Petrakis v. Thompson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MATTHEW PETRAKIS, )

)

Plaintiff, )

)

vs. ) Case No. 3:21-CV-459-MAB

)

SCOTT THOMPSON, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is presently before the Court on the Motion to Dismiss or, in the

Alternative, to Sever filed by IDOC Defendants Christine Brown, Dallas Kincaid, Kim

Larson, and Scott Thompson (Doc. 56) and to follow-up on the Show Cause Order

previously issued to Plaintiff (Doc. 7).

BACKGROUND

Plaintiff Matthew J. Petrakis, an inmate of the Illinois Department of Corrections

(“IDOC”) filed the instant lawsuit pursuant to 42 U.S.C. § 1983 for alleged deprivations

of his constitutional rights at Danville Correctional Center and Pinckneyville

Correctional Center. Plaintiff alleges that he has severe hearing loss and suffers from

vertigo as a side effect of the hearing loss (Doc. 1; Doc. 7). He claims that while he was

at Pinckneyville, he requested ADA accommodations, including a bottom bunk permit

and a lower gallery designation, but his requests were denied (Doc. 1; Doc. 7). His

requests for medical treatment for his vertigo were also denied (Doc. 1; Doc. 7). Plaintiff

alleges that the vertigo caused him to fall in September 2019 and again in October 2019,

and he suffered a knee injury (Doc. 1; Doc. 7). At some point he was transferred to

Danville,1 and he alleges that a number of officials and medical providers at Danville

denied him medical care for his knee injury and some did so in retaliation for filing

grievances and lawsuits (Doc. 1; Doc. 7). The Court conducted a threshold review of the

complaint pursuant to 28 U.S.C. § 1915A and Plaintiff was permitted to proceed on the

following counts:

Count 1: Americans with Disabilities Act and/or Rehabilitation Act claim

against IDOC Director Rob Jeffreys for failing to accommodate Plaintiff’s

hearing loss and vertigo;

Count 2: Eighth Amendment claim against IDOC Director Jeffreys and

Pinckneyville officials and medical providers: Dr. Percy Myers, Health

Care Unit Administrator Christine Brown, and Warden Scott Thompson

for deliberate indifference to Plaintiff’s serious medical needs regarding

his hearing loss and vertigo and against Wexford Health Sources, Inc. in

that medical care was denied and/or delayed as a result of Wexford’s

policies and practices.

Count 3: Eighth Amendment claim against IDOC Director Rob Jeffreys

and Danville officials and medical providers: Warden Kim Larson, Dr.

Jonathan Ek, Nurse Practitioner Justin Dupree, Nurse Dana Ritchie, Nurse

Brandi Carl, Nurse Sara Glenn, Nurse Colleen Shultz, Nurse Melissa

Welch, Nurse Scott Parish, and correctional officer Dallas Kincaid for

exhibiting deliberate indifference to Plaintiff’s knee injury and severe pain

and against Wexford Health Sources, Inc. for deliberate indifference in

that medical care was denied and/or delayed as a result of Wexford’s

policies and practices.

Count 4: First Amendment retaliation claim against Danville officials and

medical providers: Larson, Dr. Ek, Dupree, Ritchie, Carl, Glen, Shultz,

Welch, Parish, and Kincaid for refusing to treat Plaintiff’s knee injury and

sever pain in retaliation for Plaintiff exercising his First Amendment right

1 Plaintiff filed a Notice of Change of Address filed in 19-cv-579 indicating that he had been transferred to

Danville. SDIL Case No. 19-cv-579-SPM, Doc. 63.

to seek redress from the court and for filing grievances.

In the threshold Order, the Court noted that Counts 1 and 2 were identical to

Plaintiff’s claims in a previously filed suit pending in this district, 19-cv-579, and

ordered Plaintiff to show cause as to why this case should not be stayed pending the

resolution of the claims in 19-cv-579 (Doc. 7). Plaintiff filed a response as ordered (Doc.

22). The IDOC Defendants then filed a motion to dismiss the claims in this case, or in

the alternative, to stay Counts 1 and 2 pending the outcome of 19-cv-579 and to sever

Counts 3 and 4 into a separate lawsuit and transfer it to the Central District of Illinois

(Doc. 56). Plaintiff filed a response in opposition to Defendants’ motion (Doc. 57).

DISCUSSION

A. Severance of Counts 3 and 4

The undersigned agrees with Defendants that Counts 3 and 4 should be severed.

This issue should have been spotted and addressed in the Court’s threshold Order, but

given the number of defendants initially named and the number of counts advanced,

the Court simply overlooked it.

Counts 1 and 2 concern how officials and medical providers at Pinckneyville

treated Plaintiff’s hearing issues and related vertigo. Counts 3 and 4 concern how

officials and medical providers at Danville treated Plaintiff’s knee injury. The Seventh

Circuit has instructed that claims against unrelated defendants arising from conduct at

different prisons do not belong in the same lawsuit. Owens v. Evans, 878 F.3d 559, 561,

566 (7th Cir. 2017). See also Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011)

(“[U]nrelated claims against different defendants belong in separate lawsuits, not only

‘to prevent the sort of morass’ produced by multi-claim, multi-defendants suits . . . but

also to ensure that prisoners pay all fees required under the Prison Litigation Reform

Act[.]” (quoting George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007))). The fact that

Plaintiff’s knee injury occurred at Pinckneyville shortly before his transfer to Danville

has no bearing on the treatment Danville officials offered him for his knee. His claims

against officials at Pinckneyville and Danville are not so intertwined that they should be

allowed to proceed in the same suit. See Fed. R. Civ. P. 20(a)(2) (allowing joinder of

defendants if “any right to relief is asserted against them jointly, severally, or in the

alternative with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences” and “any question of law or fact common to all defendants

will arise in the action.”).

Consequently, Counts 3 and 4 will be severed into a separate action. And

because these claims arose at Danville Correctional Center, the severed case will be

transferred to the Central District of Illinois after it is opened and assigned a new case

number. See 28 U.S.C. § 93(b) (stating that Vermilion County, Illinois, where Danville

Correctional Center is located, is part of the Central District of Illinois).

B. Count 1 – ADA/Rehab Act claim

In the instant case, Plaintiff’s ADA/Rehab Act claim is based on Pinckneyville

officials’ “fail[ure] to accommodate [his] hearing loss and vertigo” (Doc. 7, pp. 5, 7–8).

Specifically, Plaintiff alleged in the complaint that he made prison officials aware that

because of his hearing loss, he had vertigo, which caused dizziness and difficulties with

balance (Doc. 1, p. 8). He asked to have a bottom bunk permit and a lower gallery

permit to accommodate the vertigo-related issues, but his request were refused (Doc. 1,

p. 8–9).

In case 19-cv-579, Plaintiff is likewise proceeding on an ADA/Rehab Act claim

based on Pinckneyville officials’ “fail[ure] to accommodate [his] hearing loss.” SDIL

Case No. 19-cv-579-SPM, Doc. 88, p. 4; see also id. at Doc. 23, p. 1. It may appear at first

blush that this ADA claim is slightly different because Judge Stephen McGlynn did not

mention vertigo in delineating Plaintiff’s claims in the threshold Order. See id. at Doc.

Doc. 88, p. 4. However, it is clear from the substance of the threshold Order as well as

Plaintiff’s complaint that the ADA claim does in fact encompass Plaintiff’s vertigo. Id. at

Doc. 88, p. 5; Doc. 89, pp. 5–14; see also id. at Doc. 23, p. 1; Doc. 25, pp. 5–10. Specifically,

Judge McGlynn wrote that Plaintiff “alleges that he suffers from a disability—severe

hearing loss—and that the prison did not accommodate that disability by failing to

ensure that he was alerted for meals, dayroom activities, showers, gym, yard, and other

activities, as well as not providing him with a low bunk permit and lower gallery

designation.” Id. at Doc. 88, p. 5. The low bunk and lower gallery permits were

accommodations Plaintiff felt were necessary because of his vertigo. See id. at Doc. 89,

pp. 5–14. The fact that they were mentioned in the context of Plaintiff’s ADA claim

demonstrates that Judge McGlynn considers Plaintiff’s vertigo to be part and parcel of

his hearing loss and encompassed within his ADA claim.

“The district court has broad discretion to dismiss a complaint for reasons of

wise judicial administration . . . whenever it is duplicative of a parallel action already

pending in another federal court[,]” meaning the “claims, parties, and available relief do

not significantly differ between the two actions.” McReynolds v. Merrill Lynch & Co., 694

F.3d 873, 889 (7th Cir. 2012) (citations and internal quotation marks omitted). Here, it is

clear that Plaintiff’s ADA/Rehab Act claim in the instant case is subsumed by his claim

in 19-cv-579, which addresses both the failure to provide accommodations for his

hearing loss and his related vertigo. Consequently, there is no need to allow Plaintiff to

continue pursuing his ADA/Rehab Act claim in this case. McReynolds, 694 F.3d at 889

(“[A]llowing a separate suit seeking the same remedy would be redundant.”). Count 1

in the instant case is therefore dismissed as duplicative of Plaintiff’s ADA claim already

pending in 19-cv-579.

C. Count 2 – Deliberate Indifference

In case 19-cv-579, Plaintiff was permitted to proceed on an Eighth Amendment

claim against Dr. Percy Myers, Christine Brown, and Warden Scott Thompson for

exhibiting deliberate indifference to his hearing loss and corresponding vertigo (Count

2). SDIL Case No. 19-cv-579-SPM, Doc. 88; see also Docs. 7, 23, 35. Specifically, Plaintiff

alleged that Dr. Myers, Christine Brown, and Warden Thompson failed to provide or

ensure he received an examination, adequate treatment, a referral to a specialist, and

necessary accommodations for his hearing loss and vertigo. Id. at Doc. 88, pp. 2–3, 5;

Doc. 89, pp. 5–14.

In the instant case, Plaintiff once again asserted an Eighth Amendment deliberate

indifference claim against Dr. Percy Myers, Health Care Unit Administrator Christine

Brown, and Warden Scott Thompson, as well as IDOC Director Rob Jeffreys and

Wexford Health Sources, Inc. (Doc. 7). With respect to Dr. Myers, Christine Brown, and

Warden Thompson, Plaintiff alleges they failed to provide or ensure he received an

examination, adequate treatment, a referral to a specialist, and necessary

accommodations for his vertigo (Doc. 1, pp. 8–10).

Plaintiff acknowledges that his allegations in Count 2 of the instant case

pertaining to Dr. Myers, Christine Brown, and Warden Thompson are already part of

his deliberate indifference claim in case 19-cv-579 (Doc. 22). But Plaintiff argues that he

was also trying to assert additional allegations/claims in the instant case that he was

not permitted to add in 19-cv-579 (Doc. 22). Specifically, Plaintiff argues that he

attempted to amend his complaint in 19-cv-579 to add allegations that because his

vertigo went untreated and he was not issued necessary permits, he fell in September

2019 and October 2019 and injured his knee, however, Judge Stephen McGlynn refused

to allow him to do so (Doc. 22, p. 2). See also SDIL Case No. 19-cv-579, Docs. 88, 89.

It appears that Plaintiff misunderstood Judge McGlynn’s order. When Plaintiff

moved to amend his complaint in December 2019, he wanted to add factual allegations

regarding an audiogram at Beltone in March 2019, an assessment of his ADA needs by a

specialist from the Chicago Hearing Society in July 2019, Pinckneyville’s subsequent

failure to act on the recommendations that were made at those two appointments, his

two falls in the fall of 2019, his knee injury, and the treatment Dr. Myers provided for

his knee. SDIL Case No. 19-cv-579, Docs. 66, 89; see also Doc. 88. Plaintiff also wanted to

add allegations that Dr. Myers, Christine Brown, Warden Thompson, and Rob Jeffreys

were retaliating against him. Id. at Doc. 66; Doc. 89, pp. 16–19. Judge McGlynn

acknowledged all of the new factual allegations and permitted Plaintiff to amend his

complaint to include those allegations to the extent they supplemented his existing ADA

and deliberate indifference claims regarding his hearing loss and vertigo in Counts 1

and 2. See id. at Doc. 88, pp. 3, 4, 5. But Judge McGlynn did not allow Plaintiff to amend

his complaint to assert additional Counts against the Pinckneyville Defendants for

retaliation and deliberate indifference to his knee injury. Id. at Doc. 88, pp. 4, 6–7.

Plaintiff was told that if he wanted to pursue these new Counts, he would have to do so

in a separate lawsuit. Id. at Doc. 88, p. 6.

About a year after Judge McGlynn entered his Order in 19-cv-579, Plaintiff filed

his complaint in the instant lawsuit (see Doc. 1 (filed on May 6, 2021)). The undersigned

has thoroughly reviewed Plaintiff’s complaint. There are absolutely no assertions that

any of Thompson, Myers, or Brown’s conduct was retaliatory, or any allegations from

which retaliation could be inferred (see Doc. 1, pp. 8–10). And there are no allegations

regarding Dr. Myers treatment of Plaintiff’s knee injury while he remained at

Pinckneyville (see id.). The Court thus concludes that Plaintiff made no effort to bring

the retaliation claim or deliberate indifference claim regarding his knee injury that

Judge McGlynn previously rejected. Plaintiff’s deliberate indifference claim in Count 2

as it relates to Dr. Myers, Christine Brown, and Warden Thompson is therefore

duplicative of the deliberate indifference claim already proceeding in case 19-cv-579.

Accordingly, Count 2 will be dismissed as to Dr. Myers, Christine Brown, and Warden

Thompson.

That leaves only Plaintiff’s claim for deliberate indifference against IDOC

Director Rob Jeffreys and Wexford as set forth in Count 2. This matter will proceed on

that claim. Defendants Jeffreys and Wexford shall have until September 30, 2022, to file

an appropriate responsive pleading to the Complaint. Defendants need only respond to

the issues as stated in the threshold Order as it pertains to the claim remaining in this

case against Jeffreys and Wexford (see Doc. 7). Furthermore, if Defendants believe that a

stay is still appropriate for Plaintiff’s remaining claims pending the outcome of case 19-

cv-579, they can file a renewed motion to stay.

CONCLUSION

The Show Cause Order entered on June 16, 2021 (Doc. 7) is DISCHARGED.

Defendants’ Motion to Dismiss, or in the Alternative, to Sever (Doc. 56) is GRANTED

IN PART AND DENIED IN PART.

Count 1 is DISMISSED with prejudice as duplicative of a claim already

pending in case 19-cv-579.

Count 2 is DISMISSED with prejudice as to Defendants Percy Myers, Christine

Brown, and Scott Thompson as duplicative of a claim already pending in case 19-cv-579.

It is ORDERED that Counts 3 and 4 are SEVERED into a new case. In the new

case, the Clerk of Court is DIRECTED to file the following documents:

• the Complaint (Doc. 1);

• the motion for leave to proceed in forma pauperis (Doc. 2) and the Order

granting it (Doc. 6);

• the Order dated June 16, 2021, containing the § 1915A threshold review of the

complaint (Doc. 7);

• the instant Order.

Once the newly severed action is opened, pursuant to 28 U.S.C. §§ 1391(b) and

1404(a) and on the Court's own motion, the Clerk of Court is DIRECTED to transfer the

action to the United States District Court for the Central District of Illinois for such

further proceedings as that court may deem appropriate. 28 U.S.C. § 93(b).

The Clerk of Court is DIRECTED to terminate Scott Thompson, Kim Larson,

Percy Myers, Jonathan Eck, Christine Brown, Justin Dupree, Dana Ritchie, Brandi Carl,

Sara Glenn, Collen Shults, Melissa Welch, Scott Parish, and Dallas Kincaid as

Defendants in this case.

It is FURTHER ORDERED that the only claim remaining in this action is

Plaintiff’s claim for deliberate indifference against Defendants Rob Jeffreys and

Wexford Health Sources as set forth in Count 2. Defendants Jeffreys and Wexford shall

have until September 30, 2022, to file an appropriate responsive pleading to the

Complaint.

IT IS SO ORDERED.

DATED: September 2, 2022

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge