Morris v. Barwick

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BARRY MORRIS, #N42509, )

)

Plaintiff, )

)

vs. ) Case No. 24-cv-01649-SMY

)

JOHN BARWICK, )

DR. PERCY MYERS, and )

ILLINOIS DEPARTMENT OF )

CORRECTIONS, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Barry Morris filed a Complaint pursuant to 42 U.S.C. § 1983, the Americans with

Disabilities Act (ADA), and the Rehabilitation Act (Rehab Act) on August 5, 2024.1 He claims

he was denied necessary medical care and reasonable accommodations for chronic back pain at

Pinckneyville Correctional Center, and seeks money damages and injunctive relief.

The Complaint (Doc. 11) is subject to review under 28 U.S.C. § 1915A, which requires

dismissal of any portion that is legally frivolous or malicious, fails to state a claim for relief, or

seeks monetary relief from an immune defendant. 28 U.S.C. § 1915A. The Court will also

consider Plaintiff’s motion for a temporary restraining order and/or preliminary injunction filed on

August 7, 2024. (Doc. 12).

1 This is 1 of 3 cases opened upon receipt of a motion for temporary restraining order without a complaint

from the plaintiff. See also Morris v. Borwick, et al., Case No. 24-cv-01470-MAB (S.D. Ill. filed June 10, 2024);

Morris v. Barwick, et al., Case No. 24-cv-01839-SMY (S.D. Ill. filed Aug. 5, 2024). Plaintiff notified the Court of

his intention to proceed with his claims in this case on July 12, 2024 (Doc. 8), and he filed a Complaint (Doc. 11) on

August 5, 2024. Meanwhile, he voluntarily dismissed Case No. 24-01470-MAB on July 15, 2024, and the Court

administratively closed Case No. 24-cv-01839-SMY as duplicative of the others on August 6, 2024. The Complaint

at Doc. 11 is now subject to screening under 28 U.S.C. § 1915A.

The Complaint

Plaintiff makes the following allegations in the Complaint (Doc. 11, pp. 7-16): Plaintiff is

an inmate in the custody of the Illinois Department of Corrections (IDOC) and is currently

incarcerated at Pinckneyville Correctional Center (Pinckneyville). He suffers from chronic back

and leg pain resulting from spinal disc herniation and lumbar spinal stenosis that was diagnosed in

2014. Id. at 7. He is also diagnosed with an enlarged prostate. Id. at 8.

Due to his health conditions, Plaintiff was given permission to use a single-man cell, double

mattress, crutches, wheelchair, ADA showers, and ADA van with a wheelchair at prior facilities.

Id. at 7-8. He was sent to an orthopedic surgeon for treatment of his chronic lower back problems

and associated pain. Plaintiff was prescribed pain medication, physical therapy, and steroid

injections. He was also considered for back surgery. Id. at 8-9.

Plaintiff involuntarily transferred to Pinckneyville on February 15, 2024. Id. at 9.

Dr. Myers met with him the same month, but did not want to hear about Plaintiff’s medical needs.

The doctor discontinued his medical permits for a single-man cell, double mattress, ADA van with

wheelchair, and pain medication (i.e., Tramadol).

Plaintiff was subsequently moved to progressively worse housing located farther away

from the health care unit (HCU) and forced to live with cellmates who posed a serious risk of harm

to his health and safety. He was denied a wheelchair for traveling long distances inside the facility,

and was denied access to an ADA van with a wheelchair for medical and court writs outside of the

facility. Plaintiff almost fell from the prison’s non-ADA van on April 23, 2024, and did fall from

it and further injured his back on June 12, 2024. Id. The denial of pain medication caused

additional unnecessary pain and also exacerbated his hypertension. Id. at 10.

Plaintiff notified IDOC of his need for medical care and reasonable accommodations in

letters dated March 21, 2024 and April 3, 2024. He also directed grievances to IDOC. Id. at 14.

Plaintiff indicated that he required medical care, pain medication, a double mattress, a single-man

cell, crutches, a wheelchair, an ADA shower with shower seat, and an ADA van with wheelchair.

Id. IDOC denied or disregarded his requests. Id. at 14-15.

Plaintiff sent letters to complain about these issues to Warden Barwick on April 18, 2024,

May 13, 2024, June 5, 2024, and June 18, 2024. Id. at 12. He directed several emergency

grievances to the warden, who deemed them emergencies on or around April 29, 2024 and

June 13, 2024. However, the warden affirmed the decisions of grievance officials to deny Plaintiff

pain medication, medical care, and reasonable accommodations. Id. at 12-13.

After filing a lawsuit to address these issues, Plaintiff met with Dr. Myers again on

June 27, 2024. Id. at 11. For the first time, the doctor expressed interest in his serious health

conditions. However, when Plaintiff explained that his past treatment with steroid injections and

physical therapy were ineffective, the doctor ordered another round of steroid injections for his

back pain and denied his request for a surgical consultation. Later the same night, Plaintiff

received a copy of the doctor’s waiver of service of summons for the lawsuit Plaintiff filed against

the doctor about the same issues. Id.

Plaintiff seeks the following permanent injunctive relief in his Complaint, along with

monetary relief: (1) an ADA van/vehicle with a wheelchair; (2) a wheelchair for long distance

travel inside the prison; (3) Tramadol; (4) single-man cell status; (5) ADA shower access;

(6) double mattress permit; (7) referral to a neurosurgeon to discuss back surgery; (8) removal of

Dr. Myers as Plaintiff’s primary care physician; and (9) assignment of a new primary care provider

(P.A. Ashenti Desor). Id. at 16.

Discussion

Based on the allegations, the Court designates the following claims in the pro se Complaint

(Doc. 11):

Count 1: Eighth Amendment claim against Dr. Myers and Warden Barwick for

cancelling Plaintiff’s longstanding pain medication, wheelchair, ADA van

with wheelchair, ADA showers, double mattress, and single-man cell status

at Pinckneyville.

Count 2: ADA and/or Rehab Act claims against IDOC for failing to accommodate

Plaintiff’s disabilities by denying him an ADA van with wheelchair,

wheelchair, ADA showers, double mattress, and single-man cell status at

Pinckneyville.

Any other claim that is mentioned in the Complaint but not identified above is considered

dismissed without prejudice as inadequately pled under Twombly.2

Count 1

The Eighth Amendment guarantees convicted persons living conditions that provide the

“minimal civilized measure of life’s necessities,” including food, shelter, clothing, and medical

care. Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 670 (7th Cir. 2012) (citing Rhoades v. Chapman,

452 U.S. 337, 347 (1981)). The intentional or knowing denial of these basic necessities supports

an Eighth Amendment claim. Jaros, 684 F.3d at 670.

Plaintiff brings this claim against two individual defendants: Dr. Myers and Warden

Barwick. He alleges that Dr. Myers cancelled his prescription pain medication and his permits for

an ADA van with wheelchair, ADA showers, a wheelchair, a double mattress, and single-man cell

status. Warden Barwick deemed Plaintiff’s related grievances emergencies, but affirmed the

decisions to deny reinstatement or his pain medication and permits. Plaintiff suffered increased

pain, hypertension, and other injuries as a result. Because the allegations suggest that Dr. Myers

2 See Bell Atlantic 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 to relief that is plausible on its face”).

and Warden Barwick acted with deliberate indifference when cancelling Plaintiff’s pain

medication and medical permits, Count 1 will proceed against them.

Count 2

To state a colorable claim under the ADA, 42 U.S.C. § 12101 et seq., or Rehab Act,

29 U.S.C. §§ 794–94e, a plaintiff must allege that (1) he is a qualified person with a disability; (2)

he was denied the benefits of the services, programs, or activities of a public entity or otherwise

subjected to discrimination by the entity; and (3) the denial or discrimination was because of his

disability. Jaros, 684 F.3d at 672. Here, Plaintiff alleges that his chronic back problems and leg

pain qualified him as a person with a disability and necessitated use of an ADA van with

wheelchair, a wheelchair, ADA showers, and a single-person cell.3 (Doc. 1). He further alleges

that without these accommodations, he was unable to access the prison’s health care unit, showers,

and other services and activities at the prison. These allegations are sufficient to state a claim in

Count 2 against IDOC and Warden Barwick, in an official capacity. Jaros, 684 F.3d at 670 (citing

29 U.S.C. § 794(b); 42 U.S.C. § 12131).

Motion for TRO and/or Preliminary Injunction (Doc. 12)

Plaintiff seeks a temporary restraining order and/or preliminary injunction that requires

prison officials to reinstate permits for the following: (1) an ADA van/vehicle with a wheelchair;

(2) a wheelchair for long distance travel inside the prison; (3) Tramadol; and (4) a single-man cell.

The Court may issue a TRO without notice to the party to be enjoined, if a plaintiff sets forth

“specific facts in an affidavit or a verified complaint clearly show[ing] that immediate or

irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

3 Plaintiff cannot pursue relief under the ADA or Rehab Act for the denial of a double mattress. See Jaros,

684 F.3d at 672 (showers and meals considered a “program or activity”); Boston v. Dart, 2016 WL 5373083, at *3

(N.D. Ill. 2016) (noting “the ADA was not designed to address thin mattresses and uncomfortable steel prison beds”)).

in opposition.” FED. R. CIV. P. 65(b)(1)(A). A TRO may last no more than 14 days. FED. R. CIV.

P. 65(b)(2). Plaintiff has not satisfied this standard. Reinstatement of medication, alone, requires

additional information about what medication(s) Plaintiff was taking, which one(s) he now

requires, the dose/dosage of each one, the interaction(s) with other medication(s) he now takes,

and the harm he will face without the medication. This, in turn, requires a response from the

defendants and/or medical providers. Reinstatement of his permits requires additional information

about the availability of an ADA van (with wheelchair), a wheelchair, and/or a single-man cell at

the prison and the harm Plaintiff will face without each of these things during the pending action.

This also requires a response from the defendants. Therefore, Plaintiff’s motion for a TRO is

DENIED.

A preliminary injunction is issued only after the adverse party is given notice and an

opportunity to oppose the motion. See FED. R. CIV. P. 65(a)(1). “A plaintiff seeking a preliminary

injunction must establish that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council,

Inc., 555 U.S. 7, 20 (2008) (citations omitted); Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013).

Before the Court can render a decision on this request for relief, Defendants must file a response

to the pending motion. Warden Barwick is named in an official capacity and shall be responsible

for responding to the pending motion seeking a preliminary injunction within 14 days of accepting

service of this lawsuit. The Court will then review the response and determine whether a hearing

on this motion is necessary before issuing a decision.

Motion for Recruitment of Counsel (Doc. 14)

Plaintiff requests counsel to assist him in this matter. When presented with a request for

counsel, the Court determines whether an indigent plaintiff has made sufficient efforts to secure

counsel on his own and, if so, whether the difficulty of the case, factually and legally, exceeds his

capacity as a layperson to present it. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing

Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). Plaintiff describes insufficient efforts to find

an attorney. He mailed letters to three (3) attorneys before filing suit, and he filed the motion after

receiving only one (1) response. Beyond this, Plaintiff has shown that he can represent himself

for now. He has extensive experience with litigation, as evidenced by the list of lawsuits he

disclosed in his Complaint. He also has “some college” education. His motions and pleadings are

organized and coherent. At this stage of litigation, there is little for him to do to move this case

forward. The Motion to Appoint Counsel (Doc. 14) is DENIED without prejudice.

Disposition

The Complaint (Doc. 11) survives preliminary review pursuant to 28 U.S.C. § 1915A.

COUNT 1 will proceed against Defendant PERCY MYERS and JOHN BARWICK, and

COUNT 2 will proceed against Defendant ILLINOIS DEPARTMENT OF CORRECTIONS

and JOHN BARWICK (official capacity).

Plaintiff’s Motion for Temporary Restraining Order (Doc. 12) and Motion for Recruitment

of Counsel (Doc. 14) are DENIED. The Court DEFERS a decision on the Motion for a

Preliminary Injunction (Doc. 12) until Defendants file a response. Warden Barwick, named in an

official capacity, is ORDERED to respond to the pending motion seeking a preliminary injunction

within 14 days of accepting service of this lawsuit. The Court will then review the response and

determine whether a hearing on this motion is necessary before a decision.

The Clerk of Court shall prepare for Defendants ILLINOIS DEPARTMENT OF

CORRECTIONS, PERCY MYERS, and JOHN BARWICK: (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. 11), and this

Memorandum and Order to Defendant’s 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 that Defendant, and the Court will require the Defendant to pay the full costs of formal

service, to the extent authorized by the Federal Rules of Civil Procedure.

If a Defendant can no longer be found at the work address provided by Plaintiff, the

employer shall furnish the Clerk with 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 and Local Rule 8.2, Defendants need only respond to the issues

stated in this Merits Review Order.

IT IS ORDERED that if judgment is rendered against Plaintiff, and the judgment includes

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

whether or not his application to proceed in forma pauperis is granted. 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 no later than 14 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. FED. R. CIV. P. 41(b).

The Clerk of Court is DIRECTED to ENTER the standard qualified protective order

pursuant to the Health Insurance Portability and Accountability Act.

IT IS SO ORDERED.

DATED: 8/12/2024 s/ Staci M. Yandle

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

Once identified, the Court will take the necessary steps to notify the Defendants of your

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

Defendants will enter an appearance and file an Answer to your Complaint. It will likely take at

least 60 days from the date they are served with this lawsuit to receive the Defendants’ Answers,

but it is entirely possible that it will take 90 days or more. When Defendants have filed their

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 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 this time, unless

specifically directed to do so.