# Pawelkowski v. Lawrence Correctional Center

> District Court, S.D. Illinois · January 13, 2025

URL: https://www.frixlaw.com/law-library/cases/10779603

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** January 13, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10779603

## How later opinions describe it (automated extraction)

- applying municipal liability to private corporations performing governmental functions

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

LESZEK PAWELKOWSKI,

Plaintiff,

v. Case No. 24-cv-1445-RJD

T. FITZGERALD, DEE DEE
BROOKHART, JOHN/JANE DOE #1
GRIEVANCE OFFICER, CARISSA
LUKING, NURSE PRACTITIONER
WISE, LORI CUNNINGHAM,
WEXFORD HEALTH SOURCES, INC.,
and LAWRENCE CORRECTIONAL
CENTER ADMINISTRATION,

Defendants.

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
Plaintiff Leszek Pawelkowski, an inmate of the Illinois Department of Corrections
(“IDOC”) who is currently incarcerated at Danville Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In the
Complaint, Pawelkowski alleges that he has experienced a language barrier which limits
his ability to file grievances and obtain medical care while at Lawrence Correctional
Center.
This case is now before the Court for preliminary review of the Complaint
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). 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).
The Complaint
In his Complaint, Plaintiff makes the following allegations: Plaintiff is Polish and
does not understand, speak, read, or write English well (Doc. 1, p. 10). His language
limitations are well known to IDOC officials. Plaintiff alleges that Lawrence Correctional
Center officials have refused him access to interpretation services, despite the prison

having language interpretation procedures (Id. at pp. 10-11). Plaintiff alleges he was
unable to pursue remedies through the prison’s administrative process because he did
not understand the grievance process and his grievances were rejected because they were
filed in his native language. He also alleges that this action violated his due process rights
as he was unable to adequately utilize the grievance process (Id. at p. 14). Plaintiff wrote

44 grievances, but officials refused to translate the grievances and ignored his concerns
(Id. at p. 15). An additional 11 grievances were translated but his grievances still were
ignored by officials, or the responses were delayed (Id.).
Plaintiff also alleges that he is unable to receive translation services when he seeks
medical care at the prison. When he is sent outside of the prison for outside care, the

hospital finds him a Polish speaking translator, but the prison refuses to provide him
with a translator despite documented language barriers (Id. at p. 16). Plaintiff alleges that
“Wexford staff” are deliberately indifferent to his medical needs due to the language
barrier (Id.). He alleges that Lorie Cunningham documented the prison’s knowledge of
Plaintiff’s language barriers in a grievance response (Id. at p. 11).

Plaintiff submitted numerous grievances to counselor T. Fitzgerald in Polish (Id.
at p. 17). But each time, Fitzgerald merely responded that he was unable to translate (Id.).
Even for the grievances that were translated, Fitzgerald still responded that the
grievances were written in a language that the officer was unable to translate (Id.).
Plaintiff contends that the grievances were translated after the grievance officials noted
that the grievances were indecipherable. He alleges the grievance officers either ignored

the grievances or returned them because they were written in Polish (Id. at pp. 22-23).
When Plaintiff sent grievances to the Administrative Review Board (“ARB”), the
grievances were returned with a note that the prison has the ability to translate and
should address the grievances first (Id. at pp. 18, 23). Plaintiff alleges that grievance
officials had the ability to translate the grievances because two of the grievances in his

file have an appropriate response, indicating that someone was able to translate his
complaints (Id. at p. 24).
Plaintiff notes that he has another case pending in this district and has received
assigned counsel. Counsel requires a translator to communicate with Plaintiff and has
made attempts to schedule a phone conference with Plaintiff and a translator (Id.). Former

Warden Dee Dee Brookhart refused to allow the phone conferences, thus interfering with
Plaintiff’s due process rights and the right to an interpreter (Id. at p. 19). Plaintiff alleges
that his counsel had to file numerous motions to continue with the court due to delays
caused by Brookhart (Id.). Plaintiff filed grievances about this issue, but the grievance
officer noted that he was able to communicate with Plaintiff in English and offered to
write Plaintiff’s grievance complaints down for him (Id. at p. 20). Plaintiff contends that

this claim was not accurate.
Plaintiff also alleges that as a result of his language barrier, medical staff have been
deliberately indifferent to his medical needs. He alleges that medical staff at Lawrence
refuse to interpret his medical needs and his requests for care (Doc. 1, p. 25). Staff are
unable to translate the state of his care and future needs to him (Id.). Plaintiff states that
his requests for treatment have been ignored and that the denial of care has gone on for

years, indicating a pattern or practice of denying care. He submitted numerous request
forms to Nurse Practitioner Carissa Luking and Plaintiff alleges that these requests were
ignored (Id. at p. 27). All of the requests were written in Polish and were documented by
staff at the prison in his medical file (Id. at p. 28). He also submitted numerous requests
to Nurse Practitioner Wise in 2023 that Plaintiff alleges were ignored due to the language

barrier (Id. at p. 27).
On May 8, 2024, Plaintiff went to an outside hospital to see a specialist (Id. at p.
28). The specialist called a translator in order to communicate to Plaintiff his diagnosis
and treatment plan (Id.). Plaintiff informed the specialist that Lawrence refused to use a
translator service to communicate with Plaintiff (Id.). Plaintiff notes that he has been

prescribed numerous medications, but he does not know the purpose of those
medications or the need for those prescriptions due to language barriers (Id. at p. 29). Nor
has staff provided him with instructions on when and how to take the medication (Id.).
On March 20, 2024, Plaintiff saw a specialist for neck and back issues (Id. at p. 29). That
specialist also contacted a translator by phone and communicated to Plaintiff that he
would be provided with physical therapy instructions and exercises by prison staff (Id.

at pp. 29-30). Plaintiff communicated his concerns that staff at the prison would not
provide translated instructions. Correctional Officer Ackman, who attended the
appointment with Plaintiff, indicated that he would tell Nurse Practitioner Luking and
staff that Plaintiff needed translated instructions (Id. at p. 30). Plaintiff acknowledges that
Ackman did speak with Luking about his needs. But Plaintiff never received any exercise
instructions. After filing a grievance, he did receive partially translated instructions of

exercises but was only able to read about 2/3 of the instructions (Id.).
Preliminary Dismissals

Although Plaintiff lists Lawrence Correctional Center Administration as a
defendant, he fails to identify any specific official that he alleges violated his rights. He
refers to numerous grievance officials and other officials who failed to respond to his
grievances, but he fails to identify those individuals by John Doe designation. He also
refers to the “Lawrence Medical Unit”, “Wexford Staff”, and “Wexford and IDOC
Medical Administration” but fails to identify the specific medical professionals who
provided him with care. Although Plaintiff may certainly allege claims against identified
John/Jane Does (i.e., John Doe #1, John Doe #2), he refers only to administration, officials,

staff, and officers, and does not identify a specific staff member. To the extent that he
alleges any claim against the “administration”, those individuals in administrative
positions cannot be liable for the actions of staff because the doctrine of respondeat superior
(supervisory liability) does not apply to actions filed under Section 1983. See Kinslow v.
Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Officials can only be liable for their personal
involvement in Plaintiff’s care. Thus, Plaintiff fails to state a claim against Lawrence

Correctional Center Administration.
Plaintiff also lists a number of grievance officials including Counselor T. Fitzgerald
and a John Doe Administrative Grievance Officer who he alleges improperly rejected his
grievances without translating them into English. Plaintiff alleges that their failure to
translate and respond to his grievances amounted to a due process violation. But there is
no due process right implicated by the prison grievance process. See, e.g., Courtney v.

Devore, 595 F. App'x 618, 620–21 (7th Cir. 2014) (“[S]tate grievance procedures do not
create substantive liberty interests protected by due process.”); Owens v. Hinsley, 635 F.3d
950, 953–54 (7th Cir. 2011) (“Prison grievance procedures are not mandated by the First
Amendment and do not by their very existence create interests protected by the Due
Process Clause....”); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (“[A] state's

inmate grievance procedures do not give rise to a liberty interest protected by the Due
Process Clause.”). Thus, Plaintiff’s claim against Fitzgerald and the John/Jane Doe
Grievance Officer, as well as any due process claim for Plaintiff’s issues with the
grievance process, are DISMISSED without prejudice.
Plaintiff also alleges that Dee Dee Brookhart interfered with his access to courts

when she denied and delayed his phone calls with his attorney and interpreter. Inmates
have a “constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821-22
(1977). To state a claim for denial of access to the courts, a plaintiff must demonstrate that
the “defendants’ conduct prejudice[d] a potentially meritorious challenge to the
prisoner’s conviction, sentence, or conditions of confinement.” Marshall v. Knight, 445
F.3d 965, 968 (7th Cir. 2006). See also Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009). The

“complaint should state the underlying claim [that was lost] in accordance with Federal
Rule of Civil Procedure 8(a), just as if it were being independently pursued.” Christopher
v. Harbury, 536 U.S. 403, 417 (2002). Although Plaintiff alleges that Brookhart delayed calls
with his attorney, he acknowledges that his counsel was able to obtain extensions in his
case. Thus, he fails to allege that he lost an underlying claim as a result of Brookhart’s
actions. Any claim against Brookhart is, accordingly, DISMISSED without prejudice.

Plaintiff also fails to state a claim against Wexford Health Sources, Inc. Wexford
can only be liable for deliberate indifference if it had a policy or practice that caused the
constitutional violation. Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)
(applying municipal liability to private corporations performing governmental
functions); McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). But Plaintiff

merely alleges that staff and Wexford administration have a history of unconstitutional
practices, pointing to numerous cases indicating “a pattern of unconstitutional behavior”
(Doc. 1, p. 26). He fails, however, to allege that Wexford had a policy or practice of
refusing to provide care to individuals with language barriers. Instead, he merely alleges
that staff refused to interpret his requests and failed to explain his care or arriethat staff

at the prison failed to help him. Without more, Plaintiff fails to state a claim against
Wexford.
Finally, Plaintiff fails to state a claim against Lorie Cunningham. Although he
alleges that Cunningham responded to a grievance and documented his language barrier,
there are no allegations to suggest that she provided him with care or acted with
deliberate indifference towards his need for care. He merely notes that Lori Cunningham

was the healthcare unit director during the relevant time period (Doc. 1, p. 27). He notes
that he submitted a request to her on March 2, 2023, but fails to indicate the nature of the
request, the care he sought, and Cunningham’s response, if any (Id. at p. 28). Plaintiff
notes that the request was in his native Polish and it is not clear what care he sought from
Cunningham (Id; Doc. 1-4, p. 56). Thus, there are no allegations suggesting that
Cunningham acted with deliberate indifference and any claim against her is

DISMISSED without prejudice.

Discussion

Based on the allegations in the Complaint, the Court designates the following
count:
Count 1: Eighth Amendment deliberate indifference claim against
Carissa Luking and Nurse Practitioner Wise for denying
and delaying medical care to Plaintiff.

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 other claim that is
mentioned in the Complaint but not addressed in this Order should be considered
dismissed without prejudice as inadequately pled under the Twombly pleading
standard.1

1 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”).
At this stage, Plaintiff states a viable deliberate indifference claim against Carissa
Luking. Plaintiff alleges that Luking has ignored his medical requests because they are in

Polish. Luking also failed to provide Plaintiff with proper physical therapy instructions
or prescription instructions in Plaintiff’s language. Luking’s failure to translate Plaintiff’s
concerns and/or translate a diagnosis and treatment to Plaintiff can rise to the level of
deliberate indifference. See Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983) (“An
impenetrable language barrier between doctor and patient can readily lead to
misdiagnoses and therefore unnecessary pain and suffering.”). Thus, Count 1 shall

proceed against Luking.
Plaintiff also adequately states a claim against Nurse Practitioner Wise. He alleges
that he submitted numerous requests to her that were also ignored. Plaintiff includes a
number of those requests in his exhibits (Doc. 1-4). Some of the requests are in English,
requesting care for pain in his back and legs (Doc. 1-4, pp. 47-52). But Plaintiff alleges that

all of his requests to Wise were ignored. Thus, Count 1 shall also proceed against Wise.
Motion for Counsel
In addition to his Complaint, Plaintiff submitted a motion for counsel (Doc. 3). He
notes that he wrote several attorneys who refused to take his case and he cannot pay for
an attorney. He also notes that he does not speak, write, or read English well because his

native language is Polish. But given the early stage of the litigation, it is difficult to
accurately evaluate the need for the assistance of counsel. See Kadamovas v. Stevens, 706
F.3d 843, 845 (7th Cir. 2013) (“[U]ntil the defendants respond to the complaint, the
plaintiff’s need for assistance of counsel ... cannot be gauged.”).2 Defendants have not yet
been served nor has an Answer been filed. Once all defendants have filed Answers, and

the Court has entered a scheduling order setting forth the next steps in the litigation
process, Plaintiff can renew his request for counsel. At this time, his request for counsel
(Doc. 3) is DENIED without prejudice.
Disposition
For the reasons stated above, Count 1 shall proceed against Carissa Luking and
Nurse Practitioner Wise. All other claims and defendants are DISMISSED without

prejudice.
The Clerk of Court shall prepare for Defendants Carissa Luking and Nurse
Practitioner Wise: (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, and this Memorandum and Order to each

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 that defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.

2 In evaluating the motion for counsel, the Court applies the factors discussed in Pruitt v. Mote,
503 F.3d 647, 654 (7th Cir. 2007), and related authority.
If a defendant can no longer 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, 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. Section 1997e(g).

Pursuant to Administrative Order No. 244, Defendants need only respond to the issues
stated in this Merit Review Order.
Because Plaintiff’s claims involve his medical care, the Clerk of Court is
DIRECTED to enter the Court’s standard HIPAA Qualified Protective Order.
If judgment is rendered against Plaintiff, and the judgment includes the payment

of costs under Section 1915, he will be required to pay the full amount of the costs,
regardless of whether his application to proceed in forma pauperis is granted. See 28 U.S.C.
§ 1915(f)(2)(A).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; 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 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. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.

DATED: January 13, 2025.

/s/ Reona J. Daly
REONA J. DALY
U.S. Magistrate 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 your
Complaint. It will likely take at least 60 days from the date of this Order to receive the
defendants’ Answer, but it is entirely possible that it will take 90 days or more. When all
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 this time, unless specifically
directed to do so.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10779603. Public record. Not legal advice.