Rose v. Ashcraft

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

SEAN ROSE, )

)

Plaintiff, )

)

v. ) 24-cv-3033-JES

)

NANCY ASHCRAFT, et al., )

)

Defendants.

ORDER

Plaintiff, proceeding pursuant to 42 U.S.C. § 1983 pro se and presently

incarcerated at Western Illinois Correctional Center (“Western”), alleges Defendants at

Western violated his rights. Plaintiff’s Complaint (Doc. 1) was followed by a Motion for

Leave to File Amend Complaint (Doc. 13). The proposed amended complaint (Doc. 13,

at 2-76) is now before the Court for screening. Also before the Court are Plaintiff’s

Motion for Preliminary Injunction (Doc. 11) and Motion to Request Counsel (Doc. 12).

I. AMENDED COMPLAINT

A. Screening Standard

The Court must “screen” Plaintiff’s amended complaint to determine if Plaintiff

states a claim for relief. 28 U.S.C. § 1915A. A claim is legally insufficient if it “(1) is

frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2)

seeks monetary relief from a defendant who is immune from such relief.” Id.

The Court accepts the factual allegations as true, liberally construing them in the

plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). Conclusory

statements and labels are insufficient—the facts alleged must “state a claim for relief

that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013).

B. Facts Alleged

Plaintiff sues the following Defendants: Western’s Health Care Unit

Administrator (“HCUA”) Nancy Ashcraft, Western’s Director of Nursing Jamie

Kirkham, Wexford Health Sources Inc. (“Wexford”), Illinois Department of Corrections

(“IDOC”) Prison Rape Elimination Act (“PREA”) Coordinator Ryan Nottingham,

Western’s PREA Compliance Managers Melissa Johnson and Monica McClelland, IDOC

Director Rob Jeffreys, and Western’s Warden Brittany Greene.

Plaintiff alleges that he was sexually abused by staff at IDOC’s Menard

Correctional Center in February 2022, after which he was transferred to Big Muddy

River Correctional Center. He made a PREA complaint on March 9, 2022, and was

transferred to Western on March 11, 2022. The allegations in his PREA complaint were

substantiated by IDOC.

Plaintiff’s amended complaint describes an extended period of alleged,

unspecified harassment, poor living conditions, and denial of medical care and

medications following his transfer to Western.

Plaintiff alleges that his medical records substantiate that he was not receiving

prescribed medications. Plaintiff alleges that Defendant Ashcraft falsely claimed, in

response to Plaintiff’s grievances, that he had been receiving his medications, and she

did not take any measures to correct the issue. Plaintiff alleges that he directly told

Defendant Kirkham that he was not receiving his medications and she likewise did not

take any steps to correct the issue.

Plaintiff alleges that Wexford policies caused him not to be seen by a doctor and

not to receive his prescribed medications. Defendant Ashcraft allegedly confirmed that

Wexford is chronically short-staffed, that staff are not properly trained, and that they do

not keep proper records. Plaintiff alleges that Defendants Ashcraft and Kirkham both

stated that medications do not timely arrive from Wexford.

Plaintiff alleges that he suffers from debilitating mental health conditions as a

result of long-term sexual abuse and lack of treatment therefor. Defendants Johnson and

McClelland were PREA Compliance Manager at Western at different times during the

relevant period. Plaintiff alleges that they failed to implement PREA, federal

regulations, and IDOC policy, which allegedly allowed retaliation and continued

harassment of Plaintiff at Western. IDOC’s PREA Coordinator Defendant Nottingham

allegedly implemented a policy that IDOC would not engage in retaliation monitoring

if a prisoner with a substantiated PREA complaint was subsequently transferred to a

different IDOC facility.

Plaintiff alleges that Defendant IDOC Director Jeffreys was aware of the

foregoing IDOC policies, and Defendant Warden Greene was responsible for the

operation, prison conditions, and policies at Western. Plaintiff filed dozens of

grievances regarding the foregoing issues.

C. Analysis

“‘[P]rison officials must ensure that inmates receive adequate food, clothing,

shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of

the inmates.’” Daugherty v. Harrington, 906 F.3d 606, 611 (7th Cir. 2018) (quoting Farmer

v. Brennan, 511 U.S. 825, 832 (1994)). “[T]he state of mind necessary to establish liability

is deliberate indifference to the inmate’s health or safety.” Giles v. Godinez, 914 F.3d

1040, 1051 (7th Cir. 2019).

Plaintiff’s allegations are sufficient to state claims for deliberate indifference to

serious medical needs against Defendants Ashcraft and Kirkham. Plaintiff has

adequately alleged that he was suffering from objectively serious medical needs, for

which he had been prescribed medication for both mental health and physical

diagnoses. Defendants Ashcraft and Kirkham were allegedly aware that Plaintiff was

not being treated for these conditions with the prescribed medications, but did not take

any corrective actions.

Plaintiff has stated a Monell1 claim against Wexford, based on allegations that

Wexford had an official policy or widespread custom of understaffing, improperly

training staff, and delaying medications. See Daniel v. Cook County, 833 F.3d 728, 734 (7th

Cir. 2016), quoting Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir. 2016) (“To hold

defendants liable under § 1983 and Monell, [a plaintiff] must demonstrate that the

1 Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691

(1978).

defendants’ ‘official policy, widespread custom, or action by an official with final

decision-making authority was the “moving force” behind his constitutional injury.’”).

However, Plaintiff has failed to state a claim against Defendants Johnson,

McClelland, and Nottingham. Plaintiff alleges that they failed to properly implement

PREA, but PREA does not create a private right of action. See Closson v. Kohlhepp, 2021

WL 3363139, at *2 (S.D. Ind. Aug. 3, 2021) (collecting cases). Plaintiff makes general

allegations that he was subject to harassment and retaliation by non-parties as a result of

failures in the implementation of PREA, but there are no allegations that Defendants

Johnson, McClelland, and Nottingham were aware of actual constitutional violations by

others or specific risks to Plaintiff such that they can be liable for failure to intervene. See,

e.g., Coleman v. City of Peoria, Illinois, 925 F.3d 336, 345 (7th Cir. 2019) (plaintiff must allege

an underlying constitutional deprivation); see also Gevas v. McLaughlin (To support an

inference that an official had actual knowledge of a substantial risk of harm, the inmate’s

complaint to the official typically must identify “a specific, credible, and imminent risk

of serious harm.”).

Finally, Plaintiff may not proceed with claims against Defendant IDOC Director

Jeffreys and Western Warden Greene, due to their lack of personal involvement. To hold

Defendants liable under § 1983, Plaintiff must allege that “the defendants were personally

responsible for the deprivation of their rights.” Wilson v. Warren County., Illinois, 830 F.3d

464, 469 (7th Cir. 2016). In addition, processing grievances without personal involvement

in the claimed deprivation is insufficient to establish a constitutional violation. See Owens

v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011).

The amended complaint alleges that Defendant Jeffreys was aware of the PREA

policies about which Plaintiff has complained. But, as indicated above, those policies do

not give rise to a constitutional violation or another standalone private cause of action.

The amended complaint alleges that Defendant Greene was responsible for the operation,

prison conditions, and policies at Western, but the doctrine of respondeat superior

(supervisor liability) does not apply to actions filed under 42 U.S.C. § 1983. See Smith v.

Gomez, 550 F.3d 613, 616 (7th Cir. 2008) (supervisor liability not permitted under § 1983).

II. PRELIMINARY INJUNCTION

A. Standard

A preliminary injunction is “an extraordinary and drastic remedy, one that should

not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); accord Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy

never awarded as of right”). To prevail, “the moving party must demonstrate: (1) a

likelihood of success on the merits; (2) a lack of an adequate remedy at law; and (3) an

irreparable harm will result if the injunction is not granted.” Foodcomm International v.

Barry, 328 F.3d 300, 303 (7th Cir. 2003) (citations omitted). If the moving party meets the

first three requirements, then the district court balances the relative harms that could be

caused to either party. Incredible Technologies, Inc. v. Virtual Technologies, Inc., 400 F.3d

1007, 1011 (7th Cir. 2005).

The Prisoner Litigation Reform Act (“PLRA”) limits the scope of the court’s

authority to enter an injunction in the corrections context. Westefer v. Neal, 682 F.3d 679,

683 (7th Cir. 2012). Under the PLRA, preliminary injunctive relief “must be narrowly

drawn, extend no further than necessary to correct the harm the court finds requires

preliminary relief, and be the least intrusive means necessary to correct that harm.” 18

U.S.C. § 3626(a)(2); see also Westefer, 682 F.3d at 683 (PLRA “enforces a point repeatedly

made by the Supreme Court in cases challenging prison conditions: prison officials have

broad administrative and discretionary authority over the institutions they manage”)

(internal quotation marks and citation omitted).

B. Allegations

Plaintiff alleges that after he was sexually abused at Menard and then transferred

to Western he has not been subject to retaliation monitoring, as provided by PREA.

Therefore, he continues to be subject to “retaliation in many forms.”

Plaintiff seeks an order from this Court mandating an investigation by both the

IDOC and a non-IDOC affiliated body into alleged past and ongoing retaliation and

abuse alleged in his complaint. He also asks the Court to “put in place some measures to

protect [his] health and physical safety.”

C. Analysis

The purpose of a temporary restraining order or preliminary injunction is to

preserve the status quo pending a final hearing on the merits of the case. American Hospital

Association v. Harris, 625 F.2d 1328, 1330 (7th Cir. 1980). The relief Plaintiff seeks here is

somewhat different. The Seventh Circuit has described an injunction that would require

an affirmative act by a defendant—here, an investigation and retaliation monitoring by

IDOC employees—as a mandatory preliminary injunction. Graham v. Medical Mutual of

Ohio, 130 F.3d 293, 295 (7th Cir. 1997). Mandatory injunctions are “cautiously viewed and

sparingly issued,” because they require the court to command a defendant to take a

particular action. Id. (citing Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)); see also W.A.

Mack v. General Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) (mandatory injunctions very

rarely issue, except on the clearest equitable grounds).

In short, Plaintiff’s current allegations are insufficient to warrant a preliminary

injunction. Plaintiff’s request focuses on allegations that PREA is not being properly

implemented at Western. The likelihood of success on the merits weighs against the

requested injunction, because Plaintiff has not been allowed to proceed on any claim

arising out of PREA itself. Similarly, Plaintiff makes very general allegations of

retaliation, threats, and harassment, but he includes no specifics whatsoever in either the

amended complaint or in this motion. He is not proceeding on the merits of any claims

of retaliation or failure to protect. And without further details regarding the nature of any

potential threats, there is no basis to find that irreparable harm will result if an injunction

is not granted, nor that Plaintiff lacks an adequate remedy at law.

Plaintiffs Motion for Preliminary Injunction (Doc. 11) is therefore DENIED.

III. COUNSEL

Finally, Plaintiff has filed a motion requesting appointment of counsel. A pro se

litigant has no right to counsel in a civil case. Olson v. Morgan, 750 F.3d 708, 711 (7th

Cir. 2014). However, the federal statute authorizing in forma pauperis status provides a

court “may request an attorney to represent any person unable to afford counsel.” See

28 U.S.C. 1915(e)(1). A court does not have the authority to require an attorney to

accept pro bono appointments in civil cases. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.

2007).

When confronted with a request for pro bono counsel under 28 U.S.C. §1915(e)(1),

the district court is to make the following inquiries: (1) whether the indigent plaintiff

made a reasonable attempt to obtain counsel or has been effectively precluded from

doing so; and if so, (2) given the difficulty of the case, whether the plaintiff appears to

be competent to litigate it himself. Pruitt, 503 F.3d at 654-55.

The first inquiry is a mandatory threshold determination and requires that the

plaintiff attempt to obtain a lawyer independently. Eagan v. Dempsey, 987 F.3d 667, 682

(7th Cir. 2021). This typically requires writing to several lawyers and attaching the

responses received. Plaintiff states in his motion that he has written to dozens of lawyers

and legal aid clinics, and he attached as exhibits at least nine responses declining his

requests for representation. Therefore, the Court finds that plaintiff has satisfied the first,

threshold inquiry.

Turning to the second element of the inquiry, the district court must undertake

“the individualized analysis that Pruitt requires[.]” Navejar v. Iyiola, 718 F.3d 692, 697

(7th Cir. 2013). Specifically, the court must consider “whether the difficulty of the

case—factually and legally—exceeds the particular plaintiff’s capacity as a layperson to

coherently present it to the judge or jury himself.” Pruitt, 503 F.3d at 655. This inquiry

must be a “practical one, made in light of whatever relevant evidence is available on the

question.” Id. The court should take account of all evidence in the record relevant to

the plaintiff’s ability to litigate. Navejar, 728 F.3d at 696. Such evidence may include

any physical, intellectual, or psychological limitations the plaintiff may have and the

practical problems the plaintiff may encounter in gathering evidence from individuals

employed by an institution where he is no longer housed. Navejar, 718 F.3d at 698.

Assistance in recruiting counsel is appropriate only where the plaintiff shows his

case is one of those few in which it appears from the record the legal and factual

difficulty exceeds his ability to prosecute. Pruitt, 503 F.3d at 654-55. This question is

different from whether a lawyer might do a better job. Id.

In his motion, Plaintiff indicates that he is a high school graduate. However, he

explains that he believes he is not able to represent himself because of mental health

instability, trouble concentrating, potential difficulty accessing evidence while

imprisoned, and case complexity due to the medical and mental health issues implicated

by his claims in this case. Plaintiff lists numerous medications that he is currently taking,

including medications prescribed for mental health conditions.

However, upon review of Plaintiff’s filings to date, the Court finds no indication

that Plaintiff suffers from any deficiency that prevents him from effectively litigating this

case at this early stage. In particular, his amended complaint outlines factual allegations

in a remarkably clear, logical manner. And although Plaintiff is proceeding on a claim for

deliberate indifference to serious medical needs, it arises out of the relatively

straightforward allegation that he did not receive his prescribed medications—

occurrences about which Plaintiff has firsthand knowledge. Further, Plaintiff’s amended

complaint makes clear that Plaintiff has kept extensive records, including relevant

grievances and his own medical records and medication administration records. Thus,

this case does not appear to be beyond Plaintiff’s ability to litigate at this stage.

In sum, Plaintiff has not offered a persuasive reason at this stage of the litigation

why he cannot prosecute his case or why his case differs from any other of the many pro

se plaintiffs who ask for the appointment of counsel in nearly every lawsuit filed.

DeWitt v. Corizon, Inc., 760 F.3d 654, 657-58 (7th Cir. 2014); see also Navejar, 718 F.3d at

696 (noting the district judge did not consider the plaintiff’s assertions of “limited

education, mental illness, language difficulties, and lack of access to fellow prisoners or

other resources for assistance after his transfer from Stateville” in denying the motion

for counsel).

Recruiting pro bono counsel in this district is difficult, as the need far exceeds the

supply. McCaa v. Hamilton, 959 F.3d 842, 845 (7th Cir. 2020) (“District courts are thus

inevitably in the business of rationing a limited supply of free lawyer time.”). Although

“[a]lmost everyone would benefit from having a lawyer, [] there are too many indigent

litigants and too few lawyers willing and able to volunteer for these cases. Dewitt v.

Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014)(internal quotation omitted); Mejia v.

Pfister, 2021 WL 647085, * 4 (7th Cir. Feb. 19, 2021) (“for its part, the district court found

itself having to [choose] how best to allocate scarce resources, for it remains the sad

reality that there are too many indigent litigants and too few lawyers willing and able to

volunteer for these cases.”) (internal quotation omitted).

Plaintiff’s Motion to Request Counsel (Doc. 12) is therefore DENIED, without

prejudice to refiling at a later stage of litigation or should his circumstances change.

IT IS THEREFORE ORDERED:

1. Plaintiff’s Motion for Leave to File Amended Complaint [13] is GRANTED.

2. Pursuant to its merit review of the Amended Complaint under 28 U.S.C. §

1915A, the Court finds Plaintiff states an Eighth Amendment claim for

deliberate indifference to serious medical needs against Defendants

Ashcraft and Kirkham and a Monell claim against Defendant Wexford.

Defendants Jeffreys (IDOC Director), Greene, and Johnson, as well as

Defendants McClelland and Nottingham (formerly the Doe Defendants)

are DISMISSED. Any additional claims shall not be included in the case,

except at the Court’s discretion on motion by a party for good cause shown

or pursuant to Federal Rule of Civil Procedure 15.

3. Plaintiff’s Motion for Preliminary Injunction [11] is DENIED.

4. Plaintiff’s Motion to Request Counsel [12] is DENIED.

5. Plaintiff’s Motions for Status [10], [14] are MOOT.

6. This case is now in the process of service. Plaintiff is advised to wait until

counsel has appeared for the named Defendants before filing any motions,

to give notice to said Defendants and an opportunity to respond to those

motions. Motions filed before counsel has filed an appearance on behalf of

Defendants will generally be denied as premature. Plaintiff need not

submit any evidence to the Court at this time, unless otherwise directed by

the Court.

7. The Court will attempt service on Defendants by mailing each Defendant a

waiver of service. Defendants have 60 days from the date the waiver is sent

to file an answer. If Defendants have not filed answers or appeared

through counsel within 90 days of the entry of this order, Plaintiff may file

a motion requesting the status of service. After Defendants have been

served, the Court will enter an order setting discovery and dispositive

motion deadlines.

8. With respect to a named Defendant who no longer works at the address

provided by Plaintiff, the entity for whom that Defendant worked while at

that address shall provide to the clerk said Defendant's current work

address, or, if not known, said Defendant's forwarding address. This

information shall be used only for effectuating service. Documentation of

forwarding addresses shall be retained only by the Clerk and shall not be

maintained in the public docket nor disclosed by the Clerk.

9. Defendants shall file an answer within 60 days of the date the waiver is

sent by the Clerk. A motion to dismiss is not an answer. The answer should

include all defenses appropriate under the Federal Rules. The answer and

subsequent pleadings shall be to the issues and claims stated in this

opinion. In general, an answer sets forth the Defendants’ positions. The

Court does not rule on the merits of those positions unless and until a

motion is filed by the Defendants. Therefore, no response to the answer is

necessary or will be considered.

10. This district uses electronic filing, which means that, after defense counsel

has filed an appearance, defense counsel will automatically receive

electronic notice of any motion or other paper filed by Plaintiff with the

clerk. Plaintiff does not need to mail copies of motions and other papers to

defense counsel that Plaintiff has filed with the Clerk. However, this does

not apply to discovery requests and responses. Discovery requests and

responses are not filed with the clerk. Plaintiff must mail discovery

requests and responses directly to Defendants' counsel. Discovery requests

or responses sent to the Clerk will be returned unfiled unless they are

attached to and the subject of a motion to compel. Discovery does not begin

until defense counsel has filed an appearance and the Court has entered a

scheduling order, which will explain the discovery process in more detail.

11. Defense counsel is hereby granted leave to depose Plaintiff and shall

arrange the time for the deposition.

12. Plaintiff shall immediately notify the Court, in writing, of any change in

mailing address and telephone number. Plaintiff's failure to notify the

Court of a change in mailing address or phone number will result in

dismissal of this lawsuit, with prejudice.

13. If a Defendant fails to sign and return a waiver of service to the Clerk

within thirty days after the waiver is sent, the Court will take appropriate

steps to effect formal service through the U.S. Marshals service on that

Defendant and will require that Defendant to pay the total costs of formal

service under Federal Rule of Civil Procedure 4(d)(2).

14. The Clerk is directed to enter the standard qualified protective order

pursuant to the Health Insurance Portability and Accountability Act.

15. The Court directs the Clerk to attempt service on Defendants under the

standard procedures.

Entered this 11th day of December, 2024.

s/James E. Shadid

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE