Larry v. Nurse

IN THE

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

JAMES A. LARRY,

Plaintiff,

v. Case No. 1:25-cv-01005-JEH

ILLINOIS DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

Order

Plaintiff James Larry, proceeding pro se, filed a Complaint under 42 U.S.C.

§ 1983 alleging violations of his constitutional rights while he was incarcerated at

Pontiac Correctional Center (“Pontiac”). (Doc. 1). This case is before the Court for

a merit review of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A. The Court

must “screen” Plaintiff’s Complaint and dismiss any legally insufficient claim or

the entire action if warranted. § 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. In

reviewing the Complaint, 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). However, conclusory statements and labels are insufficient. Enough

facts must be provided to “state a claim for relief that is plausible on its face.”

Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013) (citation omitted).

I

Plaintiff was transferred to Pontiac on June 26, 2024. Within days of his

arrival, Plaintiff alleges he became ill after drinking the water and experienced an

upset stomach, diarrhea, vomiting, indigestion, constipation, a sore throat, and

shortness of breath. Plaintiff submitted numerous sick call requests to no avail.

On October 22, 2024, Plaintiff submitted an emergency grievance to

Pontiac’s Warden, Defendant Mindi Nurse, who allegedly deemed the grievance

non-emergent and took no action.

On November 18, 2024, Plaintiff saw Defendant Jade Sullivan, a registered

nurse, for a sick call visit. Plaintiff explained his worsening symptoms and asked

Defendant Sullivan to send him to “urgent health care treatment,” but she

allegedly refused. (Doc. 1 at p. 12). Plaintiff alleges Defendant Sullivan told him

she would prescribe medication to treat his diarrhea, but he did not receive any

medication until his next visit in December.

When Plaintiff saw Defendant Sullivan for another sick call visit on

December 28, 2024, he received a blister pack of bismuth subsalicylate tablets (262

mg) for diarrhea and medication for his sore throat. Plaintiff again requested

emergent care, but Defendant Sullivan instructed Plaintiff to take the medication

for his sore throat for 30 days and submit another sick call request.

After three days of receiving the bismuth subsalicylate tablets, Plaintiff’s

prescription was discontinued. Plaintiff alleges he informed Defendant Sullivan

that the constant diarrhea exacerbated his severe hemorrhoids, but she did not

provide further medical treatment.

Plaintiff alleges that Defendants Illinois Department of Corrections

(“IDOC”), Wexford Health Sources, Inc. (“Wexford”), and IDOC Acting Director

Latoya Hughes failed to train and supervise employees “how to professionally or

properly respond to and interact with individuals in custody with serious medical

need(s) or who seek medical attention or care.” Id. at p. 5.

Plaintiff alleges that Pontiac’s drinking water has been legally classified as

contaminated and unsafe to consume. Plaintiff attached a letter addressed to

Defendant Warden Nurse from the Illinois Environmental Protection Agency

(“EPA”) to his Complaint. Id. at pp. 31-38. Plaintiff alleges that Defendants IDOC,

Wexford, Hughes, and Nurse were aware of the contaminated drinking water,

deliberately turned a blind eye to this issue, and allowed Plaintiff to consume

contaminated water. Plaintiff alleges he continues to experience a plethora of

symptoms from the unsafe water.

II

The Eighth Amendment requires the government to “provide humane

conditions of confinement; prison officials must ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of inmates.’” Farmer v. Brennan, 511 U.S. 825, 832

(1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). Conditions of

confinement that expose a prisoner to a substantial risk of serious harm are

unconstitutional. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). To demonstrate that

prison conditions violated the Eighth Amendment, a plaintiff must allege facts that

satisfy a test involving both an objective and subjective component. Farmer, 511

U.S. at 834.

The objective analysis focuses on whether prison conditions were

sufficiently serious so that “a prison official’s act or omission results in the denial

of the minimal civilized measure of life’s necessities,” id., or “exceeded

contemporary bounds of decency of a mature, civilized society.” Lunsford v.

Bennett, 17 F.3d 1574, 1579 (7th Cir. 1994).

The subjective component requires an allegation that prison officials acted

wantonly and with conscious disregard of a known risk of serious harm to

plaintiffs. Id. “Conscious disregard” means that defendants knew that plaintiffs

faced a substantial risk of serious harm and yet disregarded that risk by failing to

take reasonable measures to address it. Farmer, 511 U.S. at 847. Thus, it is not

enough for the plaintiff to prove that defendants acted negligently or should have

known of the risk. Pierson v. Hartley, 391 F.3d 898 (7th Cir. 2004). The plaintiff must

show that defendants received information from which an inference could be

drawn that a substantial risk existed and that defendants actually drew the

inference. Id. at 902.

Plaintiff alleges that Defendant Warden Nurse knew about the

contaminated drinking water based on his emergency grievance and a letter from

the Illinois EPA, but she allegedly allowed Plaintiff to continue consuming the

water, causing him to become severely ill. Based on his allegations, the Court finds

that Plaintiff has stated a plausible Eighth Amendment conditions-of-confinement

claim against Defendant Nurse.

It is also well established that deliberate indifference to a serious medical

need is actionable as a violation of the Eighth Amendment. Hayes v. Snyder, 546

F.3d 516, 522 (7th Cir. 2008). A claim of deliberate indifference contains both an

objective and a subjective component. Farmer, 511 U.S. at 834.

To satisfy the objective component, a prisoner must demonstrate that his

medical condition is “objectively, sufficiently serious.” Id. An objectively serious

medical condition is one that “has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would perceive the need

for a doctor’s attention.” Hayes, 546 F.3d at 522.

To satisfy the subjective component, the inmate must demonstrate that the

prison official acted with a “sufficiently culpable state of mind.” Farmer, 511 U.S.

at 834. The official must know of and disregard an excessive risk to the inmate’s

health; “the official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Id. at 837. The prisoner must show that the defendant engaged in more

than negligence and that the defendant’s conduct approached intentional

wrongdoing or criminal recklessness. Holloway v. Delaware Cnty. Sheriff, 700 F.3d

1063, 1073 (7th Cir. 2012) (citing Farmer, 511 U.S. at 837).

Based on his allegations, the Court finds that Plaintiff has adequately

alleged that Defendant Sullivan was deliberately indifferent to his medical

conditions allegedly caused by the contaminated drinking water in violation of the

Eighth Amendment. However, Plaintiff has not demonstrated that Defendant

Sullivan, who was a medical staff member, was personally involved in or

responsible for the conditions of the drinking water at Pontiac. Therefore,

Plaintiff’s conditions-of-confinement claim against Defendant Sullivan is

dismissed without prejudice.

Regarding Defendant Hughes, there is no respondeat superior liability under

§ 1983. Defendant Hughes cannot be liable based only on her status as IDOC

Director. See Doe v. Purdue Univ., 928 F.3d 652, 664 (7th Cir. 2019). Officials are

accountable for their own acts; they are not vicariously liable for the conduct of

subordinates. See Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009); Vance v. Rumsfeld, 701

F.3d 193, 203-05 (7th Cir. 2012) (en banc). Plaintiff does not allege that Defendant

Hughes was personally involved in any constitutional violation. See Vance v.

Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“Section 1983 creates a cause of action based

on personal liability and predicated upon fault; thus, liability does not attach

unless the individual defendant caused or participated in a constitutional

deprivation.”). Defendant Hughes is dismissed without prejudice.

Defendant Wexford may be liable under § 1983 only if it allowed an

unconstitutional policy or practice which caused the harm. See Iskander v. Vill. of

Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (applying Monell municipal liability to

private corporations performing governmental functions). While private

corporations will have liability for their own unconstitutional policy or practice,

they do not have vicarious respondeat superior liability for the actions of others. See

Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014). Plaintiff’s formulaic

recitation of the elements of a Monell claim does not suffice to allege a cause of

action against Wexford. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).

Wexford is dismissed without prejudice.

The Eleventh Amendment bars Plaintiff’s claim for damages against the

IDOC, as the IDOC is not a “person” amenable to suit under § 1983. See Wynn v.

Southward, 251 F.3d 588, 592 (7th Cir. 2001); Veal v. Illinois Dep't of Corr., No. 18-

CV-0621-MJR, 2018 WL 3009265, at *2 (S.D. Ill. June 15, 2018). Plaintiff is no longer

incarcerated at Pontiac and has not demonstrated a likelihood of return. As such,

any claim for injunctive relief against the IDOC or Defendant Hughes is moot.

Defendant IDOC is dismissed with prejudice.

III

Finally, Plaintiff filed a Motion to Request Counsel asking the Court to

appoint an attorney to represent him. (Doc. 5). “There is no right to court-

appointed counsel in federal civil litigation.” Olson v. Morgan, 750 F.3d 708, 711

(7th Cir. 2014). When evaluating a request for counsel, the Court must consider:

“(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been

effectively precluded from doing so; and if so, (2) given the difficulty of the case,

does the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d

647, 655 (7th Cir. 2007). Demonstrating a reasonable attempt to obtain counsel “is

a mandatory, threshold inquiry that must be determined before moving to the

second inquiry.” Eagan v. Dempsey, 987 F.3d 667, 682 (7th Cir. 2021) (citing Davis v.

Moroney, 857 F.3d 748, 753 (7th Cir. 2017)). Plaintiff has not demonstrated a

reasonable attempt to secure his own lawyer. Therefore, Plaintiff’s motion is

denied with leave to renew. If Plaintiff renews his motion, he is directed to attach

copies of letters he sent to or received from prospective counsel and list attorneys

or law firms he contacted and indicate whether he received a response.

IT IS THEREFORE ORDERED:

1) According to the Court's merit review of Plaintiff's Complaint under

28 U.S.C. § 1915A, this case shall proceed on (1) an Eighth Amendment conditions-

of-confinement claim against Defendant Mindi Nurse based on the allegedly

contaminated drinking water at Pontiac, which caused Plaintiff to become severely

ill, and (2) an Eighth Amendment claim against Defendant Jade Sullivan based on

her alleged deliberate indifference to Plaintiff's medical conditions caused by the

contaminated drinking water. Additional claims shall not be included in the case

above, except in the Court's discretion on motion by a party for good cause shown

under Federal Rule of Civil Procedure 15.

2) Defendants Wexford Health Sources, Inc. and Latoya Hughes are

DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6) and § 1915A. Defendant Illinois

Department of Corrections is DISMISSED WITH PREJUDICE. The Clerk is

directed to TERMINATE these Defendants.

3) Plaintiff's Motion to Request Counsel [5] is DENIED.

4) This case is now in the process of service. The Court advises Plaintiff

to wait until counsel has appeared for Defendants before filing any motions to give

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

otherwise directed by the Court.

5) The Court will attempt service on Defendants by mailing a waiver of

service. If Defendants fail to sign and return a waiver of service to the Clerk within

30 days after the waiver is sent, the Court will take appropriate steps to effect

formal service through the U.S. Marshals Service on Defendants and will require

Defendants to pay the full costs of formal service pursuant to Federal Rule of Civil

Procedure 4(d)(2).

6) Defendants shall file an answer within 60 days of the date the Clerk

sends the waiver of service. 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 Order. In

general, an answer sets forth Defendants’ positions. The Court does not rule on

the merits of those positions unless and until Defendants file a motion. Therefore,

no response to the answer is necessary or will be considered. If Defendants have

not filed an answer 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 a scheduling order setting

discovery and dispositive motion deadlines.

7) If Defendants no longer work at the address Plaintiff provided, the

entity for whom Defendants worked while at that address shall submit to the Clerk

Defendants’ current work address, or, if not known, Defendants’ forwarding

address. This information shall be used only for effectuating service.

Documentation of Defendants’ forwarding address shall be retained only by the

Clerk and shall not be maintained in the public docket nor disclosed by the Clerk.

8) This District uses electronic filing, which means that after Defendants’

counsel has filed an appearance, Defendants’ counsel will automatically receive

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

Plaintiff does not need to mail to Defendants’ counsel copies of motions and other

documents 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 his 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 Defendants’ counsel has filed an appearance and

the Court has entered a scheduling order, which will explain the discovery process

in more detail.

9) Counsel for Defendants is hereby granted leave to depose Plaintiff at

Plaintiff’s place of confinement. Counsel for Defendants shall arrange the time for

the deposition.

10) Plaintiff shall immediately inform the Court, in writing, of any change

in his 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.

11) Plaintiff shall be provided a copy of all pertinent medical records

upon request.

12) Within 10 days of receiving from defense counsel an authorization to

release medical records, Plaintiff is directed to sign and return the authorization

to defense counsel. The Clerk is directed to enter the standard qualified protective

order pursuant to the Health Insurance Portability and Accountability Act.

13) The Clerk is directed to set an internal court deadline 60 days from

the entry of this Order for the Court to check on the status of service and enter

scheduling deadlines.

It is so ordered.

Entered: March 4, 2025

s/Jonathan E. Hawley

U.S. District Judge