Serio v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RAYMOND SERIO, )

B70625, )

)

Plaintiff, )

)

vs. )

) Case No. 23-cv-2874-DWD

CHRISTINE BROWN, )

ILLINOIS DEPT. OF CORR., )

DAVID MITCHELL, )

BRANDON RIDGEWAY, )

DIANE SKORCH, )

BROCK MORGENSTERN, )

LT. McDONALD, )

SYDELLE FULK, )

WEXFORD HEALTH SOURCES, INC., )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Raymond Serio, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Pinckneyville Correctional Center (Pinckneyville), brings

this civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his

constitutional rights. (Doc. 1). Plaintiff alleges that the Defendants have violated his

rights by failing to provide his medications in a timely fashion when he transferred from

Menard, and by failing to house him in a cell that meets his mental health needs. Upon

initial review, Plaintiff was allowed to proceed on a handful of claims against named

defendants, while others were dismissed. (Doc. 9). Plaintiff has now filed an Amended

Complaint (Doc. 27).

Plaintiff’s Amended Complaint (Doc. 17) 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 and Amended Complaint

Upon review of the original pleading, the Court allowed Plaintiff to proceed on

the following claims:

Count 1: Eighth Amendment deliberate indifference claim against

Sydelle Fulk for failing to ensure that Plaintiff’s

medications were continued;

Count 2: Eighth Amendment cruel and unusual punishment claim

against Defendants Mitchell and McDonald for refusing to

house Plaintiff in a cell that met his needs;

Count 3: First Amendment retaliation claim against Defendants

Skorch and Ridgeway for allowing Plaintiff to be

disciplined over his requests for single-cell housing;

Count 4: Intentional Infliction of Emotional Distress against Defendants

Fulk, Mitchell, McDonald, Ridgeway and Skorch;

(Doc. 9).

In the Amended Complaint, Plaintiff reiterates many of his original allegations

verbatim. He has added a bit of detail to some of the allegations. For example, he alleges

that he met with Fulk immediately upon intake at Pinckneyville and relayed all of his

mental health needs, but she deliberately failed to write down any of the details of their

visit and failed to act upon the information that he relayed, despite appreciating the

seriousness of his situation through her training and experience. (Doc. 27 at 7).

In the Amended Complaint, Plaintiff adds details about Defendant Morgenstern,

a guard who was dismissed from his original pleading due to a lack of sufficient detail.

Specifically, Plaintiff alleges that he interacted with Morgenstern when he arrived at his

first housing unit at Pinckneyville. As he had with all other officials, he informed

Morgenstern that he was to be single-celled because of his mental health needs, and that

he needed a low gallery room because his knee injury prevented him from safely

traversing stairs. (Doc. 27 at 9). Morgenstern briefly left the wing and then returned and

directed Plaintiff to another housing unit where he assured Plaintiff things would be

“straightened out.” (Doc. 27 at 9). Plaintiff alleges that in reality Morgenstern issued him

a false disciplinary ticket for “refusing housing,” when in fact Plaintiff claims all he did

was state his needs rather than refuse a direct order. (Doc. 27 at 9, 12-13).

As to Defendant McDonald, Plaintiff emphasizes that he repeatedly told

McDonald he needed a low gallery placement due to his knee issues, but McDonald

refused and eventually told him he had to be on the upper gallery because that was the

area for housing refusals. (Doc. 27 at 10-11). Plaintiff argues that McDonald should not

have refused to honor his medical permit because staff are trained to follow medical

permits that are issued with the approval of medical personnel. He further contends that

IDOC’s policy requires permits to be honored from facility to facility. McDonald allowed

him to suffer the excruciating pain of traversing the stairs for 25 days. (Doc. 27 at 11).

In the original complaint, Plaintiff provided no individualized detail about

Christine Brown’s involvement in the events he describes. In the Amended Complaint,

Plaintiff alleges that Brown was personally aware through staff email and other forms of

communications that he and other prisoners were not receiving needed medication, but

despite this knowledge she ignored the risk of harm to Plaintiff, and he did not receive

his medication until January 11, 2023. (Doc. 27 at 11). At that point, he had already begun

to experience withdrawal that started on January 8, 2023.

Plaintiff further alleges that Defendants Brown and Mitchell promulgated rules,

regulations, policies, and procedures for the provision of medical and mental health

screening and care that contributed to the violations described in his complaint. (Doc. 27

at 15). He additionally faults Wexford for maintaining “written and/or unwritten rules,

regulations, policies and procedures that were major contributions to the violations and

injuries set forth in this complaint, Wexford also trains its staff not to believe prisoners

on medical issues.” (Doc. 27 at 15). In an enumerated claim, Plaintiff alleges that Wexford

maintained policies and procedures that resulted in the routine denial of sufficient

medical and mental health care. (Doc. 27 at 20).

Finally, Plaintiff revisits his accommodations related claim by alleging that his left

knee injury and his mental illness are both impairments that substantially limit his life

activities. (Doc. 27 at 15). In his view, a low gallery and single-cell housing placement

are the proper accommodations that should have been immediately honored at

Pinckneyville. (Doc. 27 at 15). In enumerated claims, he alleges that the ADA and RA

were violated or not immediately honored upon his transfer. He claims he cannot

traverse stairs safely, and if he is not single-celled his psychosis and paranoia may be

triggered. (Doc. 27 at 22-24). He admits he is currently being provided a single-cell and

is housed on the lowest gallery, but this was not done in a timely manner or without

punishment. (Doc. 27 at 23).

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

and/or reinstate the following additional claims:

Count 1: Eighth Amendment deliberate indifference claim against

Sydelle Fulk and Christine Brown for failing to ensure that

Plaintiff’s medications were continued;

Count 2: Eighth Amendment cruel and unusual punishment claim

against Defendants Mitchell and McDonald for refusing to

house Plaintiff in a cell that met his needs;

Count 3: First Amendment retaliation claim against Defendants

Skorch, Ridgeway, and Josh McDonald for allowing

Plaintiff to be disciplined over his requests for single-cell

housing;

Count 4: Intentional Infliction of Emotional Distress against all

Defendants;

Count 5: ADA/RA claim against IDOC for failing to accommodate

Plaintiff’s disabilities.

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 again attempts to state a policy or practice claim against Defendants

Christine Brown and David Mitchell for their roles in overseeing the prison. He has

named these two in their individual and official capacities. A policy or practice claim

against an employee of the state is viewed through the lens of an official capacity claim

against the employee for his or her role. See Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir.

2012) (“plaintiff sued the defendants in their official capacity, and so the lawsuit is against

a state agency”). The Eleventh Amendment generally bars private suits in federal court

against a state for monetary damages. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66

(1989); MCI Telecomm. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 336 (7th Cir. 2000). That

immunity extends to state agencies as well and, subject to the Ex Parte Young doctrine, to

state employees acting in their official capacities. MCI Telecomm., 222 F.3d at 336–37

(discussing Ex Parte Young, 209 U.S. 123 (1908)). Under the exception outlined in Ex Parte

Young, the Eleventh Amendment does not bar a lawsuit against an individual state

official in their official capacity for an ongoing violation of federal law if the remedy

sought is prospective injunctive or declaratory relief. MCI Telecomm., 222 F.3d at 345 (“[A]

private party may sue individual state officials in federal court to obtain prospective relief

for an ongoing violation of federal law.”). Here, however, Plaintiff admits that he had

just about six days without this medication, he is now housed in a low gallery cell, and

he is in a single cell. Given that all of these items appear to have been addressed at this

point, there is no further injunctive relief that is available, so his policy or practice claim

against Brown and Mitchell in their official capacities is rendered moot and will be

dismissed.

Plaintiff also attempts to now incorporate a policy or practice claim against

Wexford, the corporate medical contractor for the IDOC. To establish liability against a

corporate medical contractor in a prison, an inmate must demonstrate that the

constitutional violation alleged 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). Thus,

under Monell, for Plaintiff to recover from Wexford, he must show that the alleged

constitutional violation was caused by: (1) an express policy that caused a constitutional

deprivation when enforced; (2) a widespread practice that was so permanent and well-

settled that it constituted a custom or practice; or (3) a person with final policymaking

authority. Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021). In other

words, a plaintiff must show that “systematic and gross deficiencies in …[IDOC’s]

medical care system,” caused his injury, and also that “a policymaker or official knew

about these deficiencies and failed to correct them.” Daniel v. Cook Cty., 833 F.3d 728, 735

(7th Cir. 2016). Alternatively, a plaintiff must show that “the unlawful practice was so

pervasive that acquiescence on the part of policymakers was apparent and amounted to

a policy decision.” Dixon v. Cty. Of Cook, 819 F.3d 343, 348 (7th Cir. 2016).

As for Wexford, Plaintiff’s allegations are overly generic. He alleges there must be

some policy or practice that has prevented him from securing adequate mental health

and medical care, but he does not describe what that policy is, or when it impacted him.

Although he discusses his chronic knee injury in the complaint, he does not seem to

describe instances when he was actually denied care or treatment. He alleges he was

without his medications for six days but does not otherwise allege he has been denied

access to mental health services or medication. Given that his only concrete allegation is

that he missed his medications for six days, this appears more like a one-time issue that

a deficiency caused by a standing policy or practice. Plaintiff’s allegations are too generic

to proceed against Wexford, so they will be dismissed without prejudice for failure to

state a claim.

Analysis

Claim 1

Plaintiff has already been allowed to proceed against Sydelle Fulk, and his

amended complaint does not meaningfully change the scope of the claim that has been

allowed to proceed. Plaintiff now alleges that Defendant Christine Brown should also be

held liable for deliberate indifference to his situation because she was personally aware

of medication distribution issues related to Plaintiff but did nothing to avert his six days

of missed doses. Although these allegations are still quite ambiguous, Plaintiff has

attributed the issue he experienced to Brown’s own inaction, which may be enough to

prevail under the Eighth Amendment deliberate indifference framework. Accordingly,

he may now also proceed against Brown in her individual capacity on Claim 1.

Claim 3

Plaintiff has already been allowed to proceed against Defendants Ridgeway and

Skorch for disciplining him based on his assertion of his medical and mental health needs.

He alleges now that Defendant Morgenstern participated in this chain of events because

when he voiced his mental and medical health needs for cell placement to Morgenstern,

Morgenstern responded by issuing him a false disciplinary ticket for refusing housing,

and then sent him to an area of the prison that could not meet his needs and required his

placement on a higher gallery.

Prison officials may not retaliate against inmates for filing grievances, exercising

First Amendment rights, or otherwise complaining about their conditions of

confinement. See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). For now, the Court

will read the complaint broadly in Plaintiff’s favor and it will accept that the issuance of

a disciplinary ticket as a response to Plaintiff’s voiced medical and mental health concerns

may be considered an act of retaliation. Plaintiff may add Defendant Morgenstern to

Claim 3.

Claim 4

Plaintiff was already allowed to proceed against Jane Doe 2, David Mitchell,

McDonald, Ridgeway and Skorch for his state law claim. He may now also proceed

against Morgenstern and Brown on this claim.

Claim 5

Plaintiff again alleges that his rights under the Americans with Disabilities (ADA)

and Rehabilitation Act (RA) have been violated by the defendants, and the IDOCs,

actions. (Doc. 27 at 15, 22-24). To state a prima facie case of discrimination under both

the ADA and the RA, a plaintiff must plead sufficient facts to show: (1) that he suffers

from a disability as defined in the statutes, (2) that he is qualified to participate in the

program in question, and (3) that he was either excluded from participating in or denied

the benefit of that program based on his disability. Jackson v. City of Chicago, 414 F.3d 806,

810 (7th Cir. 2005). The Rehabilitation Act further requires that a plaintiff show that the

program in which he was involved received federal financial assistance. Id. at 810 n.2; see

also 29 U.S.C. § 794(a). The ADA applies to state prisons, as all such institutions receive

federal funds. Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206 (1998).

Under Title II of the ADA regarding discrimination in public accommodations,

“qualified individual with a disability” means “an individual with a disability who, with

or without...the provision of auxiliary aids and services, meets the essential eligibility

requirements for the receipt of services or the participation in programs or activities

provided by a public entity.” 42 U.S.C. § 12131(2). A “disability” includes “a physical or

mental impairment that substantially limits one or more major life activities of such

individual.” 42 U.S.C. § 12102(1)(A).

Plaintiff now makes it clear that he is bringing this claim about his mental health

needs, as well as his left knee injury. Beginning with the mental health situation, Plaintiff

does not state anywhere in the amended complaint that he was ever housed in anything

other than single-cell status at Pinckneyville. This is the cell status he claims he needs.

As such, he cannot maintain an ADA or RA claim related to his mental health needs,

because they have not been infringed by his housing placement.

As to the left knee issue, he now lives on a low gallery, but he alleges he was forced

to live on a higher gallery for approximately 25 days. He claims that transiting the stairs

caused him excruciating pain, but significantly, he does not allege that he was actually

prevented from accessing any services or amenities by this impediment. Without saying

he was denied access to anything, Plaintiff cannot make out an ADA or RA claim, so

Claim 5 is again dismissed for failure to state a claim.

Disposition

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

survives against Defendants Sydelle Fulk and Christine Brown; Claim 2 survives against

Defendants Mitchell and McDonald; Claim 3 survives against Ridgeway, Skorch, and

Brock Morgenstern; and Claim 4 survives against Sydelle Fulk, Mitchell, McDonald,

Ridgeway, Skorch, Brown and Morgenstern. By contrast, all claims against all other

defendants are dismissed without prejudice for failure to state a claim, and the Clerk of

Court is DIRECTED to TERMINATE Defendants IDOC, and Wexford Health Sources,

Inc..

The Clerk of Court is DIRECTED to prepare for Defendants: Christine Brown and

Brock Morgenstern: (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 Amended Complaint (Doc. 27), 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 transfer or other 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 Defendants have filed multiple motions for extension of time to answer and

otherwise comply with the scheduling order (Doc. 17) in light of Plaintiff's amended

complaint. (Docs. 28, 29, 30,31). AIl Motions are DENIED as MOOT by the issuance of

this Order. The existing Defendants do NOT need to file additional answers because the

allegations against them have not changed the Court's previously designated claims, to

which they already filed answers. (Docs. 16, 26, 32).

Defendant Sydelle Fulk has also moved to withdraw her affirmative defense of

failure to exhaust administrative remedies. The Motion (Doc. 33) is GRANTED,

however, merits discovery will remain stayed until the other defendants have a chance

to pursue the issue of exhaustion.

The Defendants shall now have an additional 45 days to file any motions on the

exhaustion of administrative remedies. Any late appearing party (Christine Brown and

Brock Morgenstern) should follow the schedule for late appearing parties contained in

document 17.

IT IS SO ORDERED.

Dated: July 26, 2024 L. “

DAVID W. DUGAN

United States District Judge