Griffin

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MATTHEW JAMES GRIFFIN,

Plaintiff,

Case No. 25-cv-01308-SPM

v.

DEE DEE BROOKHART,

LATOYA HUGHES,

JEREMIAH BROWN,

ASSISTANT WARDEN JENNINGS,

MAJOR HENTON,

MAJOR WHEELER,

CODY PIPER,

LIEUTENANT SHELBY,

SERGEANT JOHNSON,

SERGEANT HILL,

JOHN DOE 1,

JOHN DOE 2,

JOHN DOE 3,

JOHN DOE 4,

JOHN DOE 5,

JOHN DOE 6,

JOHN DOE 7,

JOHN DOE 8,

JOHN DOE 9,

NURSE PRACTITIONER WISE,

C/O MARTIN,

LAWRENCE CORRECTIONAL

CENTER,

ILLINOIS DEPARTMENT OF

CORRECTIONS, and

SUMMERS,1

Defendants.

1 In the First Amended Complaint, Plaintiff asserts allegations against an individual named Summers in the section

describing the nature of his case and in the “cause of action” section. Summers, however, is not listed as a defendant

in the case caption. The Court usually will not treat individuals not listed in the caption as defendants. See Myles v.

United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (to be properly considered a party a defendant must be “specif[ied]

in the caption”). However, because Summers appears to be left out of the case caption due to oversight and for the

sake of judicial economy, the Clerk of Court will be directed to add Summers as a defendant on the docket.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Matthew Griffin, an inmate of the Illinois Department of Corrections (IDOC) who

is currently incarcerated at Lawrence Correctional Center, brings this civil action pursuant to 42

U.S.C. § 1983 for violations of his constitutional rights, the Americans with Disabilities Act

(ADA), and the Rehabilitation Act (RA). The First Amended Complaint is now before the Court

for preliminary review pursuant to 28 U.S.C. § 1915A. Under Section 1915A, any portion of a

complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be

granted, or requests money damages from a defendant who by law is immune from such relief

must be dismissed. See 28 U.S.C. § 1915A(b).

THE FIRST AMENDED COMPLAINT

Plaintiff alleges the following: Plaintiff was transferred into the custody of the Illinois

Department of Corrections from New Mexico under the Interstate Correctional Compact on

August 25, 2022. (Doc. 10, p. 6). Upon his arrival at Stateville Correctional Center, prison officials

concluded that Plaintiff was “likely handicapped and assigned [him] to an ADA cell.” (Id.). The

following day, medical staff confirmed that Plaintiff was handicapped due to his vision impairment

and “shoulder dysfunction.” (Id.). Medical staff issued Plaintiff a medical permit specifying that

he was to be (1) celled in an ADA cell located on a lower gallery with a low bunk bed; (2) issued

an eye patch, a magnification card, and a digital talking book player; and (3) restrained by

handcuffing his hands in front of his body due to his shoulder injury. (Id. at p. 6, 35). Plaintiff

provided medical staff with medical records and medical permits from his previous institutions.

(Id. at p. 7). On September 16, 2022, Plaintiff was transferred from Stateville Correctional Center

to Lawrence Correctional Center and assigned to a “handicapped cell, R8-CL-22” in

Administrative Detention, which is a high security level housing unit. (Id. at p. 8-9, 11).

On September 24, 2022, Plaintiff had an appointment with Dr. Percy Myers. (Doc. 10, p.

9). Dr. Myers issued a medical permit specifying that Plaintiff was to be (1) celled in a cell located

on a lower gallery with a low bunk bed; (2) issued an eye patch, magnification card, knee sleeve,

orthotic shoes, and a digital book player; and (3) restrained using waist chains. (Id. at p. 9, 42). At

some point in 2022, Dr. Myers also ordered physical therapy for Plaintiff’s shoulder and prescribed

gabapentin for his shoulder pain, neuropathy, and sciatic nerve pain. (Id. at p. 10).

From September 16, 2022, through January 22, 2023, Plaintiff’s medical permit was

honored, and he was restrained using waist chains whenever he was transported from his cell.

(Doc. 10, p. 10). He states that the Illinois Department of Corrections had in effect Administrative

Directive 0512101, which provides, “Administrative Detention inmates are to be restrained behind

the back prior to exiting their cell unless medically contradicted.” (Id. at p. 12). Although he was

housed in Administrative Detention, Plaintiff has never received a prison misconduct report while

in the custody of the Illinois Department of Corrections. (Id.). Starting on January 22, 2023,

Plaintiff was informed that Warden Brookhart did not approve any waist chain medical permits,

and she was cancelling the waist chain medical permits of those held in Administrative Detention.

(Id. at p. 10-11).

Specifically, on January 22, 2023, Lieutenant Shelby, Sergeant Hill, Correctional Officer

Martin, and Correctional Officers John Does 8 and 9, came to Plaintiff’s cell and ordered him to

“submit to wrist restraints behind the back.”2 (Doc. 10, p. 18). Plaintiff showed the officers his

medical permit which required medical restraints in front or waist chain restraints. (Id.). The

officers responded that Warden Brookhart had not approved the medical permit and that the

medical permit had been cancelled. (Id.). Plaintiff was again directed to “submit to restraints

2 Plaintiff specifies that the terms wrist restraints and handcuffs as synonymous. (Doc. 10, p. 7).

behind the back,” and he complied. (Id.). One or more of the officers forced Plaintiff’s wrists

together for handcuffing behind his back causing his right shoulder to dislocate. (Id.). Plaintiff fell

to the ground and injured his right knee, right elbow, and the right side of his head. (Id.)

On January 25, 2023, Plaintiff’s shoulder was dislocated again. (Doc. 10, p. 13). This time,

Lieutenant Piper, Sergeant Johnson, Summers, and Correctional Officers John Does 1, 2, 3, and 4

came to Plaintiff’s cell and ordered Plaintiff to be handcuffed behind his back. (Doc. 10, p. 13).

When Plaintiff showed the officers his medical permit, they responded that Warden Brookhart had

not approved the medial permit and that “security trumps medical.” (Id.). Plaintiff was directed to

“submit to restraints behind the back,” and he complied. Plaintiff’s arms were pulled behind his

back causing his right shoulder to dislocate. (Id.). He collapsed to the floor of his cell in pain. (Id.).

Officers entered the cell and pulled Plaintiff up from the floor by his arms, and he was taken to the

showers. (Id.). Plaintiff was later escorted to the medical unit for a shoulder x-ray. (Id.). During

his x-ray and exam, he remained restrained with his hands handcuffed behind his back. (Id.).

Plaintiff then returned to his cell. (Id.).

Assistant Warden Jennings came and spoke with Plaintiff at his cell. (Doc. 10, p. 13-14).

Plaintiff showed Jennings his medical permit. (Id.). Jennings affirmed that Warden Brookhart had

not approved any medical permits for waist chains. (Id.). Jennings then ordered Piper, Johnson,

Summers, and John Does 1 and 2 to continue handcuffing Plaintiff behind his back when he leaves

his cell. (Id.).

Between 11:45 and 12:30 that same day, Piper, Johnson, Summers, and John Does 3 and 4

returned to Plaintiff’s cell, and again, he was directed to submit to handcuffing behind his back.

(Doc. 10, p. 14). Plaintiff showed the officers his medical permit. (Id.). The officers repeated that

Warden Brookhart had not approved the medical permit and that they had been directed by Major

Henton, Major Wheeler, and Assistant Warden Jennings to restrain Plaintiff with his arms behind

his back. (Id.). Plaintiff complied with the instructions, and his right shoulder dislocated when his

wrists were pulled together to secure the handcuffs. (Id. at p. 15). Plaintiff collapsed to the floor.

(Id.).

Nurse Practitioner Wise came to the cell, and Piper told her that Plaintiff’s medical permit

needed to be changed so that Plaintiff would not sue them. (Doc. 10, p. 15). Wise told Plaintiff

that because security did not approve of his medical permit, she was going to “change it.” (Id.).

She stated, “security trumps medical.” (Id.). Wise issued a new medical permit that stated, “ok to

double cuff behind the back to transfer to waist chains.” (Id.).

On January 27, 2023, Johnson, Summers, and John Does 5 and 6 came to Plaintiff’s cell

and instructed him to submit to being handcuffed behind his back. (Doc. 10, p. 16). At the time,

Plaintiff had not received the new medical permit issued by Nurse Practitioner Wise. (Id.). Plaintiff

showed the officers his medical permit and was told that the permit was not approved by Warden

Brookhart. (Id.). Plaintiff then submitted to wrist restraints behind the back, and his shoulder

slipped out of joint. (Id.). He collapsed to the floor of his cell. (Id.). John Doe 7, a nurse, came to

the cell and refused to exam Plaintiff’s shoulder. (Id.). Instead, she instructed the officers to lift

Plaintiff off the floor, causing the “painful relocation of [his] shoulder.” (Id. at p. 16-17).

Plaintiff states that his requests to be restrained using waist chains continued to be denied

by Warden Brookhart on April 24, 2023, and May 2, 2023. (Doc. 10, p. 19). His requests were

also denied by Director Hughes on July 14, 2023, and November 7, 2023. (Id. at p. 19-20).

PRELIMINARY DISMISSAL

The Court dismisses any claim brought against Lawrence Correctional Center. To the

extent Plaintiff asserts constitutional violations, Lawrence Correctional Center is not a “person”

subject to suit for money damages under Section 1983. Thomas v. Ill., 697 F.3d 612, 613 (7th Cir.

2012). To the extent Plaintiff brings his claims under the ADA and RA, the proper defendant is

the agency or its director in his or her official capacity, not the building in which Plaintiff resides.

Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 670 n. 2 (7th Cir. 2012). Because Lawrence Correctional

Center cannot be sued under Section 1983, the ADA, or the RA, it shall be terminated as a

defendant.

DISCUSSION

Based on Plaintiff’s allegations and his articulation of his claims, the Court designates the

following counts:

Count 1: Eighth Amendment excessive force and/or failure to intervene claim

against Brookhart, Hughes, Brown, Jennings, Henton, Wheeler,

Piper, Shelby, Johnson, Hill, Martin, Summers, and John Does 1, 2,

3, 4, 5, 6, 8, and 9.

Count 2: Eighth Amendment deliberate indifference claim against Brookhart,

Hughes, Brown, Jennings, Henton, Wheeler, Piper, Shelby,

Johnson, Hill, Martin, Summers, Wise, and John Does 1, 2, 3, 4, 5,

6, 7, 8, and 9.

Count 3: Civil conspiracy claim against Brookhart, Hughes, Brown,

Jennings, Henton, Wheeler, Piper, Shelby, Johnson, Hill, Martin,

Summers, Wise, and John Does 1, 2, 3, 4, 5, 6, 7, 8, and 9.

Count 5: ADA/RA claim against IDOC.

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

First Amended Complaint but not addressed in this Order should be considered dismissed

without prejudice as inadequately pled under the Twombly3 pleading standard.

Count 1

Not every use of force against an inmate is unconstitutional. Only the “unnecessary and

wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth

3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Amendment.” Whiltey v. Albers, 475 U.S. 312, 319 (1986) (internal quotations and citations

omitted). Therefore, “[c]orrectional officers violate the Eighth Amendment when they use force

maliciously and sadistically for the very purpose of causing harm, but not when they apply it in

good faith to maintain or restore discipline.” Jackson v. Angus, 808 F. App’x 378, 382 (7th Cir.

2020) (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). See also Rice ex rel. Rice v. Corr.

Medical Servs., 675 F.3d 650, 668 (7th Cir. 2012) (use of pepper spray justified when inmate

refused to comply with order to step out of cell).

At this stage Plaintiff has pled sufficient facts to support the inference that Defendants

Piper, Shelby, Hill, Martin, Summers, Johnson, and John Does 1, 2, 3, 4, 5, 6, 8, and 9 restrained

him with his hands behind his back on four occasions in January 2025 with the intent to cause

harm and not in good faith. Plaintiff asserts that despite showing Defendants Shelby, Hill, Martin,

Piper, Johnson Summers, and John Does 1, 2, 3, 4, 5, 6, 8, and 9 that he had a medical permit

requiring waist chain restraints, they handcuffed him with his hands behind his back, severely

injuring his shoulder. Each time, Defendants responded that Warden Brookhart “had not approved

the medical orders” and that security is prioritized over medical directives. The justification of

security, however, is called into question by Plaintiff’s assertions that he has never had a

disciplinary report written against him and that his medical permit had previously been honored in

the proceeding months. See Verser v. Smith, No. 14 CV 1187, 2016 WL 3595727, at *3 (N.D. Ill.

2016) (“The issue presented here is not the need for a type of restraint which is inherently

discomforting, but the unnecessary use of a painful means of restraint when an alternative is

available and specifically prescribed by a prison physician.” (quoting Perez v. Jackson, No. 99-

2874, 2000 WL 893445, at * (E.D. Pa. 2000))). Because it is alleged that Defendants knowingly

disregarded Plaintiff’s medical permit and maliciously and sadistically restrained him in a manner

that caused him injury, Count 1 will proceed against Shelby, Hill, Martin, Piper, Johnson,

Summers, and John Does 1, 2, 3, 4, 5, 6, 8, and 9 for excessive force and/or failure to intervene.

See Sanchez v. City of Chi., 700 F.3d 919, 925-26 (7th Cir. 2012) (an officer can be liable for both

for his own use of excessive force and his failure to take reasonable steps to stop the use of

excessive force by fellow officers); Verser, 2016 WL 3595727, at *6 (allegations that the officer

refused to loosen the handcuffs placed on an inmate by another officer and ignored complaints that

the handcuffs were too tight stated a plausible claim of excessive force, as opposed to failure to

intervene).

Plaintiff attempts to assert “supervisory liability for excessive use of force” against

Defendants Brookhart, Hughes, Brown, Jennings, Henton, Wheeler, Piper, Shelby, and Johnson.

(Doc. 10, p. 24). He asserts that these individuals “ordered or otherwise authorized the other named

subordinate Defendants to use force to restrain [him] in a manner that they knew would cause

injury or harm.” (Id.).

There is no respondeat superior liability, however, under Section 1983. An individual

cannot be held liable solely because of his or her supervisory position. See Perez v. Fenoglio, 792

F.3d 768, 781 (7th Cir. 2015). In order to be held individually liable for a civil rights violation, “a

defendant must be ‘personally responsible for the deprivation of a constitutional right.’” Sanville

v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d

612, 651 (7th Cir. 2001)).

As stated above, Plaintiff has sufficiently alleged personal involvement in his excessive

force claim by Defendants Piper, Shelby, and Johnson, who were directly involved in disregarding

his medical permit and handcuffing Plaintiff with his hands behind his back in January 2023, and

Count 1 is proceeding against Piper, Shelby, and Johnson.

As to the other remaining supervisory defendants, Director Hughes, Warden Brookhart,

Assistant Warden Brown, Assistant Warden Jennings, Major Henton, and Major Wheeler, Plaintiff

asserts that he showed his medical permit to Brookhart and Brown on October 28, 2022. (Doc. 10,

p. 9). He goes on to state that in January 2023, Brown, Jennings, Henton, and Wheeler informed

him that Brookhart no longer approved waist chain medical permits. (Id. at p. 10). Plaintiff spoke

with Jennings on January 25, 2023, about his medical permit not being honored resulting in his

injury, and Jennings affirmed that Brookhart had not approved the permit and instructed the

correctional officers to continue handcuffing Plaintiff behind his back. (Id. at p. 14). He further

asserts that he was told by correctional officers that Henton, Wheeler, and Jennings had instructed

them to restrain him with his hands behind his back. (Id.).

Based on these allegations Defendants Brookhart, Brown, Jennings, Henton, and Wheeler

were aware of Plaintiff’s medical permit but still directed for him to be restrained with his hands

behind his back causing injury, despite the fact Plaintiff was not a security threat. These allegations

are sufficient to establish personal involvement and that Defendants knew about the repeated use

of excessive force and either facilitated, approved, condoned, or turned a blind eye to it. T.E. v.

Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (citation omitted). Count 1 will proceed against

Brookhart, Brown, Jennings, Henton, and Wheeler.

Count 1, however, will be dismissed as to Director Hughes. The only factual allegations

against Hughes are that she denied his request to retain video footage and that she denied his

requests for accommodation in writing on July 14, 2023, and November 7, 2023. (Doc. 10, p. 19).

These facts are simply too sparse for the Court to plausibly infer personal involvement on the part

of Hughes. Plaintiff does not describe how or when he communicated or interacted with Director

Hughes. To the extent Hughes’s written denials were grievances responses, the denial or

mishandling of grievances is not sufficient to impose liability. See, e.g., Owens v. Evans, 878 F.3d

559, 563 (7th Cir. 2017). Hughes also cannot be found to have deprived Plaintiff of a constitutional

right simply because Plaintiff wrote her letters. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir.

2009). Accordingly, Plaintiff has failed to state a claim for excessive force against Hughes.

Count 2

The Eighth Amendment prohibits the deliberate indifference to a prisoner’s “serious

medical needs,” as deliberate indifference “constitutes the unnecessary and wanton infliction of

pain forbidden by the Constitution.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828

(7th Cir. 2009) (internal quotations omitted). This indifference includes “intentionally denying or

delaying access to medical care or intentionally interfering with prescribed treatment.” Id. at 829.

To successfully state an Eighth Amendment claim of deliberate indifference, a plaintiff must plead

that the defendant knew of a serious risk of harm and consciously disregarded it. See Giles v.

Godinez, 914 F. 3d 1040, 1049 (7th Cir. 2019).

Based on the same facts that support Count 1, Plaintiff has stated a claim for deliberate

indifference against Brookhart, Brown, Jennings, Henton, Wheeler, Piper, Shelby, Hill, Johnson,

Summers, Martin and John Does 1, 2, 3, 4, 5, 6, 8, and 9. Zentmyer v. Kendall County, Ill., 220

F.3d 805, 812 (7th Cir. 2000) (observing that is nonmedical personnel consciously choose to

disregard a nurse or doctor’s directions in the face of medical risks, they may well exhibit

deliberate indifference). “While this claim appears redundant to [Plaintiff’s] excessive force claim,

the court will allow it at this stage because the deliberate indifference standard differs from the

excessive force standard.” Jeffrey v. Cole, No. 23-cv-241-pp, 2024 WL 1886728, at *3 (7th Cir.

2024) (citing Stewart v. Special Adm’r of Estate of Mesrobian, 559 F. App’x 543, 548-49 (7th Cir.

2014); Farmer v. Brennan, 511 U.S. 825, 847 (1994); Verser v. Smith, Case, No. 2016 WL

3595727, at *3 n.7.

Plaintiff has also stated a claim against Nurse Practitioner Wise, who issued Plaintiff a new

medical permit allowing him to be double cuffed behind his back for non-medical reasons when

he was not a security threat. (Doc. 10, p. 15). See Perez, 792 F. 3d at 777 (7th Cir. 2015)

(“[d]eliberate indifference may occur where a prison official, having knowledge of a significant

risk to inmate health or safety, administers blatantly inappropriate medical treatment”).

Count 2 is dismissed, however, as to John Doe 7. Plaintiff claims that when he was

handcuffed behind his back on January 27, 2023, his shoulder “slipped out of joint” and he

“collapsed to the floor.” (Doc. 10, p. 16). John Doe 7, a nurse, came to the cell, did not exam

Plaintiff, and instructed the correctional officers to lift Plaintiff off the floor causing “painful

relocation” of his right shoulder. (Id. at p. 16-17). While John Doe 7’s decision to have Plaintiff

lifted without examining him might have been medical negligence, the facts do not allow the

inference that John Doe 7 acted with deliberate indifference, which is akin to criminal recklessness,

when responding to Plaintiff. See Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996) (“a defendant’s

inadvertent error, negligence or even ordinary malpractice is insufficient to rise to the level of an

Eighth Amendment constitutional violation”).

Count 2 is also dismissed as to Director Hughes. As discussed above, there are no

allegations suggesting sufficient personal involvement by Hughes in Plaintiff’s handcuffing

incidents, outside the review of grievances or the receipt of two letters, to establish liability under

Section 1983. Therefore, Plaintiff’s allegations fall short of stating a constitutional claim against

Hughes for deliberate indifference.

Count 3

Plaintiff states that he is suing Defendants for conspiracy in violation of “Title 42 of the

United States Code.” (Doc. 10, p. 29). Civil conspiracy claims are cognizable under 42 U.S.C. §

1983. See Lewis v. Washington, 300 F.3d 829, 831 (7th Cir.2002) (recognizing conspiracy claim

under § 1983). Claims of conspiracy, however, necessarily require a certain amount of factual

underpinning to survive preliminary review. See Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir.

2008) (quoting Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). In order to state a civil

conspiracy claim, “the plaintiff must [plead facts sufficient to] show that (1) the individuals

reached an agreement to deprive him of his constitutional rights, and (2) overt acts in furtherance

actually deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015).

In asserting his conspiracy claim, Plaintiff simply restates the legal elements. (See Doc. 10,

p, 28-29). Conclusory allegations such as these are not enough to state a claim, and Plaintiff has

not plausibly alleged facts supporting a conspiracy. See McCauley v. City of Chi., 671 F.3d 611,

616 (7th Cir. 2011) (“legal conclusions and conclusory allegations merely reciting the elements of

the claim are not entitled to [a] presumption of truth”). The facts in the First Amended Complaint

do not plausibly point to an agreement reached between the twenty-four listed defendants to

deprive Plaintiff of his constitutional rights; rather, it appears that Warden Brookhart has changed

a policy regarding medical permits in Administrative Detention, and staff were attempting to

follow that policy. See Twombly, 550 U.S. at 556-557. (“[w]ithout more, parallel conduct does not

suggest conspiracy”). Accordingly, Count 3 is dismissed.

Count 4

Plaintiff asserts that since January 22, 2023, he has been denied “access to the programs,

benefits, and services of the Defendants Illinois Department of Corrections and Lawrence

Correctional Center, including but not limited to: medical services and reasonable accommodation

for the handicapped or disabled…” (Doc. 10, p. 31). He further asserts that he was denied

“reasonable accommodation of bellychain or waist chain restraints with front or side wrist

restraints for his diagnosed bilateral shoulder dislocations and shoulder dysfunction.” (Id. at p. 32).

Under the ADA, “no qualified individual with a disability shall, because of that disability

…be denied the benefits of the services, programs, or activities of a public entity, or be subjected

to discrimination by any such entity.” 42 U.S.C. § 12132 (2006). The RA also prohibits

discrimination against qualified individuals based on a physical or mental disability. See 29 U.S.C.

§§ 794-94e. The analysis under the ADA and RA is the same, except that the RA is not restricted

to public entities and includes as an additional requirement, the receipt of federal funds, which all

states accept for their prisons. Jaros v. Ill. Dep’t of Corr., 684 F.3d at 671 (citing 29 U.S.C. §

705(2)(B)). See also Ruffin v. Rockford Mem'l Hosp., 181 F. App’x 582 n. ** (7th Cir. 2006).

Plaintiff has failed to state a claim under the ADA or RA. First, these statutes are not

violated when a prison official fails to “attend to the medical needs of ... disabled prisoners.” Resel

v. Fox, 26 F. App’x 572, 576–77 (7th Cir. 2001) (quoting Bryant v. Madigan, 84 F.3d 246, 249

(7th Cir. 1996)). “A claim for inadequate medical treatment is improper under” the ADA or RA.

Id. See also Wilson v. Murphy, No. 14-CV-222-BBC, 2016 WL 1248993, at *6 (W.D. Wis. 2016)

(medical treatment decisions are outside the scope of the ADA and RA). Plaintiff’s assertion that

he was not properly treated for medical condition is distinctly different from a claim that he has

been denied access to services or programs because he is disabled.

Second, assuming Plaintiff’s shoulder injury rendered him disabled within the meanings of

the ADA and RA, he has failed to allege any program or activity to which he was denied access

because of his disability. Accordingly, Count 4 is dismissed.

PENDING MOTION

Plaintiff’s motion asking the Court to deem the Complaint filed as of June 26, 2025, in

accordance with the prison mailbox rule is DENIED. (Doc. 9). The timeliness of Plaintiff’s

Complaint or individual claims is not yet in issue. Plaintiff may renew this argument, if necessary,

at a later stage in litigation.

Plaintiff’s filing of proposed jury instructions is also premature, and the Clerk of Court is

DIRECTED to STRIKE the proposed jury instructions at Doc. 11. The parties will be informed

on the deadline for submitting jury instructions, once dispositive motions have been ruled on by

the Court and a final pretrial conference has been scheduled.

DISPOSITION

For the reasons stated above, the First Amended Complaint survives preliminary review

pursuant to Section 1915A. The Clerk of Court is DIRECTED to ADD Summers as a defendant

in accordance with footnote 1. COUNT 1 shall proceed against Brookhart, Brown, Jennings,

Henton, Wheeler, Piper, Shelby, Hill, Martin, Summers, Johnson, and John Does 1, 2, 3, 4, 5, 6,

8, and 9, and is DISMISSED without prejudice against Hughes. COUNT 2 shall proceed against

Brookhart, Brown, Jennings, Henton, Wheeler, Piper, Shelby, Hill, Martin, Summers, Johnson,

Wise, and John Does 1, 2, 3, 4, 5, 6, 8, and 9, and is DISMISSED without prejudice against

Hughes and John Doe 7. COUNTS 3 and 4 are DISMISSED without prejudice. Because there

are no surviving claims against Hughes, John Doe 7, IDOC, and Lawrence Correctional Center,

the Clerk of Court shall TERMINATE them as defendants on the docket.

The Clerk of Court shall prepare for Brookhart, Brown, Jennings, Henton, Wheeler, Piper,

Shelby, Hill, Martin, Summers, Johnson, Wise, and John Does 1, 2, 3, 4, 5, 6, 8, and 9 (once

identified), the following: (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 First Amended 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 the Defendant, and the

Court will require the Defendant to pay the full costs of formal service, to the extent authorized by

the Federal Rules of Civil Procedure.

If a Defendant cannot 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, his 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.

Because this suit includes allegations regarding physical injury and medical care, the Clerk

of Court is DIRECTED to enter the standard qualified protective order pursuant to the Health

Insurance Portability and Accountability Act.

Pursuant to Administrative Order No. 244, Defendants need only to respond to the

issues stated in this Merit Review Order.

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 21, 2026

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District 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 the complaint. It will likely take at least 60 days from

the date of this Order to receive the defendants’ Answers, but it is entirely possible that it will take

90 days or more. When all of 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 otherwise directed by the Court.