Moore v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SHUNG MOORE,

#B12832,

Plaintiff, Case No. 21-cv-01454-SPM

v.

WEXFORD HEALTH SOURCES, INC.,

DR. SIDDIQUI,

REVA ENGELAGE,

GAIL WALLS,

ANGELA CRANE,

LT. QUALLS,

JOHN DOE #1,

JOHN DOE #2,

JOHN DOE #3,

JOHN DOE #4,

C/O WHITE,

C/O SCANLAN,

BOBBY HUGHES,

ALEX JONES, and

JACQUELINE LASHBROOK,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Shung Moore, an inmate of the Illinois Department of Corrections, filed the instant

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

occurred while he was housed at Menard Correctional Center (“Menard”). This case is now before

the Court for preliminary review of the Complaint under 28 U.S.C. § 1915A. 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).

COMPLAINT

Moore alleges the following: On December 20, 2019, an officer came to his cell and told

him to pack his property because he was being moved. (Doc. 1, p. 6). At the time, Moore was

housed in general population, West Cell House, cell 1-10. Moore was taken to “the cage,” a holding

cell at the front of the gallery. While in the holding cell, Moore heard an officer tell the officer

who had placed him in the holding cell, “Lt. Qualls said you’re good, you can walk him on over.”

Before Moore was escorted from West Cell House, he requested to be given a bedroll. The officer

escorting him told him, “they’ll give you one over there.” Moore was not allowed to take a bedroll

with him. (Id.).

Moore was taken from general population and “placed in temporary confinement status in

cell 246 of the institution’s North 2 Disciplinary Segregation Unit.” (Doc. 1, p. 22). Prior to his

cell transfer, Moore did not break any prison rules and had not been charged with a violation.

Upon his arrival at segregation, Moore was stripped searched by Correctional Officer Roth

in an empty shower stall that was extremely filthy. (Doc. 1, p. 23). There were discarded soiled

underwear and socks in the corner and what appeared to be moldy food and phlegm on the walls

and floor of the shower stall. Moore requested something to stand on while he was searched

because he has a chronic skin condition that makes him susceptible to bacterial infections. His

request was denied, and Roth directed Moore to stand on the dirty floor with bare feet while the

strip search was conducted. (Id.).

Moore was then taken to cell 246 by an unknown officer, which was also dirty. (Doc. 1, p.

24). The cell walls were covered in dirt and grime and on certain areas “there were strands of hair

stuck to the wall.” The walls were stained with human bodily fluid and what appeared to be

seaman. The toilet bowl was speckled with a blackish brown substance that smelled of feces. There

were stains on the toilet seat and sides of the toilet bowl. There was discarded trash in the cell,

including empty milk cartons, used tissue, and Styrofoam containers with spoiled food. (Id.). The

sink was also filthy, and the hot water button was broken. (Id. at p. 25). The cell did not have

pillow, and the mattress was ripped and dirty.

Moore remained in cell 246 for “three days.” (Doc. 1, p. 25, 26). During this time, he was

not given hygiene items, a blanket, sheet, or pillow. (Id. at p. 25). When he asked staff members

for these items he was told, “we can’t find any,” or “we don’t have any.” (Id.). On December 24,

2019, Moore was moved to cell 633, and he was not given his personal property until December

30, 2019. (Id. at p. 28, 29).

After his cell transfer, Moore submitted a request slip requesting emergency medical

treatment. He was sent to nurse sick call and examined by Nurse Engelage, who diagnosed Moore

with shingles. Engelage consulted with Dr. Siddiqui who instructed that Moore was to be

quarantined and “deadlocked” in cell 633 for five days. (Id. at p. 29). Engelage gave Moore a

prescription of Acyclovir to be taken four times a day for five days. Moore was sick from

December 24 through December 29, 2019. (Id. at p. 30). He was in terrible pain and nauseous all

day and night. Medical staff did not come and check on him during this time, and he was left to

treat himself.

DISCUSSION

Based on the allegations in the Complaint, the Court designates the following counts:

Count 1: Fourteenth Amendment claim against Qualls, John Doe #1,

John Doe #2, and Lashbrook for placing Moore in

segregation without due process of law.

Count 2: Eighth Amendment claim against White, Scanlan, Hughes,

Jones, and Lashbrook for housing Moore in unconstitutional

conditions in cell 246.

Count 3: Eight Amendment claim against John Doe #3 and John Doe

#4 for withholding Moore’s personal property from

December 20, 2019 through December 30, 2019.

Count 4: Eighth Amendment claim for deliberate indifference to a

serious medical need against Engelage, Siddiqui, Wexford,

Walls, and Crane.

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 Twombly1 pleading standard.2

Count 1

“The Due Process Clause of the Fourteenth Amendment applies only to deprivations of

life, liberty, and property.” Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017). When an inmate

raises a procedural due process claim, the Court undertakes a two-part analysis. Id. The Court first

evaluates whether the prisoner was deprived of a protected liberty interest, and then second,

evaluates whether the process he was afforded was constitutionally deficient. Id. (citing Hess v.

Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 673 (7th Cir. 2016)).

Generally, prisoners “do not have a liberty interest in avoiding brief periods of segregation,

whether administrative or disciplinary.” Smith v. Akpore, 689 F. App’x 458, 460 (7th Cir. 2017).

See also Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013). A protected liberty interest is

triggered only when the segregation “imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Lisle v. Welborn, 933 F.3d 705, 721 (citing Sandin

v. Conner, 515 U.S. 472, 484 (1995)). See also Miller v. Dobier, 634 F.3d 412, 414–15 (7th Cir.

2011). In order to determine if a sentence of segregation amounts to an atypical and significant

hardship, the Court looks “to both the duration of the segregation and the conditions endured.”

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (7th Cir. 2007).

2 This includes any claims regarding Moore’s strip search. These allegations are not asserted against any Defendant

who listed in the case caption as a party. See Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005).

Lisle, 933 F.3d at 721 (citing Marion v. Columbia Corr. Inst., 559 F. 3d 693, 697 (7th Cir. 2009)).

Here, Moore has not sufficiently pled that his time in segregation rose to the level of an

“atypical and significant hardship” that would implicate a liberty interest requiring procedural due

process. Moore alleges that he was wrongly placed in punitive segregation, where he endured filthy

and unsanitary conditions for three days in cell 246, and once transferred from cell 246, he does

not provide information on how long he remained in segregation or what conditions he

experienced. Because brief amounts of time in segregation, even in dirty conditions, do not impose

an atypical and significant hardship, Moore’s three days in cell 246 do not impose an atypical and

significant hardship that requires due process. See Obriecht v. Raemisch, 565 F. App’x 535, 540

(7th Cir. 2014) (finding that 78 days in alleged deplorable conditions was not a “atypical and

significant hardship” as compared to prison life generally”); Marion, 559 F. 3d at 698 (noting that

6 months in segregation, without additional facts, did not trigger due process rights); McCoy v.

Atherton, 818 F. App’x 538, 541-42 (7th Cir. 2020) (holding that 3 months in segregation in a

dirty cell near physically and mentally ill inmates did not impose an atypical and significant

hardship). Accordingly, Count 1 is dismissed without prejudice.

Count 2

The deprivation of an inmate’s basic human needs such as food, medical care, sanitation,

or physical safety may violate the Eighth Amendment, and a prison official may be held liable for

deliberate indifference to the risk of harm to the inmate from those conditions. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994); Rhodes v. Chapman, 452 U.S. 337, 346 (1981); James v.

Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992). To establish and Eighth Amendment claim,

a plaintiff must allege “[e]xtreme deprivations” that are “objectively, sufficiently serious.” Boyd

v. Davis, 234 F. 3d 1272, at *2 (Table) (7th Cir. 2000) (quoting Henderson v. Sheahan, 196 F. 3d

839, 845 (7th Cir. 1999)). Furthermore, a defendant will only be found liable if he or she “knows

of and disregards an excessive risk to inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Boyce v. Moore, 314 F. 3d 884, 888 (7th Cir. 2002) (quoting

Farmer, 511 U.S. at 837)).

Moore alleges that for three days he was kept in a filthy cell without a sheet, hygiene items,

pillow, or blanket. The cell was so cold that he was unable to sleep. These conditions, when taken

collectively, are sufficient to rise to the level of cruel and unusual punishment. See Gillis v.

Litscher, 468 F. 3d 488, 493 (7th Cir. 2006); Johnson v. Lappin, 264 F. App’x 520 (7th Cir. 2008).

However, Moore has failed to sufficiently plead that any of the Defendants were

subjectively aware of the conditions in his cell and acted with deliberate indifference. He asserts

liability against Defendants Hughes because he is “responsible” for operational activities in

segregation and the officers who kept telling Moore that there were no bedrolls or hygiene packs

available. (Doc. 1, p. 27). Hughes cannot be held liable solely based on the acts of his subordinates,

and Moore has not alleged that Hughes’s own conduct violated the Constitution or that Hughes

had personal knowledge of the cell conditions. Stockton v. Milwaukee Cty., 44 F. 4th 605, 619 (7th

Cir. 2022) (“supervisory liability cannot attach under § 1983 absent a showing the officer is

personally responsible for a deprivation of a constitutional right”). Count 2 is dismissed as to

Hughes.

As for Jones and Lashbrook, Moore believes that they were aware of the condition of cell

246 based on reports or grievances filed by other inmates at Menard. (Doc. 1, p. 28). Again, these

allegations are not sufficient to plead deliberate indifference. Moore must allege that Jones and

Lashbrook have actual knowledge of and disregarded a risk to his health and safety. See Burks v.

Raemisch, 555 F.3d 592, 593-94 (7th Cir. 2009) (“The assumption...that anyone who knew or

should have known of his...condition, and everyone higher up the bureaucratic chain, must be

liable...is a bad one). Therefore, Count 2 is dismissed as to Jones and Lashbrook.

Count 2 is also dismissed against White and Scanlan. Moore states that while he was

housed in cell 246, he asked White and Scanlan for a bedroll or hygiene supplies, and they

informed him they could not find any “every time.” (Doc. 1, p. 26). These allegations are not

enough to state a claim for deliberate indifference to a serious risk of harm. While White and

Scanlan were aware Moore did not have toiletries for three days, Moore does not assert that White

and Scanlan were aware of the full extent of the conditions in his cell that posed a substantial risk

of serious harm. See Lee v. Washington, No. 97 C 4710, 1999 WL 759609, at *6 (N.D. Ill. Aug.

31, 1999) (denial of personal hygiene items such as soap, toothpaste and deodorant for two weeks

does not rise to the level of a constitutional violation); Martin v. Lane, 766 F. Supp. 641, 648 (N.D.

Ill. 1991) (deprivation of hygienic supplies and laundry services for between three and eighteen

days did not constitute a violation of a prisoner's Eighth Amendment rights); Harris v. Fleming,

839 F.2d 1232, 1235 (7th Cir. 1988) (allegations that a prisoner was kept in a filthy, roach-infested

cell without toilet paper for five days and without soap, toothpaste, or a toothbrush for ten days

did not “reach unconstitutional proportions”). Thus, as pled, Moore has failed to state a claim for

deliberate indifference against White and Scanlan, and Count 2 is dismissed as to them.

Count 3

Moore claims that John Doe #3 and John Doe #4, who are property room officers, “would

not give [him] his property from the segregation property room” until December 30, 2019. (Doc.

1, p. 30). As a result, he was without any personal hygiene items, other than toilet tissue, and other

personal property for ten days. (Id.).

Even if John Doe #3 and John Doe #4 withheld Moore’s personal property, which included

hygiene items, for ten days, Moore does not assert that they were aware of or had any involvement

in the conditions of his confinement while he was housed in segregation. Simply being deprived

of personal property for ten days does not amount to cruel and unusual punishment. Accordingly,

Count 3 is dismissed.

Count 4

The Eighth Amendment has been held to prohibit deliberate indifference to a prisoner’s

serious medical need. To state a claim for deliberate indifference to a serious medical need, an

inmate must show (1) that he suffered from an objectively serious medical condition; and (2) that

the defendant was deliberately indifferent to a risk of serious harm from that condition. Petties v.

Carter, 836 F.3d 722, 727 (7th Cir. 2016).

Moore alleges that after being treated for his shingles by Nurse Engelage and provided

medication on December 24, 2019, he was quarantined in his cell and went without further

treatment or observation. (Doc. 1, p. 30). For six days, he was in terrible pain, too weak to move,

and unable to request help from prison officials. He asserts that he was denied treatment due to a

policy implemented by Dr. Siddiqui that requires any inmate housed in segregation, who contracts

an infectious disease such as shingles, to be quarantined and treated in his cell. The inmate is not

admitted to the infirmary ward of the health care unit for treatment and observation.

Moore alleges that Wexford, who employs Dr. Siddiqui, was aware of this policy and has

failed to implement provisions regarding the treatment of inmates confined in segregation

diagnosed with infectious diseases.

Walls, as the health care unit administrator, was also aware that inmates confined in

segregation who contracted infectious diseases, were required to be quarantined and treated in their

cells and being denied treatment in the health care unit.

Moore further asserts that Crane, as the nursing supervisor, is responsible for instructing

Engelage and other nurses to quarantine and treat segregation prisoners who contract an infectious

disease in their cells and not in the health care unit. (Doc. 1, p. 33).

Moore has adequately pled that he suffered from a diagnosed serious medical need,

shingles. He has failed, however, to assert that any Defendant knew that policy of treating inmates

with infectious diseases at their cells, rather than in the health care unit, was harming inmates,

including himself. There are no allegations that Defendants knew that he was in need of further

medical attention and then deliberately refused to care for him. As such, Count 4 is dismissed

without prejudice.

LEAVE TO AMEND

As Counts 1, 2, 3, and 4 are dismissed, the Complaint does not survive preliminary review,

and it shall be dismissed without prejudice for failure to state a claim for relief. If he would like to

pursue his claims any further, Moore will have an opportunity to do so by filing a First Amended

Complaint. A successful complaint generally alleges “the who, what, when, where, and how....”

See DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). Therefore, Moore should clearly

identify who violated his constitutional rights by naming them in the case caption and stating how

each defendant caused or participated in a constitutional deprivation in the body of the First

Amended Complaint.

DISPOSITION

For the reasons stated above, the Complaint, including Counts 1, 2, 3, and 4, is

DISMISSED without prejudice for failure to state a claim upon which relief may be granted.

Moore is GRANTED leave to file a “First Amended Complaint” on or before December

8, 2022. Should Moore fail to file a First Amended Complaint within the allotted time or consistent

with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for

failure to state a claim, failure to comply with a court order, and/or for failure to prosecute his

claims. FED. R. CIV. P. 41(B); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.

Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).

It is strongly recommended that Moore use the civil rights complaint form designed for use

in this District. He should label the form, “First Amended Complaint,” and he should use the case

number for this action (No. 22-cv-01454-SPM). To enable Moore to comply with this Order, the

CLERK is DIRECTED to mail him a blank civil rights complaint form.

An amended complaint generally supersedes and replaces the original complaint, rendering

the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.

1 (7th Cir. 2004). The First Amended Complaint must stand on its own without reference to any

previous pleading. Moore must re-file any exhibits he wishes the Court to consider. The First

Amended Complaint is also subject to review pursuant to 28 U.S.C. § 1915A.

Finally, Moore 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: November 10, 2022

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge

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