Fuller v. Wurster

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

JAMES E. FULLER, )

Plaintiff, )

)

v. ) Case No. 1:24-cv-1093-SEM-EIL

)

DR. WURSTER, et al., )

Defendants. )

MERIT REVIEW ORDER

SUE E. MYERSCOUGH, United States District Judge:

Plaintiff pro se James E. Fuller, who is imprisoned within the

Illinois Department of Corrections (“IDOC”), has filed a Complaint

(Doc. 1) under 42 U.S.C. § 1983 that is before the Court for

screening. The Court holds that the Complaint states an Eighth

Amendment deliberate indifference claim against Defendants

Wurster and Nurse.

I. COMPLAINT

A. Screening Standard

The Court must “screen” Plaintiff’s complaint and dismiss any

legally insufficient claim or the entire action if warranted. 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. In reviewing the complaint, the Court

accepts the factual allegations as accurate, 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).

B. Facts Alleged

Plaintiff’s suit identifies the following Defendants at Pontiac

Correctional Center (“Pontiac”): Dr. Wurster and Dr. Howell; mental

health providers Tessa Derby, Tisha Harty, and Carrie Hamilton;

Major Brown; Lieutenant Doolin; and Warden Mindi Nurse. Plaintiff

also names as a Defendant Dr. Melvin Hinton, IDOC’s Chief Mental

Health Director.

Plaintiff alleges that, in May 2023, Defendants removed him

from his single cell status, in deliberate indifference to his serious

mental health needs and in violation of a court order in Central

District of Illinois Case Number 16-cv-1002.

Specifically, on May 26, 2023, non-party correctional staff

informed Plaintiff that he was being moved and would be double-

celled. Plaintiff showed them a court order that he alleges stated he

is to be single-celled only. The non-party lieutenant stated that he

informed Defendants Major Brown and Warden Nurse, who were

aware of the order but that a double-cell had been approved by

Defendant Dr. Wurster, as well as by Internal Affairs and Clinical

Services.

Plaintiff then spoke with Defendants Major Brown and

Lieutenant Doolin and showed them the relevant court order and an

affidavit from Defendant Dr. Hinton stating that Plaintiff was to be

single-celled. Both Brown and Doolin told Plaintiff that, because a

double-cell form had been approved, Plaintiff must either go to the

newly-assigned cell or go to segregation.

Plaintiff asked to see a mental health crisis member.

Defendant Derby arrived, Plaintiff showed her the court order and

affidavit, and Derby went with Doolin to call Dr. Wurster. Derby

reported to Plaintiff that Dr. Wurster had approved the double-cell

form. Dr. Wurster was not Plaintiff’s mental health provider. Derby

would not speak with Plaintiff further about the matter, and

Plaintiff went to the new cell at the direction of Defendants Brown

and Doolin.

Upon entering the cell and seeing another inmate on the

bottom bunk, even though Plaintiff had a bottom bunk permit,

Plaintiff began to experience an anxiety/psychotic episode. A non-

party lieutenant believed that Plaintiff might be suicidal or

homicidal, so Plaintiff was taken to see Derby again, in her capacity

as a crisis team member. After Derby conferred with a supervisor,

Plaintiff was placed in a mental health/suicide watch cell.

Plaintiff alleges that the cell was extremely unsanitary, with

evidence of feces, blood, and urine. Plaintiff was stripped naked

and had only a suicide blanket and smock.

Plaintiff was seen by mental health providers each of the

following days after his placement in the cell on May 26, 2023. On

May 29, Plaintiff saw Defendant Harty, who said that Dr. Wurster

had approved the double-celling and that Dr. Howell initially had

not known anything about that approval. On May 30, Plaintiff saw

Defendant Hamilton, who informed Plaintiff that she also had not

known about Dr. Wurster’s approval, that Dr. Wurster had not

consulted her, and that she would not have approved of double-

celling Plaintiff.

After this fourth day in the mental health cell, Plaintiff was

cleared by all mental health staff of suicidal or homicidal thoughts.

Dr. Howell instructed Defendant Harty to draft a new

recommendation for Plaintiff to be single-celled because Dr. Wurster

would not rescind the double-cell form. However, Plaintiff had to

remain in the crisis cell until Warden Nurse signed off on the new

form reinstating Plaintiff’s single-cell status. Plaintiff remained in

the crisis cell until June 17, 2023, for a total of 22 days.

C. Analysis

Based on the Court’s review, the facts alleged in the Complaint

are sufficient to state an Eighth Amendment claim for deliberate

indifference to Plaintiff’s serious mental health conditions against

Defendants Wurster and Nurse. See Roe v. Elyea, 631 F.3d 843,

857 (7th Cir. 2011) (deliberate indifference claim requires

objectively serious condition and sufficiently culpable state of

mind); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (“[I]t is

enough to show that the defendants knew of a substantial risk of

harm to the inmate and disregarded that risk.”).

This claim is not, however, based upon an alleged violation of

an order in Plaintiff’s earlier case, 16-cv-1002. Upon review of the

docket, this Court takes judicial notice of the fact that the Court in

16-cv-1002 actually denied Plaintiff’s request for a temporary

restraining order (single-cell status) as moot. That Court

apparently did not grant any single-celling order, on either a

temporary or permanent basis.

Plaintiff does not state a claim for deliberate indifference

against the remaining Defendants. “Claims of deliberate

indifference to medical needs are examined differently depending on

whether the defendants in question are medical professionals or lay

persons.” McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013).

Non-medical staff, such as correctional officers, can rely on

the expertise of medical personnel. Arnett v. Webster, 658 F.3d 742,

755 (7th Cir. 2011). Therefore, Defendants Brown and Doolin were

not deliberately indifferent to Plaintiff when they directed Plaintiff to

his new double-cell assignment after double-celling had been

approved by Dr. Wurster. See, e.g., Knight v. Wiseman, 590 F.3d

458, 465 (7th Cir.2009) (officers were entitled to rely on fact that

prisoner had no medical work restrictions on his record to conclude

that he could work without injury)

Moreover, medical professionals are “entitled to deference in

treatment decisions unless no minimally competent professional

would have so responded under [the] circumstances.” Sain v.

Wood, 512 F.3d 886, 894–95 (7th Cir.2008) (internal quotations

omitted). None of the allegations in Plaintiff’s Complaint rise to the

level of deliberate indifference by mental health providers Derby,

Harty, or Hamilton. Based upon the allegations, Derby took

Plaintiff’s complaints seriously and conferred with Dr. Wurster to

ensure that Plaintiff had in fact been approved for double-celling.

Derby also referred Plaintiff to suicide watch in a single cell after he

exhibited signs of a mental health crisis. Harty allegedly spoke to

Plaintiff once, during which time she also confirmed that Dr.

Wurster had approved him for double-celling. Finally, Hamilton told

Plaintiff that she disagreed with Dr. Wurster’s approval but that she

had not been consulted on the matter.

In short, none of these three mental health providers are

alleged to be doctors who could have overridden an order by Dr.

Wurster. “[O]fficials do not act with ‘deliberate indifference’ if they

are helpless to correct the protested conditions.” Dixon v. Godinez,

114 F.3d 640, 645 (7th Cir. 1997). Therefore, the allegations

against Defendants Derby, Harty, and Hamilton cannot give rise to

a deliberate indifference claim.

Finally, Plaintiff does not state any claim against Drs. Howell

and Hinton. Supervisors and administrators are not liable based

solely on their supervisory roles. See Brown v. Randle, 847 F.3d

861, 865 (7th Cir. 2017) (“Public officials are accountable for their

own conduct, but they are not vicariously liable for the acts of their

subordinates.”). There are no allegations that Dr. Hinton, IDOC’s

Chief Mental Health Director, had any personal involvement in the

decisions regarding Plaintiff’s placement in a single or double cell in

May 2023. As for Dr. Howell, the allegations in the Complaint

suggest that Howell had no involvement in the initial double-cell

approval by Dr. Wurster. Further, once Dr. Howell became aware of

that approval, he issued a new recommendation for Plaintiff to be

single-celled. Therefore, there is no plausible claim that Dr. Howell

was deliberately indifferent to Plaintiff’s serious mental health

condition requiring single-celling.

As for the physical conditions in the crisis cell itself, Plaintiff

has not alleged in his Complaint whether any Defendants were

aware of the alleged feces, blood, or urine. Although he references

involvement of certain Defendants in referring him to the cell or

placing him on suicide watch, he does not allege who physically

placed him in the cell and whether they noticed the conditions or

Plaintiff brought those conditions to any Defendants’ attention. Cf.

Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992) (Evidence

that “the defendants visited [an inmate’s] unit routinely, observed

the conditions described in it, but failed to take adequate corrective

measures” creates a triable issue of “the state of mind of the

defendants.”); Isby v. Clark, 100 F.3d 502, 505-06 (7th Cir. 1996)

(“[I]f the conditions were truly as dreadful as [the plaintiff] claims

[dried blood, feces, urine and food on the walls], the defendants,

given their closeness to the situation, would in all probability have

had the requisite state of mind to satisfy the subjective component

of an Eighth Amendment claim.”).

Without any identified Defendants who were alleged to have

been subjectively aware of the conditions at issue, Plaintiff cannot

proceed on a conditions of confinement claim.

II. COUNSEL REQUEST

Also pending before the Court is a Motion to Request Counsel

(Doc. 11) filed by Plaintiff.

A. Standard

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 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.

As for the second element, 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 that 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.

B. Analysis

In Plaintiff’s Motion, he attests that he has written to three law

firms to request representation in this matter but that he has not

received any responses. The Court finds that Plaintiff has satisfied

the first, threshold requirement.

Turning to the second element of the inquiry, Plaintiff refers

back to his diagnosis with serious mental health conditions. He also

explains that he suffers from a back condition and surgery that

cause pain if he sits upright for extended periods of time. Plaintiff

does not indicate his level of education but does raise concerns

common to incarcerated plaintiffs, including inconsistent access to

the law library during prison lockdowns.

The Court is sympathetic to the challenges presented by

Plaintiff’s mental and physical health conditions, as well as by his

incarcerated status. However, Plaintiff’s filings to date—in

particular, his Complaint—are clear, well-organized, and relatively

concise. Further, the Court has narrowed the claims and

Defendants in the instant Order, such that Plaintiff’s case is

proceeding on a claim of deliberate indifference that is not overly

complex. The Court will also issue a Scheduling Order that will

further explain important deadlines, discovery, and the Court’s

procedures.

In short, this case does not appear to be beyond Plaintiff’s

ability to litigate at this stage.

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) (“[F]or 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).

For these reasons, Plaintiff’s Motion is denied, with leave to

refile should his circumstances change at a later stage of litigation.

III. PRELIMINARY INJUNCTION

Finally, Plaintiff has also filed a Motion for Preliminary

Injunction (Doc. 13).

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. Facts Alleged

Plaintiff alleges that, after filing the instant Complaint, he was

transferred from Pontiac to Lawrence Correctional Center, where

there is only one mental health provider who does not have

sufficient time to provide him with adequate mental health

treatment. Plaintiff is under the care of a nurse practitioner who

has increased his medications, due to reports by Plaintiff of

increased auditory hallucinations.

Plaintiff requests an order directing Lawrence Warden

Jeremiah Brown or IDOC Chief Mental Health Director Dr. Melvin

Hinton to transfer Plaintiff from Lawrence to an IDOC facility where

he can receive adequate treatment for his serious mental health

condition.

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). Plaintiff’s request for a transfer is

different. The Seventh Circuit has described the type of injunction

Plaintiff seeks, where an injunction would require an affirmative act

by a defendant, 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).

Plaintiff’s Motion makes clear that he is receiving care by one

or more medical providers who are authorized to prescribe his

necessary psychotropic medications. Even if this were one of the

very rare cases in which a mandatory injunction might issue, it is

unclear what action either of the remaining Defendants could take

to effectuate Plaintiff’s transfer from Lawrence, given that the two

Defendants both have positions of authority only at Pontiac.

Warden Brown and Dr. Hinton are not currently parties to this suit.

Plaintiff’s request for injunctive relief must therefore be denied

at this time.

IT IS THEREFORE ORDERED:

1) According to the Court’s Merit Review of Plaintiff’s

Complaint under 28 U.S.C. § 1915A, Plaintiff has alleged

enough facts to proceed with an Eighth Amendment

deliberate indifference claim against Defendants Wurster

and Nurse. Defendants Derby, Hinton, Howell, Harty,

Hamilton, Brown, and Doolin are DISMISSED. 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 under Federal Rule of Civil Procedure 15.

2) Plaintiff’s Motion to Request Counsel [11] is DENIED,

without prejudice.

3) Plaintiff’s Motion for Preliminary Injunction [13] is

DENIED, without prejudice.

4) Plaintiff’s Motions for Status [12], [14] are MOOT.

5) 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 evidence to the Court unless otherwise

directed by the Court.

6) The Court will attempt service on Defendants by mailing

waivers of service. Defendants have sixty days from

service to file their Answers. If a Defendant has not filed

an Answer or appeared through counsel within ninety 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.

7) Concerning a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that

Defendant worked while at that address shall submit 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.

8) Defendants shall file an Answer within sixty days of the

date the Clerk sends the waiver. 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 a

Defendant’s positions. The Court does not rule on the

merits of those positions unless and until a Defendant

files a motion. Therefore, no response to an Answer is

necessary or will be considered.

9) This District uses electronic filing, which means that,

after Defendants’ counsel have filed an appearance,

counsel will automatically receive electronic notice of any

motion or other paper filed by Plaintiff with the Clerk.

Therefore, Plaintiff does not need to mail copies of

motions and other documents that Plaintiff has filed with

the Clerk to Defendants’ counsel. However, this does not

apply to discovery requests and responses. Discovery

requests and responses are not filed with the Clerk.

Instead, 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

Defendant’s counsel has filed an appearance, and the

Court has entered a scheduling order, which will explain

the discovery process in more detail.

10) Defendants’ counsel is granted leave to depose Plaintiff at

his place of confinement. Defendants’ counsel shall

arrange the time for the deposition.

11) Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.

Plaintiff’s failure to inform the Court of a change in

mailing address or phone number will result in the

dismissal of this lawsuit with prejudice.

12) 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).

13) The Court directs the Clerk to enter the standard qualified

protective order under the Health Insurance Portability

and Accountability Act.

14) The Court directs the Clerk to attempt service on

Defendants under the standard procedures.

ENTERED April 16, 2025.

s/ Sue E. Myerscough

____________________________________

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE