rights at issue here have been long established. While the facts of every case
are in some way unique, being housed in substandard conditions and being denied
medication for a diagnosed illness are in no way unusual or distinguishable from
countless other cases since Farmer. Accordingly, qualified immunity is unavailable in this
situation for Lashbrook or Baldwin.
Disposition
For the reasons stated above, the Court GRANTS in part and DENIES in part
Defendants’ Motions for Summary Judgment (Docs. 134 and 136). Count 6 is
DISMISSED as to Defendant Skidmore, and as to Plaintiff’s claims against Donaby,
Knop and Moldenhauer for failure to treat his injuries. Count 6 survives against Donaby,
Knop and Moldenhauer as to Plaintiff's denial of asthma medication. Count 7 survives.
The Clerk of Court is DIRECTED to terminate Skidmore as a party in the CM/ECF
system, and to enter judgment in his favor at the conclusion of the case.
The Court wishes to remind the Plaintiff that litigation is often viewed a series of
hurdles that the Plaintiff must clear to get to another hurdle. Summary Judgment is such
a hurdle, but it is a very low one for the Plaintiff to clear. Clearing the Summary Judgment
hurdle does not mean that the Plaintiff has won his case nor does it mean that he is
entitled to damages or other relief. As noted above, clearing the summary judgment
hurdle only requires the existence of a disputed fact material to the Plaintiff's claim. At
trial, he will need to prove that the disputed fact did, in fact, occur as the Plaintiff says it
occurred. Trial is the highest and most difficult of hurdles for any Plaintiff to clear.
IT IS SO ORDERED.
DATED: September 24, 2021
A). bie i
DavidW.Dugan
United States District Judge
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