Gay v. McDannald

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

BARRI GAY, )

)

Plaintiff, )

)

v. ) Case No. 25-3009-CSB

)

JOSHUA McDANNALD, et al., )

)

Defendants. )

MERIT REVIEW ORDER

COLIN S. BRUCE, United States District Judge:

Pro se Plaintiff Barri Gay has filed a Complaint (Doc. 1) under 42 U.S.C. § 1983,

which is before the Court for screening, together with a Motion for Preliminary

Injunction (Doc. 5) and Motions to Request Counsel (Docs. 4, 9).

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

At all times relevant to his Complaint, Plaintiff was an inmate at Taylorville

Correctional Center (“Taylorville”).

Plaintiff’s suit names the following Defendants at Taylorville: Warden Joshua

McDannald, Director of Nursing (“DON”) Jacquelyn Dumonceux, Registered Nurse

Kristen Lubebu, Nurse Practitioner Krista Tipton, Nurse Pat (last name unknown), and

John and Jane Doe health care providers. In the case caption, Plaintiff also lists the State

of Illinois and the Illinois Department of Corrections (“IDOC”).

On March 9, 2024, Plaintiff alleges that he was using the telephone in housing

unit 2B when two inmates told him that if he did not end the call immediately they

would take all of his property. Plaintiff alleges that he made eye contact with an officer,

who heard the threat.

The inmates proceeded to Plaintiff’s room. Plaintiff followed them, allegedly

assuming that the officer was just behind him. Instead, Plaintiff was physically attacked

by the other inmates.

Plaintiff alleges that the administration at Taylorville was aware of ongoing

issues regarding phone usage in unit 2B because on March 8, 2024, another inmate was

moved out of 2B due to “phone bullying.” Plaintiff alleges that there was a “phone list

policy in place to minimize the risk of dangers to inmates” but that the administration

chose not to utilize or enforce it in all housing units.

During the attack on May 9, 2024, Plaintiff’s foot got caught under the metal

bunkbed platform, his body twisted, he hit his face on the bunk, and he broke his foot

and ankle and dislocated his foot.

Plaintiff was taken to the prison Health Care Unit (“HCU”) and then sent to the

hospital. On March 19, 2024, Plaintiff underwent surgery, which included the

placement of seven screws. Plaintiff’s surgeon directed that pain medication should be

regularly administered for the first 24 hours. Plaintiff returned to the Taylorville HCU.

On March 20, 2024, Plaintiff asked Defendant Tipton why he had not yet received any

pain medication. Defendant Tipton confirmed that Dr. Goodman, his doctor at

Taylorville, had signed orders prescribing pain medication Percocet, as recommended

by the surgeon, but Tipton allegedly told Plaintiff that the DON Defendant Dumonceux

was “against the usage of percocet” and was therefore “going to make sure that the

doctor really wanted to administer this drug.” However, when Plaintiff complained,

Tipton said the prescription would be filled.

Plaintiff did not receive his first dose of pain medication until more than 24

hours after his surgery. On March 21, 2024, he alleges that he had to be rushed to an

outside hospital, due to excruciating pain, and was given fentanyl.

When Plaintiff returned to Taylorville on March 22, 2024, he was moved to

segregation. He alleges that he suffered severe pain due to his pain medications being

delivered late from March 22 to March 27, 2024. Defendant Pat told Plaintiff that his

evening dose on March 27 was his last pain medication. Plaintiff complained to nursing

staff that he was in excruciating pain from March 27 through April 2, after which he

was prescribed tramadol until April 8, 2024. In total, Plaintiff alleges that for 8 of the 21

days following his surgery, he went without pain medication. Plaintiff continued to put

in requests to see Dr. Goodman, but his requests were ignored or denied by staff in the

Taylorville HCU.

Plaintiff did not see his surgeon for a follow-up visit until June 16, 2024. His

surgeon ordered physical therapy for Plaintiff for four weeks, as well as a follow-up

visit in three weeks. Plaintiff alleges that Defendant Demonceux denied his follow-up

visit with the surgeon.

Plaintiff saw a physical therapist for a consultation on August 4, 2024. The

physical therapist recommended a different shoe for support and stability, as well as

physical therapy two times per week for three weeks. On August 16, 2024, Defendants

McDannald, Demonceux, and Tipton denied Plaintiff’s request for the recommended

shoes.

Dr. Goodman saw Plaintiff at Taylorville on September 24, 2024, and ordered x-

rays and a follow-up appointment with Plaintiff’s surgeon. Plaintiff alleges Defendant

Demonceux denied the follow-up appointment.

Plaintiff did not begin physical therapy until November 12, 2024, and received

only five of the eight sessions. Plaintiff did not see his surgeon until December 2, 2024.

The surgeon took x-rays, which he told Plaintiff showed that the long screw connecting

his foot and ankle was broken. The surgeon prescribed Plaintiff a brace, a cane, and

shower accommodations. Plaintiff alleges that Defendant Demonceux denied his cane

and brace.

C. Analysis

In order to state an Eighth Amendment claim of deliberate indifference to a

serious medical need, a complaint must adequately allege that (1) the plaintiff had an

objectively serious medical need, and (2) the defendant was deliberately indifferent to

that need. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

Plaintiff has adequately alleged that he suffered from a serious medical condition

due to a broken and dislocated foot and ankle that required surgery involving the

placement of multiple screws and caused severe pain. See Cesal v. Moats, 851 F.3d 714,

721 (7th Cir. 2017) (“Objectively serious medical needs are those that have either been

diagnosed by a physician and demand treatment, or are ‘so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.’”).

“Failing to provide care for a non-medical reason, when that care was

recommended by a medical specialist, can constitute deliberate indifference.” Mitchell

v. Kallas, 895 F.3d 492, 498 (7th Cir. 2018); see also Petties v. Carter, 836 F.3d 722, 729 (7th

Cir. 2016) (A doctor’s “refus[al] to take instructions from a specialist” may constitute

evidence that the doctor knew their treatment decisions created a serious risk to an

inmate’s health.).

Here, Plaintiff has alleged that Defendant Dumonceux denied him prescribed

pain medication for the first 24 hours and denied him medical permits or assistive

devices (shoes, cane, brace) as well as recommended follow-up care with the surgeon

and physical therapy. Plaintiff has also alleged that Defendants McDannald and Tipton

were involved in denying his medical shoes recommended by the physical therapist.

Therefore, Plaintiff may proceed on an Eighth Amendment deliberate indifference claim

against each of these individual Defendants.

Likewise, Plaintiff alleges that one or more Doe Defendants in the Taylorville

HCU delayed or denied him pain medication and an appointment with Dr. Goodman.

Plaintiff may also proceed on a deliberate indifference claim against these Doe

Defendants, including Nurse Pat “Doe.” See Smego v. Mitchell, 723 F.3d 752, 757 (7th

Cir. 2013) (“Even personnel who are not doctors are not permitted simply to ignore a

detainee’s plight, nor can they deliberately obstruct or delay a patient from receiving

necessary treatment.” (internal citations omitted)).

However, Plaintiff has not stated a claim against Defendants Lubebu, the State of

Illinois, or IDOC. “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.” Vance v. Peters, 97 F.3d 987, 991

(7th Cir. 1996). Here, Plaintiff’s Complaint does not contain any relevant allegations

about actions taken by Defendant Lubebu.

As for the State of Illinois and IDOC, there is no vicarious liability under § 1983

solely based upon an employer relationship. See Monell v. Department of Social Services of

City of New York, 436 U.S. 658, 692 (1978); Brown v. Randle, 847 F.3d 861, 865 (7th Cir.

2017). Rather, to proceed on a claim against a government entity, Plaintiff must allege

“(1) that he…suffered a deprivation of a constitutionally protected interest, and (2) that

the deprivation was caused by an official policy, custom or usage” of that defendant,

acting under color of state law. Powe v. City of Chicago, 664 F.2d 639, 643 (7th Cir. 1981);

Shields v. Illinois Department of Corrections, 746 F.3d 782, 789-90 (7th Cir. 2014).

Plaintiff has not plausibly alleged that any official policy or custom of the State of

Illinois or IDOC resulted in the violation of his constitutional rights. Plaintiff’s

Complaint does not contain any allegations regarding policies that impacted his

medical care or treatment.

And while Plaintiff alleges that there was a “phone list policy” that was not

enforced in various areas of Taylorville, there is insufficient information pled regarding

the content of that policy and the decisionmakers responsible for its non-enforcement.

Therefore, Plaintiff likewise cannot pursue a Monell claim based upon the physical

attack resulting in Plaintiff’s injuries.

II. PRELIMINARY INJUNCTIVE RELIEF

Plaintiff has also filed a Motion for a Temporary Restraining Order and

Preliminary Injunction (Doc. 5), together with a Declaration (Doc. 6) in support thereof.

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’s Motion and supporting Declaration recite many of the facts alleged in

the Complaint regarding the denial of appropriate medical care, devices, and

accommodations prescribed by his surgeon and physical therapist. Plaintiff alleges he

suffers from “ongoing pain, swelling, stiffness, limited range of motion, shifting and

clicking of ankle when he walks, a pronounced limp, and a broken screw in his leg and

foot.”

Plaintiff asks that this Court enter an Order directing Defendants McDannald

and Demonceux (1) to arrange for Plaintiff to be examined by an orthopedic specialist

who should evaluate the current condition of his right ankle and foot and prescribe

physical therapy to restore the full function of his right ankle, (2) to provide Plaintiff

with a cane and brace, and (3) to allow Plaintiff to procure the shoes recommended by

the physical therapist.

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).

Rather than seeking to preserve the status quo, Plaintiff is seeking an order

requiring affirmative acts by Defendants, which constitutes a mandatory preliminary

injunction. See 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).

Based upon the record before it, the Court finds that Plaintiff has a good

likelihood of success on the merits of his deliberate indifference claim.

However, the likelihood of irreparable harm at this stage is mixed. The Court

finds relevant Plaintiff’s statement in his Declaration, in which he indicated that the

physical therapist told him that “there was little to be gained” from physical therapy,

due to the delays in scheduling that had already occurred from March to November

2024. An additional 1.5 years have elapsed since November 2024, and the Court can

only reasonably conclude that the passage of time has not increased the likelihood that

mandating additional therapy can restore Plaintiff’s full mobility.

The Court does not discount the pain or discomfort that Plaintiff faces, nor the

fear that his mobility will be permanently limited. Still, mindful that mandatory

injunctions are very sparingly issued, the Court denies Plaintiff’s request that the Court

order Defendants to provide a specific referral, treatment, or equipment at this time.

The Court advises, however, that this denial is without prejudice to Plaintiff filing a

future request for temporary injunctive relief.

III. REQUEST FOR COUNSEL

Finally, Plaintiff has filed a form Motion to Request Counsel (Doc. 4), followed

by a supplemental filing (Doc. 9) summarizing the attorneys he had contacted to

request assistance and listing further reasons that he is asking for 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 the

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

(7th Cir. 2021). Plaintiff indicates, in his later filing, that he has written to at least eight

law firms or attorneys. He has received only two responses, declining to represent

him. Therefore, the Court finds 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 Plaintiff’s Motion, he indicates that he has completed some college. However,

he asserts that this is a complex case, he will face limitations to his ability to participate

in discovery—including expert discovery—due to his status as an inmate, and he has

limited knowledge of the law and no federal litigation experience.

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, 760

F.3d at 657 (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)).

Although Plaintiff’s case does involve medical issues, Plaintiff’s Complaint and

the exhibits attached thereto make clear that Plaintiff has access to his medical records

and is able to summarize the relevant occurrences. More generally, upon review of

Plaintiff’s filings to date, the Court finds Plaintiff to have clearly articulated relevant

facts and cited relevant caselaw. As to participation in discovery, the Court will issue a

Scheduling Order that is meant to assist Plaintiff in understanding the relevant

procedures and the discovery process—which consists of written discovery and

requests for documents or other evidence.

All federal lawsuits bear a level of complexity. But the Court, on the specific

facts of this case, finds Plaintiff can represent himself at this time.

IT IS THEREFORE ORDERED:

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

28 U.S.C. § 1915A, Plaintiff has alleged enough facts to proceed with an Eighth

Amendment claim of deliberate indifference to a serious medical condition

against Defendants McDannald, Dumonceux, Tipton, Nurse Pat “Doe,” and

John/Jane Does. Defendant McDannald will also remain in his official capacity,

for purpose of participating in discovery to identify the Doe Defendants and to

carry out any injunctive relief. 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) The Clerk is directed to dismiss the following Defendants: Kristen Lubebu, the

State of Illinois, and the Illinois Department of Corrections.

3) Plaintiff’s Motion for Preliminary Injunction [5] is DENIED, without prejudice.

4) Plaintiff’s Motions to Request Counsel [4], [9] are DENIED, without prejudice.

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 any evidence to the Court at this time unless

otherwise directed by the Court.

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

Defendants have sixty days from service to file an Answer. If Defendants have

not filed Answers 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) If a Defendant no longer works at the address Plaintiff provided, the entity for

whom that Defendant worked while at that address shall submit to the Clerk

Defendant’s current work address or, if not known, 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 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.

9) 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 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. 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.

10) The Court grants Defendants’ counsel leave to depose Plaintiff at his place of

confinement. Defendants’ counsel shall arrange the time for the deposition.

11) 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 the dismissal of this

lawsuit with prejudice.

12) If a Defendants 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. Formal

service will require the Defendant to pay the associated costs 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 on May 22, 2025.

s/Colin Stirling Bruce

COLIN S. BRUCE

U.S. DISTRICT JUDGE