McKinley v. Gomez

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BERNARD MCKINLEY,

Plaintiff,

v. No. 22 CV 5459

DAVID GOMEZ, ROB JEFFREYS, Judge Manish S. Shah

LUSECITA GALINDO, MARLENE HENZE,

and WEXFORD HEALTH SOURCES, INC.,

Defendants.

ORDER

Defendant Wexford Health Sources’s motion to dismiss, [70], is granted.

Plaintiff’s claim against defendant Wexford is time-barred. Defendant Rob Jeffreys’s

motion to dismiss, [77], is granted. Plaintiff fails to state a claim for individual

liability under 42 U.S.C. § 1983 against defendant Jeffreys. The parties shall file a

joint status report with a proposal for completing any remaining discovery (including

expert discovery) by September 10, 2024.

STATEMENT

Plaintiff Bernard McKinley1 contracted COVID-19 while in the custody of the

Illinois Department of Corrections at the Stateville Correctional Center. [62] ¶¶ 9–

12.2 On January 4, 2022, IDOC medical staff tested McKinley and his cellmate for

COVID-19. Id. ¶ 16. Staff did not disclose the results of the tests to McKinley or his

cellmate. Id. Four days later, staff tested McKinley again for COVID-19. Id. ¶ 17.

They informed McKinley that his cellmate had tested positive on January 4th. Id.

The same day, McKinley filed an emergency grievance with Stateville’s warden,

David Gomez, stating that Gomez, IDOC Director Rob Jeffreys, and Stateville health

care staff had created an unsafe prison environment by forcing inmates to share social

spaces with those who tested positive for COVID-19. Id. ¶ 18. Warden Gomez

1 Plaintiff’s first name is also spelled “Benard” in the amended complaint and briefs. I use

the spelling of plaintiff’s name as he filed it in his original complaint, [1].

2 Bracketed numbers refer to entries on the district court docket. Referenced page numbers

are taken from the CM/ECF header placed at the top of filings. The facts are taken from

plaintiff’s amended complaint, [62].

responded to McKinley’s emergency grievance two weeks later stating that the

grievance did not constitute an emergency. Id. ¶ 26.

McKinley developed symptoms of COVID-19. [62] ¶ 21. On January 18, Dr.

Marlene Henze (site medical director and Wexford employee) told McKinley that he

had tested positive on January 8 and that he was being taken off quarantine status.

Id. ¶ 23. This was the first time McKinley learned that he had tested positive for

COVID-19. Id. McKinley, who has asthma, continues to experience “Long COVID”

symptoms including anxiety, severe headaches, difficulty breathing, high blood

pressure, and chest pains. Id. ¶ 35.

McKinley brings suit under 42 U.S.C. § 1983 against Warden Gomez, Dr.

Henze, and Lusecita Galindo (health care unit administrator and IDOC employee)

alleging that they knew and disregarded the substantial risk of serious harm posed

by COVID-19 to McKinley in violation of the Eighth Amendment. [62] ¶ 42. He brings

a claim against Wexford Health Sources alleging that Wexford failed to adequately

train and supervise its staff and permitted the widespread practice of forcing COVID-

positive inmates to share spaces with those who tested negative. Id. ¶¶ 45–50. He

also brings a § 1983 claim against Jeffreys and Gomez in their individual capacities

for failure to isolate COVID-positive inmates. Id. ¶¶ 51–55. Defendants Wexford and

Jeffreys move to dismiss the amended complaint. [70], [77]. For the reasons discussed

below, the motions are granted.

I. Legal Standard

A complaint must contain “a short and plain statement” showing that the

plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662,

677–78 (2009). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege

facts that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at

555 (citation omitted). At this stage, I accept all factual allegations in the complaint

as true and draw all reasonable inferences in the plaintiff’s favor, disregarding legal

conclusions or “[t]hreadbare recitals” supported by only “conclusory statements.”

Iqbal, 556 U.S. at 678.

II. Wexford’s Motion to Dismiss

Wexford argues that McKinley’s amended complaint impermissibly relies on

group pleading. [71] at 6–7. While McKinley sometimes refers to defendants

collectively, see [62] ¶¶ 12, 15, 27, 34, he adequately alleges Wexford’s role in the

conduct. See Bank of America, N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013) (“Each

defendant is entitled to know what he or she did that is asserted to be wrongful.”). He

states that Wexford, as IDOC’s private contractor to provide medical services, helped

develop and implement IDOC’s COVID-19 response. [62] ¶¶ 8, 30. He alleges that he

contracted COVID as a result of the policies and practices of IDOC, Stateville, and

Wexford; specifically, “defendants’ policy of forcing people who contracted COVID-19

to remain in the same cells with people who had not yet contracted the virus.” Id.

¶ 27. McKinley’s complaint is sufficient to put Wexford on notice of its role in the

alleged wrongful conduct.

Wexford asserts (and McKinley does not dispute) that the limitations period

for the claim against Wexford began to run on January 18, 2022—the date McKinley

learned he had tested positive for COVID-19 after being forced to share a cell with

his COVID-positive cellmate. [71] at 14–15; [62] ¶ 23; see Milchtein v. Milwaukee

Cnty., 42 F.4th 814, 822 (7th Cir. 2022) (“Accrual of a § 1983 claim—a matter

governed by federal law—occurs ‘when the plaintiff knows or should know that his or

her constitutional rights have been violated.’”) (citation omitted). State law provides

the applicable statute of limitations and tolling rules for § 1983 actions. Devbrow v.

Kalu, 705 F.3d 765, 767 (7th Cir. 2013). In Illinois, the statute of limitations for

personal-injury actions is two years. See 735 ILCS 5/13-202. So, McKinley should

have filed his claim against Wexford by January 18, 2024. He did not name Wexford

as a defendant until April 4, 2024. [62]. But he says that the amended complaint

naming Wexford relates back to his original complaint, which was timely filed on

October 5, 2022. [1]. He admits that he did not explicitly name Wexford as a

defendant in his original complaint, but he named Dr. Henze (a Wexford employee),

and his oversight is attributable to his initial pro se status.3 [80] at 4–6.

Under Fed. R. Civ. P. 15(c)(1)(C), an amendment to a pleading that names a

new party relates back to the date of the original pleading if “(1) the amendment

asserts a claim or defense arising out of the same conduct, transaction, or occurrence

as the original complaint; (2) ‘within the period provided by Rule 4(m),’ the party

added by amendment ‘received such notice of the action that it will not be prejudiced

in defending on the merits’; and (3) the added party ‘knew or should have known that

the action would have been brought against it, but for a mistake concerning the proper

party’s identity.’” Herrera v. Cleveland, 8 F.4th 493, 496 (7th Cir. 2021) (emphasis in

original). The focus of Rule 15(c)(1)(C)(ii) is on “what the prospective defendant knew

or should have known” rather than the plaintiff’s knowledge. Krupski v. Costa

Crociere S.p.A., 560 U.S. 538, 548 (2010) (emphasis in original). “When the original

complaint and the plaintiff’s conduct compel the conclusion that the failure to name

the prospective defendant in the original complaint was the result of a fully informed

decision as opposed to a mistake concerning the proper defendant’s identity, the

requirements of Rule 15(c)(1)(C)(ii) are not met.” Id. at 552.

There is no mistake here. McKinley’s original complaint made no reference to

Wexford (or even a general reference to Dr. Henze’s employer). See Donald v. Cook

Cnty. Sheriff’s Dep’t, 95 F.3d 548, 559 (7th Cir. 1996) (noting that courts may construe

pro se complaints as “having named defendants who are only mentioned in the body

of the complaint”). This also wasn’t the type of legal mistake where McKinley named

a state agency entitled to sovereign immunity rather than individual defendants who

3 McKinley filed his amended complaint represented by counsel. See [62].

are the appropriate parties in a § 1983 suit. Id. at 557. McKinley says that Wexford

should have been on notice that he was challenging not only Dr. Henze’s actions as

an employee but Wexford’s policies and practices as her employer. [80] at 5. But

private corporations sued under § 1983 are not liable under the doctrine of respondeat

superior. See Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789–96 (7th Cir. 2014). And

there was nothing in the original complaint to suggest a theory of Monell liability

against Wexford based on its unconstitutional policy or practice. Wexford asserts that

it would be prejudiced by defending this claim on the merits given the date of the

original filing in October 2022 and the progress of discovery. [82] at 13–14; see Joseph

v. Elan Motorsports Techs. Racing Corp., 638 F.3d 555, 560 (7th Cir. 2011) (“[T]he

longer the delay in amending the complaint was, the likelier the new defendant is to

have been placed at a disadvantage in the litigation.”). I agree. Because there was no

mistake that satisfies the requirements of Rule 15(c)(1)(C)(ii), and Wexford would be

prejudiced by joining the case at this stage, relation back is inapplicable and the claim

against Wexford is dismissed as untimely.

Equitable tolling “pauses the running of… a statute of limitations when a

litigant has pursued his rights diligently but some extraordinary circumstance

prevents him from bringing a timely action.” Xanthopoulos v. United States Dep’t of

Lab., 991 F.3d 823, 831 (7th Cir. 2021) (internal quotation marks omitted). The

doctrine may apply in cases where a pro se plaintiff cannot identify unknown

defendants and is reasonably diligent in filing a motion to seek out that information.

See Bryant v. City of Chicago, 746 F.3d 239, 243 (7th Cir. 2014). Wexford points out

that if McKinley did not know Wexford’s identity when he filed his original complaint,

he at least knew about Wexford’s identity as Dr. Henze’s employer several weeks

before the limitations period ended. See [82] at 10. Based on initial discovery

exchanges, McKinley (still pro se at the time) requested leave to file an amended

complaint on December 6, 2023 to add agents of the Illinois Department of Public

Health and Office of Health Services as additional defendants. [49]. McKinley did not

seek to amend to add Wexford as a defendant then. This was not an exceptional

circumstance where McKinley did not know Wexford’s identity and asked for

additional time from the court to seek it out. Equitable tolling does not save

McKinley’s untimely claim.

III. Jeffreys’s Motion to Dismiss

State officials may be sued in their individual capacity under § 1983 for actions

“taken under color of state law.” Gonzalez v. McHenry Cnty., Illinois, 40 F.4th 824,

828 (7th Cir. 2022) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). To establish personal

liability, McKinley must show that Jeffreys “caused the constitutional deprivation at

issue” or “acquiesced in some demonstrable way in the alleged constitutional

violation.” Id. (quoting Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003)).

Jeffreys cannot be held liable under § 1983 unless he had some “personal involvement

in the alleged constitutional deprivation.” Williams v. Shah, 927 F.3d 476, 482 (7th

Cir. 2019). For a supervisor to be liable for the conduct of others, he must both “(1)

know about the conduct and (2) facilitate, approve, condone, or turn a blind eye

toward it.” Gonzalez, 40 F.4th at 828 (quoting Kemp v. Fulton County, 27 F.4th 491,

498 (7th Cir. 2022)) (internal quotation marks omitted). “Under the second prong, a

supervisor is liable if he acted purposefully, knowingly, or recklessly, but not

negligently.” Id. (emphasis in original).

McKinley alleges that Jeffreys knowingly permitted the implementation of an

unconstitutional policy—forcing COVID-positive and negative inmates to share

spaces—which caused McKinley to contract COVID-19. [81] at 4. He further alleges

that Jeffreys should have known that this policy conflicted with professional medical

standards and placed people like McKinley at a serious risk of harm. Id. He says that

Jeffreys knew or should have known about his asthma because of his emergency

grievance. Id.

Jeffreys contends that he never “personally interacted” with McKinley nor

“personally inflicted harm on him.” [78] at 4. McKinley need not establish that

Jeffreys directly participated in the conduct that caused harm. See Rasho v. Elyea,

856 F.3d 469, 478 (7th Cir. 2017). But McKinley must at minimum allege that

Jeffreys knew that medical staff were forcing inmates like McKinley to share cells

with COVID-positive inmates and that McKinley was at risk of this harm. The only

allegation that supports supervisory knowledge is McKinley’s emergency grievance.

An inmate’s correspondence to a prison official can establish that the official had the

requisite knowledge of a constitutional deprivation and provide a basis for personal

liability. See Perez v. Fenoglio, 792 F.3d 768, 781–82 (7th Cir. 2015). But McKinley

states that the emergency grievance was addressed to and resolved by Warden

Gomez, not Director Jeffreys. [62] ¶¶ 18, 26; see Ill. Admin. Code tit. 20, § 504.840

(emergency grievance procedure). This establishes Gomez’s knowledge, but not

Jeffreys’s.

McKinley cites to Childress v. Walker, 787 F.3d 433 (7th Cir. 2015), to support

the proposition that a prison administrator may be personally liable for a policy that

violated a prisoner’s Eighth Amendment rights despite never participating in the

actual conduct. [81] at 4–5. In Childress, the plaintiff alleged that the prison

administrator knew about the conditions of his mandatory release that included a

ban on computer-related material but nevertheless permitted a practice that placed

a disk into prisoners’ possessions and jeopardized his MSR. Childress, 787 F.3d at

440. The court found the claim plausible because plaintiff alleged (1) that prison

administrators knew of the regular practice of placing computer disks with inmates’

property and (2) knew that the practice “put at least some recently released prisoners

in jeopardy of losing their freedom, but nevertheless did not alter, change, or

otherwise intervene to prevent the harm.”Id. There, the warden had admitted

knowing of two other inmates who had been re-incarcerated because of the prison’s

practice. Id. Here, the plausible allegation of knowledge is missing. Without any

record of notice (the grievance addressed by Warden Gomez is not enough), there was

no practice or conduct affecting McKinley that Jeffreys was made aware of and

nevertheless “turned a blind eye to.” Because McKinley fails to allege that Jeffreys

was personally involved in the policy or practice that caused him to contract COVID-

19, the claim is dismissed.

Defendant Wexford Health Sources’s motion to dismiss, [70], is granted.

Defendant Rob Jeffreys’s motion to dismiss, [77], is granted. Both dismissals are with

prejudice.4

ENTER:

Date: August 26, 2024 bil SAL

Manish 8. Shah

U.S. District Judge

4 Dismissal with prejudice of the claim against Wexford is appropriate because no

amendment would cure untimeliness. See Runnion v. Girl Scouts of Greater Chi. & Nw. Ind.,

786 F.3d 510, 519-20 (7th Cir. 2015). Dismissal of prejudice of the claim against Jeffreys is

appropriate because even if McKinley could amend to include an allegation of Jeffreys’s

knowledge, he would otherwise be entitled to qualified immunity. See Johnson v. Rogers, 944

F.3d 966, 968 (7th Cir. 2019) (claims barred by the doctrine of qualified immunity must be

dismissed with prejudice). McKinley’s complaint fails to allege a violation of a constitutional

right clearly established at the time. See Tousis v. Billiot, 84 F.4th 692, 697 (7th Cir. 2028).

McKinley says it is clearly established that prison officials may not “be deliberately

indifferent to the exposure of inmates to a serious, communicable disease.” Helling v.

Mckinney, 509 U.S. 25, 33 (1993). But the right cannot be defined at “too high a level of

generality.” City of Tahlequah, Oklahoma v. Bond, 595 U.S. 9, 12 (2021). McKinley does not

identify any precedent that establishes “beyond debate” that a prison administrator’s failure

to isolate inmates during the COVID-19 pandemic constitutes a violation of the Eighth

Amendment. See Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011); see also Ball v. Plasse, No.

221CV00062J MSMJD, 2023 WL 1766000, at *4 (S.D. Ind. Feb. 3, 2023), appeal dismissed,

No. 23-1432, 2023 WL 5674590 (7th Cir. Apr. 6, 2023) (collecting cases and observing that

“many courts have granted qualified immunity to jail and prison administrators given the

evolving nature of the virus and the related recommendations for keeping incarcerated

individuals safe”).