Burton v. Wexford Healthcare Sources

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MARCUS BURTON, Y58071, )

)

Plaintiff, )

)

vs. )

)

WEXFORD HEALTHCARE SOURCES, )

CHRISTINE VINEYARD, )

DR. MEYERS, )

DR. BABICH, )

MARY KLINE, ) Case No. 24-cv-701-DWD

RENATA LOWERY, )

TAMI STAUFFER, )

PAM, )

JANE DOE 1, )

JOHN DOES 1-3, )

CENTRALIA CORR. CTR., )

IDOC, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Marcus Burton, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Dixon Correctional Center, brings this civil rights action

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

Centralia Correctional Center (Centralia). (Doc. 1). Plaintiff alleges that the defendants

have violated his rights by failing to adequately treat his numerous medical conditions,

by refusing him adequate conditions of confinement, and by failing to accommodate his

needs in accordance with the Americans with Disabilities Act (ADA, 42 U.S.C. §§ 12132,

12203).

Plaintiff’s Complaint (Doc. 1) is now before the Court for preliminary review

pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen

prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a)-(b).

Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon

which relief may be granted, or asks for money damages from a defendant who by law

is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b). At this juncture,

the factual allegations of the pro se complaint are to be liberally construed. Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

Plaintiff entered the IDOC in the Spring of 2023 at Stateville Correctional Center.

(Doc. 1 at 8). He made staff aware of his medical needs, and was then transferred to

Centralia, where he again informed medical staff of his current needs and conditions.

Staff also received copies of his records from Cook County Jail. Plaintiff alleges Centralia

did not provide him with a wheelchair, although he also states that his wheelchair came

with him from the Jail. He alleges that he spoke to a non-party nurse during the receiving

process who explained the sick call procedures, but he did not see an actual doctor until

July 28, 2023, when he saw Defendant Dr. Meyers. Plaintiff claims that Meyers limited

the visit to osteoarthritic pain in his hips but would not discuss “the plethora of other

medical issues [he] was currently dealing with.” (Doc. 1 at 8). Either before or right after

this visit, Plaintiff submitted a grievance seeking a consultation with a doctor and

complaining that the cells were not ADA compliant because they lacked appropriate

handrails, showers, toilets or sinks.

Plaintiff further explains that his grievance alerted officials to his avascular

necrosis in his hips, bilateral knee pain, severe excruciating right shoulder and neck pain,

headaches, and sleep apnea. (Doc. 1 at 9). He describes a variety of daily activities that

are hard, such as washing his feet, putting on socks, or tying his shoes. Plaintiff explains

that he is morbidly obese, so it is extremely difficult for him to ambulate without a

wheelchair. He alleges that as of February 24, 2024, the only things that have been done

are an x-ray of his hips and an order for glasses. He claims he still suffers in severe pain.

In association with this grievance, he faults Defendants Wexford, IDOC, Centralia, Dr.

Meyers, Christine Vineyard (the healthcare unit administrator), Dr. Babich, and Terri

Schulte (the ADA coordinator). (Doc. 1 at 9).

On August 30, 2023, Plaintiff was taken to an outside hospital for the x-ray of his

hips. He faults Defendant Pam, the writ coordinator, for failing to arrange proper

transportation. He claims Pam and Defendant Terri Schulte (the ADA coordinator) knew

he had an ADA assistant, but failed to organize a van that was ADA accessible and could

accommodate his wheelchair. Fearing that he would miss out on the appointment,

Plaintiff opted to crawl into the van. He was in leg irons and a belly chain, which three

corrections officers used to help load him into the van. Plaintiff described the experience

as painful, excruciating, and traumatic because he had to twist and contort. (Doc. 1 at

10). When it came time to return to the prison, John Doe 1 was unable for some reason

to assist in loading Plaintiff, which left John Doe 2 as the only assistant. Plaintiff alleges

this was worse because he had to struggle more, he overexerted himself, and the chains

were pulled with greater force. He claims that he severely hurt his right shoulder during

this ordeal, which was already damaged with a torn labrum. He claims with leg and

belly chains he cannot perform major life activities.

Plaintiff faults Defendants Pam, Vineyard, and Schulte for failing to accommodate

his needs because they scheduled the wrong type of van. He further alleges that their

actions increased the severity of his chronic pain when he was required to maneuver into

the van, and he claims that this caused him further injury under the ADA. He further

attributes these harms to the IDOC, and Centralia. (Doc. 1 at 11).

Plaintiff alleges that in August or September he was moved to the infirmary area

of the prison after it was determined that his wheelchair posed some sort of security

threat. He alleges that he needed to be transferred to another facility because in the

infirmary he could not use the gym or yard. He claims that per Defendant Dr. Babich,

Defendant Mary Kline denied him a transfer to another facility because she was not

authorized to make transfers directly from one infirmary to another. (Doc. 1 at 11). He

alleges that the policy for the infirmary at Centralia only allows recreational activity if

medically ordered. Otherwise, there is no recreational activity in the wards. Plaintiff

claims that he actually has been told by a doctor that he needs to lose significant weight,

and that his placement in the infirmary has prevented him from doing any sort of

recreational activity that would help with this goal. (Doc. 1 at 12). Plaintiff faults

Defendants IDOC, Kline, Jane Doe 1, Vineyard, Centralia, Wexford, and Dr. Babich for

the issues with his access to recreation. Specifically, he claims that they have

discriminated against him by excluding him from recreation, and by denying him access

to physical therapy, or any other means to lose weight. (Doc. 1 at 12).

On September 28, 2023, prior to an appointment with Dr. Babich, Plaintiff

overheard Defendant Tami Stauffer making negative remarks about his weight and

implying that he had a goal to gain weight before his release so he could collect social

security. He claims these allegations are untrue, and he is already eligible for social

security. (Doc. 1 at 13-14). He alleges that Stauffer’s conduct violated her oath as a

registered nurse, and his rights under HIPAA. He also alleges the conduct was

unbecoming and nefarious. Plaintiff faults Defendants Stauffer, Wexford, IDOC,

Vineyard, Renata Lowery, and Centralia for this issue.

Also in September of 2023, Plaintiff alleges that a wheel on his bariatric wheelchair

broke. (Doc. 1 at 13). He was given a regular wheelchair, so he made several requests to

Defendants Vineyard and Schulte for a new bariatric wheelchair. He filed at least one

grievance about the front wheel breaking off the regular wheelchair, which caused him

to fall to the ground. He also told Schulte and Vineyard several times that the wheelchair

could not support his weight. They told him a new bariatric wheelchair was on order,

but he claims this was not true. He alleges that a fellow inmate repaired his bariatric

wheelchair so that he could get around without falling. He faults Defendants Dr. Babich,

Dr. Meyers, Vineyard, Lowery, Schulte, and Wexford for these issues. (Doc. 1 at 14).

Despite being told that he could not transfer to another prison, Plaintiff was

informed on December 28, 2023, that he was being transferred to Dixon. (Doc. 1 at 14).

He believes this was a retaliatory transfer because it occurred just days after he had filed

a grievance about his broken wheelchair. He explains that he found this odd because

months prior Kline and Jane Doe 1 had indicated he could not be transferred for his

health. He alleges that Defendants IDOC, Centralia, Vineyard, Kline, and Lowery

violated his rights by this retaliatory transfer. (Doc. 1 at 15).

Plaintiff seeks monetary compensation and injunctive relief. (Doc. 1 at 16).

Based on the allegations in the Complaint, the Court will designate the following

claims:

Claim 1: Eighth Amendment deliberate indifference claim

concerning Plaintiff’s need for medical care;

Claim 2: Eighth Amendment deliberate indifference claim

concerning Plaintiff’s transportation to his x-ray

appointment;

Claim 3: Eighth Amendment deliberate indifference claim

concerning Plaintiff’s access to recreation;

Claim 4: Eighth Amendment deliberate indifference claim

concerning Plaintiff’s broken wheelchair;

Claim 5: ADA or Rehabilitation Act claim against IDOC concerning

Plaintiff’s ability to access recreation;

Claim 6: ADA or RA claim against IDOC concerning Plaintiff’s

broken wheelchair.

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 claim that is mentioned

in the Complaint but not addressed in this Order is considered dismissed without

prejudice as inadequately pled under Twombly. See Bell Atl. 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”).

Preliminary Dismissals

Plaintiff named Centralia as an entity and faulted them for many things described

in his complaint, but a physical prison as an entity of the state is not subject to § 1983

claims. See e.g., Thomas v. Illinois, 697 F.3d 612, 613-14 (7th Cir. 2012) (the state and state

agencies are not suable “persons” within the meaning of § 1983). Accordingly, Centralia

Correctional Center is dismissed with prejudice.

Additionally, Plaintiff named Wexford, but he does not make any mention of

Wexford in his factual allegations other than to list them in shotgun fashion as responsible

for his allegations alongside other individuals. Wexford is a private corporation that

cannot be held liable under § 1983 unless the constitutional violation was caused by an

unconstitutional policy or custom of the corporation itself. Shields v. Illinois Dept. of

Corrections, 746 F.3d 782, 789 (7th Cir. 2014); see also Monell v. Department of Social Services

of City of New York, 436 U.S. 658 (1978). Plaintiff’s complaint lacks any such allegations,

so the naming of Wexford is insufficient to state a claim and they will be dismissed.

Plaintiff alleges that Defendant Tami Stauffer violated his rights when she lied or

spread rumors about him to Dr. Babich before an appointment. He argued that this was

a violation of her code of conduct as a nurse, that it was a violation of his HIPAA rights,

and that it was generally unbecoming conduct. (Doc. 1 at 12-13). The Court finds this

allegation to be similar to one of verbal harassment, which is generally not actionable

under § 1983. See e.g., Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015) (finding that verbal

sexual harassment, accompanied by suggestive gestures, that created a risk both from the

harasser and fellow inmates, was sufficient to proceed beyond initial review); Brand v.

Oglesby, 2021 WL 4262447 at *1 (S.D. Ill. 2021) (finding a claim insufficient where plaintiff

alleged that a guard ran into his cell, verbally threatened him, and indicated he would

deploy pepper spray if plaintiff moved). Some threats may rise to the level of cruel and

unusual punishment. Dobbey v. Ill. Dept. of Corr., 574 F.3d 443, 445 (7th Cir. 2009). “The

test for what constitutes cruel and unusual punishment is an objective one. It is not the

actual fear of the victim, but what a “reasonable victim” would fear.” Id.

In this instance, the Court does not find that Stauffer’s alleged comments rise to

the level of actionable verbal harassment. To the extent that Plaintiff faults her for

violating a professional oath, or for violating his rights under HIPAA, neither theory can

succeed. Violations of codes, or even state laws, are not enough to make out a § 1983

claim. And there is no private cause of action under HIPAA. See e.g., Carpenter v. Phillips,

419 Fed. App’x 658, 659 (7th Cir. 2011) (HIPAA does not furnish a private right of action).

Plaintiff also attempts to name others in association with Stauffer’s actions, but any such

attempt is futile because there is no respondeat superior liability under § 1983. These

allegations about Stauffer’s verbal remarks are the only allegations directed at her in the

complaint, so Stauffer will be dismissed from this suit for failure to state a claim.

Plaintiff alleges that in December of 2023 he experienced a retaliatory transfer from

Centralia to Dixon, despite otherwise mentioning earlier in his pleading that he needed

a transfer to a place where he could exercise. He premises his retaliation claim on the

assertion that he filed a grievance about his broken wheelchair in early December of 2023,

and by late December he was suddenly transferred, despite previously being informed

by Defendants Jane Doe 1, Kline, Babich, and Vineyard that he could not be transferred

from one prison infirmary to another. He characterizes Dixon as the “top ADA facility

in Illinois.” (Doc. 1 at 14). A prison official may not retaliate against an inmate because

he filed grievances or a lawsuit under the First Amendment. Manuel v. Nalley, 966 F.3d

678, 680 (7th Cir. 2020). To show retaliation, an inmate must identify protected speech, a

deprivation that occurred to deter the speech, and that the speech or protected activity

was at least a motivating factor in the decision to take retaliatory action. Id. at 680-81.

Plaintiff’s allegations are insufficient to make out a retaliation claim because he

did not suffer a “deprivation” or adverse action. From his own allegations, he wanted a

transfer to allow him access to recreational offerings, and he got a transfer to the “top”

ADA facility. As such, it makes no sense to characterize the transfer as retaliatory, and

this claim is insufficient as pled. See, Holleman v. Zatecky, 951 F.3d 873, 881 (7th Cir. 2020)

(a transfer that objectively improves the prisoner’s condition would not deter a person of

ordinary firmness from engaging in protected activity, and it is not an adverse action).

The Court also notes that some statements in Plaintiff’s complaint perhaps could

be tied to actionable claims, but because Plaintiff did not elaborate on these issues, they

were not designated as claims here. For example, Plaintiff alleged in passing that his cell

did not have things like handrails, or an appropriate toilet or sink. There are

circumstances where this might amount to a claim, but Plaintiff gave so little detail, the

Court could not determine if he had a plausible claim in this respect against a discrete

defendant.

Plaintiff also frequently named administrators such as Christine Vineyard, the

healthcare administrator and Renata Lowery, but he often did little to describe their

personal involvement in issues described. A prison official cannot be held responsible

solely because they have supervisory duties, so many of Plaintiff’s apparent allegations

against these officials and others were insufficient and are not discussed in detail.

Finally, to the extent Plaintiff made mention of ongoing healthcare issues, he is

now at Dixon, and such claims should be pursued in a separate lawsuit. To this end,

Plaintiff’s request for injunctive relief is likely entirely moot.

Analysis

Claim 1

An Eighth Amendment claim arising from the denial of medical care consists of

an objective and a subjective component. Berry v. Peterman, 604 F.3d 435, 439–40 (7th Cir.

2010). A plaintiff must show that he suffered from a serious medical condition (i.e., an

objective standard) and also show that each defendant responded with deliberate

indifference (i.e., a subjective standard). Id. To satisfy the subjective component, a

prisoner must demonstrate that an official knew of and disregarded an excessive risk to

inmate health. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Neither medical

malpractice, nor mere disagreement with a doctor’s medical judgment will amount to

deliberate indifference. Id. Additionally, an inmate is not entitled to demand specific

care, and a medical professional may choose from a range of acceptable courses of care.

Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 965 (7th Cir. 2019).

Plaintiff alleges that upon admission to Centralia, he had a medical intake with a

nurse, but he did not immediately see a doctor. When he finally saw Dr. Meyers on July

28, 2023, he alleges Meyers only addressed his hip issues, and ignored a “plethora” of

other medical issues. He later describes some of his medical issues as necrosis in his hips,

knee pain, shoulder and neck pain, headaches due to vision problems and sleep apnea.

Although some of these things could in theory be considered serious health conditions,

Plaintiff’s allegations against Dr. Meyers, that he simply ignored a “plethora” of

conditions are insufficient to sustain a deliberate indifference claim against Meyers. This

single mention of Meyers is Plaintiff’s only mention of him in the complaint, so the

complaint is insufficient as to Meyers.

Plaintiff goes on to also fault Wexford, IDOC, Vineyard (the healthcare

administrator), Dr. Babich, and Terri Schulte (the ADA coordinator) for his unaddressed

medical issues, but he is not specific about their role in each condition he has identified.

Liability under Section 1983 is direct, not vicarious. Section 1983 requires personal

responsibility to establish personal liability. Only a defendant's direct, personal

involvement in a constitutional violation can result in liability. See, e.g., Perez v. Fenoglio,

792 F.3d 768, 781 (7th Cir. 2015) (stating that “[i]t is well established that ‘[f]or

constitutional violations under § 1983...a government official is only liable for his or her

own misconduct.”). “To recover damages against a prison official in a supervisory role,

a § 1983 plaintiff may not rely on a theory of respondeat superior and must allege that

through their own conduct that they violated the constitution.” Id.

Wexford is already eliminated for the reasons stated above. The IDOC is also not

subject directly to claims for constitutional violations, like an Eighth Amendment

violation, because it is an entity of the state, and is not considered a person for purposes

of § 1983. See, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989) (states and their

agencies are not persons subject to suit under § 1983).

This leaves Defendants Vineyard, Dr. Babich, and the Schulte. Though Plaintiff

claims that he alerted these individuals to his need for care via grievances, he does not

give any detail about their individual responses or roles in fielding his needs. The

medical records appended to his complaint demonstrate that Plaintiff saw Dr. Babich on

at least two occasions in September of 2023, at which time he made recommendations

that appear to address many of Plaintiff’s concerns. For example, he directed range of

motion exercises for Plaintiff’s shoulder. (Doc. 1 at 20). Notes from an M.D. visit in

October of 2023 show a recommendation for a sleep study. (Doc. 1 at 27). A response to

his July 2023 grievance also indicated that he was scheduled to see an optometrist for his

vision issues, and he was receiving pain medication. (Doc. 1 at 39). Given this evidence

on Plaintiff’s medical conditions, the Court does not find that he has plausibly stated a

claim for deliberate indifference against Defendants Vineyard, Babich, or Schulte.

Claim 2

Plaintiff alleges that on August 30, 2023, Defendants Pam and Schulte failed to

arrange adequate transportation to his x-ray appointment because they did not schedule

a van that would accommodate his wheelchair, and he suggests John Does 1-3 may have

hurt him when loading him without his wheelchair. (Doc. 1 at 9-10). Plaintiff also stated

in his complaint that he has “extreme difficulty to self ambulate” without his wheelchair,

but he does not state he cannot get around at all, and he admitted he opted to attend the

appointment despite no wheelchair accessible van. (Doc. 1 at 9). He adds that he hurt

himself as he struggled to get in the van. His most specific allegation against the John

Does is that John Doe 1 could not help load him on the return trip, so John Doe 2 faced a

greater struggle trying to yank on his restraints to load him.

As to John Does 1-3, Plaintiff’s allegations at most suggest negligence or an

accident, which is not enough to make out a deliberate indifference claim. See e.g.,

Mielosyk v. Baker, 2022 WL 4537890 at * 3 (S.D. Ill. Sept. 28, 2022) (finding that a wheelchair

bound plaintiff failed to substantiate a deliberate indifference claim against two transport

officers who forced him to crawl onto a bus). He does not plausibly suggest that any of

the John Does intended to cause him harm, nor does he even mention John Doe 3

individually. His allegations against the John Does are insufficient to state a claim.

As for Defendants Pam (the writ coordinator) and Schulte (the ADA coordinator),

Plaintiff alleges that they should have realized he needed a wheelchair accessible van

because Schulte had previously assigned him an ADA assistant, but this allegation does

not really attribute Schulte’s knowledge of Plaintiff’s condition to Pam, nor does it

suggest the two ever communicated about the issue. As with the John Does, Plaintiff’s

allegations against Pam and Schulte concerning the wheelchair accessible van might

suggest negligence, but they do not rise to the level of deliberate indifference. Plaintiff

does not suggest that either was present on the day of he transport, or that Schulte even

knew a transport was being arranged for him. The evidence presented is insufficient to

suggest a plausible deliberate indifference claim against these two. Claim 2 is dismissed

in full for failure to state a claim.

The Court also did not designate an ADA claim in association with this single

transportation incident because Plaintiff did not allege that the transportation issue

prevented him from accessing a medical service. Plaintiff’s allegations about the

wheelchair and struggling to board the transportation van for his medical appointment

are substantially like Wagoner v. Lemmon, 778 F.3d 586, 592-93 (7th Cir. 2015), wherein the

Seventh Circuit found that an inmate had not stated an ADA or RA claim based on the

fact that he was not provided with an accessible van and had to crawl on and off the van.

Additionally, the Court notes that Dr. Babich indicated on September 28, 2023, that

Plaintiff would need an ADA van for future medical furloughs. (Doc. 1 at 21). Given the

available information, the Court does not find that this one-time issue, which ultimately

did not prevent Plaintiff from accessing care, is sufficient for an ADA or RA claim.

Claim 3

Plaintiff alleges that in August or September of 2023 he was moved to the

infirmary after it was determined that his wheelchair posed a security risk. While in the

infirmary, he was not allowed to access yard or recreation, activities he contends were

necessary to his need to lose weight. He speaks of Defendants Kline, Babich and

Vineyard denying him a transfer to another prison where he could use the yard or gym.

He further alleges Defendants IDOC, Kline, Jane Doe 1, Vineyard, Wexford and Dr.

Babich violated his rights and discriminated against him for denying him access to

recreation.

The Constitution does not guarantee placement in a particular prison, so Plaintiff

cannot proceed against Kline, Babich or Vineyard for a denial of his transfer request. See

e.g., DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (states may move inmates to

any prison in the system, and there is no protected interest in a particular prison

classification or assignment).

Perhaps Plaintiff intends to suggest that these three knowingly forced him to go

without exercise, but even this contention is counterbalanced by the evidence he

submitted on his own behalf. Notably, Dr. Babich indicated that Plaintiff needed to be

evaluated for weight loss, and one of his plans after an appointment was to have Plaintiff

evaluated for a weight loss home exercise program. (Doc. 1 at 21). He submitted a

medical services referral form for the same reason that indicated Plaintiff should attend

off-site physical therapy to create a home exercise program because extra gym or yard

time was not an option. (Doc. 1 at 25). This evidence submitted by Plaintiff defeats any

plausible suggestion of deliberate indifference with regard to his exercise situation.

As to Vineyard, this is an instance where Plaintiff named her but did not clearly

describe her personal role. Here mere role as an administrator is not enough to proceed

against her. Finally, for Kline, there is no indication she knew Plaintiff was unable to

exercise or that she knew he had a medical need to exercise and intentionally disregarded

that need.

Despite finding that Plaintiff has not stated a deliberate indifference claim against

these individual defendants relative to his access to exercise or recreation, this topic will

also be discussed later in association with the ADA and RA.

Claim 4

In September of 2023, a wheel on Plaintiff’s bariatric wheelchair split open and

needed to be replaced. He was provided with a conventional wheelchair, but believed

that was inappropriate due to his weight, so he filed request slips to Vineyard and Schulte

about his need for a new bariatric wheelchair. On December 15, 2023, he resorted to filing

a grievance about the same issue. He alleges that Vineyard and Schulte told him they

had ordered a new bariatric wheelchair, but this was not true, and they did not care about

his situation. Attached medical records show that in the first week of December 2023,

Plaintiff fell out of the conventional wheelchair because the wheel broke under his

weight. He adds that a fellow inmate fixed his bariatric wheelchair to help him avoid

further falls. Plaintiff faults Schulte, Vineyard, Dr. Babich, Dr. Meyers, and Lowery.

Taking Plaintiff’s allegations at face value against Defendants Vineyard and

Schulte, it is possible that he has an Eighth Amendment claim concerning their alleged

failure to replace or repair his bariatric wheelchair from September to December of 2023,

at which time he fell. Plaintiff does not discuss injuries associated with the fall in the text

of his complaint, but the attached medical records show he sought care on two or three

occasions prior to his transfer to Dixon. Claim 4 may proceed against Schulte and

Vineyard.

By contrast, Plaintiff may not proceed on this claim against the other individually

named parties—Babich, Meyers, and Lowery—because he has not said anything to

personally link them to this issue.

Claims 5-6

Plaintiff’s allegations about his discriminatory exclusion from recreation, and his

allegations about his need for a replacement bariatric wheelchair may be sufficient to

proceed under the ADA or the RA. Plaintiff only expressly identified the ADA in his

complaint, but complaints filed by pro se litigants are read broadly, regardless of the legal

labels they affix. Where an inmate seeks monetary damages, the Seventh Circuit has

suggested replacing a prisoner's ADA claim with a parallel claim under the

Rehabilitation Act, 29 U.S.C. § 701, given the uncertainty about the availability of

damages under Title II and because the relief available is “coextensive.” Jaros v. Ill. Dep't

of Corr., 684 F.3d 667, 671–72 (7th Cir. 2012). Under the RA, damages are available against

a state that accepts federal assistance for prison operations, as all states do. Id. To state a

claim under the RA, a plaintiff must allege that (1) he is a qualified person (2) with a

disability and (3) the defendant denied him access to a program, service, or activity or

otherwise discriminated against him because of his disability. Wagoner v. Lemmon, 778

F.3d 586, 592 (7th Cir. 2015). The Seventh Circuit has concluded that to be wheelchair

bound is to be disabled for purposes of the ADA or RA. Norfleet v. Walker, 684 F.3d 688,

690 (7th Cir. 2012). “Refusing to make reasonable accommodations is tantamount to

denying access.” Jaros, 684 F.3d at 672 (citation omitted). A claim under either the ADA

or RA cannot be brought against individual employees but may be brought against the

department head of the facility in his or her official capacity. Jaros, 684 F.3d at 670 & n.2.

For purposes of initial review, Plaintiff has sufficiently alleged that he was a

qualified person, with a disability, who was denied access to a program or service in the

form of recreation and an adequate wheelchair. These issues have been contemplated in

other cases by the Seventh Circuit as potentially valid grounds for ADA or RA claims.

See e.g., Jaros, 684 F.3d at 672-73 (remanding for further proceedings on inmate’s ADA

and RA claims about accommodations needed to access meals, showers, or adequately

equipped cells); Love v. Westville Corr. Ctr., 103 F.3d 558 (7th Cir. 1996) (affirming

summary judgment in favor of an inmate who was denied access to certain programs and

services because he was housed in the infirmary and the programs or services were only

offered in other areas); Wagoner, 778 F.3d at 593 (inmate might have claimed wheelchair

itself was a service). For now, Plaintiff may proceed on Claims 5 and 6. This leaves the

issue of the proper defendant. Though Plaintiff associates many defendants with the

shortcomings identified in his complaint, the proper defendant is the prison or the head

of IDOC. Plaintiff has named the IDOC, so Claims 5 and 6 may proceed against IDOC,

but will be dismissed as to all other defendants.

Motion for Recruitment of Counsel

Plaintiff has moved for recruited counsel, and he has provided proof of some of

his own efforts to seek counsel. (Doc. 3). He alleges that he included an in forma pauperis

application, despite paying the filing fee in this case, but all that he included was a trust

fund certification about his current prison account balance. (Doc. 3 at 2, 5). There is no

right to the appointment of counsel in civil matters. Romanelli v. Suliene, 615 F.3d 847, 851

(7th Cir. 2010). When presented with a request to appoint counsel, the Court must

consider: “(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or

been effectively precluded from doing so; and if so, (2) given the difficulty of the case,

does the plaintiff appear competent to litigate it himself [.]” Pruitt v. Mote, 503 F.3d 647,

654 (7th Cir. 2007). Here, the Court cannot yet determine if Plaintiff is indigent, but even

assuming he is, it does not find that this case yet warrants the appointment of counsel.

Plaintiff’s complaint was sufficient to proceed beyond initial review, and the next steps

of the litigation will be closely guided by scheduling orders from the Court. At this time,

the case is not so complex that it exceeds Plaintiff’s abilities. This is particularly so where

Plaintiff indicates he has a college education. Accordingly, Plaintiff’s Motion for Counsel

(Doc. 3) is DENIED at this juncture.

Disposition

IT IS HEREBY ORDERED THAT Claim 4 of the Complaint (Doc. 1) survives

against Defendants Christine Vineyard and Terri Schulte and Claims 5-6 survive against

IDOC. By contrast, Claims 1-3 are dismissed in full for the reasons stated herein.

Additionally, any claim against Centralia Correctional Center is dismissed with prejudice

because the entity is not a person subject to suit under § 1983, and any claim against

Wexford is dismissed as insufficiently pled. Plaintiff has failed to state valid claims

against Defendants Dr. Meyers, Dr. Babich, Mary Kline, Renata Lowery, Tami Stauffer,

Pam, Jane Doe 1, and John Does 1-3. The Clerk of Court is DIRECTED to TERMINATE

Defendants IDOC, Centralia, Dr. Meyers, Dr. Babich, Mary Kline, Renata Lowery, Tami

Stauffer, Pam, Jane Doe 1, and John Does 1-3.

The Clerk of Court is DIRECTED to prepare for Defendants: Christine Vineyard,

Terri Schulte, and IDOC: (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 (Doc. 1), and this Memorandum and Order

to Defendants’ 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 Defendant, and the Court will require 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. Address information 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 Merits Review Order.

If judgment is rendered against Plaintiff, and the judgment includes the payment

of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs,

regardless of whether his application to proceed in forma pauperis was granted. See 28

U.S.C. § 1915(f)(2)(A).

Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk

of Court and each opposing party of any address changes; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later

than 14 days after a change of 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 failure to prosecute. FED. R. CIV. P. 41(b).

The Clerk of Court is DIRECTED to enter the standard HIPAA Order in this case

because it will involve the exchange of medical records.

Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is DENIED. Plaintiff’s

Motion for Service of Process at Government Expense (Doc. 2) is GRANTED by the

issuance of this Order.

Plaintiff paid a filing fee of $400, but the full civil filing fee is $405. Accordingly,

Plaintiff is ORDERED to pay the remaining $5.00 within 30 days.

IT IS SO ORDERED.

Dated: April 15, 2024

/s David W. Dugan

________________________

DAVID W. DUGAN

United States District Judge

NOTICE TO PLAINTIFF

The Court will take the necessary steps to notify the appropriate defendants of your

lawsuit and serve them with a copy of your complaint. After service has been achieved,

the defendants will enter their appearance and file an Answer to the complaint. It will

likely take at least 60 days from the date of this Order to receive the defendants’ Answers,

but it is entirely possible that it will take 90 days or more. When all of the defendants

have filed 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 the 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 his time, unless otherwise directed by the Court.

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. Initial screening is such a hurdle, but

it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening

only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some

relief. At trial, he will need to prove by a preponderance of evidence that the facts alleged

actually occurred and that those facts satisfy the legal requirements for recovery. Trial is

the highest and most difficult of hurdles for any Plaintiff to clear.