The opinion of the court was delivered by: DAVID HERNDON, District Judge
Plaintiff, an inmate currently in the Lawrence Correctional
Center, brings this action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was
granted leave to proceed in forma pauperis, and he has tendered
his initial partial filing fee as ordered.
In 1999, Plaintiff was shot several times in the back by
sheriff's deputies in Kane County, Illinois. Due to the injuries
sustained in this incident, Plaintiff was rendered quadriplegic
and is permanently confined to a wheelchair. Virtually all of the claims
asserted in this action involve the medical treatment, or lack
thereof, provided to him to treat his condition. In his original
complaint, Plaintiff sets forth 13 separate claims, but the
numbering is confusing: after setting forth 42 enumerated
paragraphs of general allegations, Plaintiff begins with "Count
12" on a new page "1," which is followed on page 17 by "Count 2."
A logical progression follows from here, so the Court can only
assume that Count "12" is a typographical error, and that
Plaintiff really intended to begin with "Count 1." The complaint
then jumps from Count 11 straight to Count 16.
However, Plaintiff later filed an amended complaint with
respect to Counts 11, 12, 13, 14, 15 (Doc. 9). In the original
complaint, Count 11 skips from paragraph 166 to paragraph 201;
the amended complaint corrects this omission. In the amended
complaint, Count 11 includes paragraphs 139-183; Count 12 is
paragraph 184, Count 13 is paragraph 185; Count 14 includes
paragraphs 1861-95; Count 15 includes paragraphs 196-206.
Therefore, the Court and all parties will refer to the original
complaint (Doc. 1) for Counts 1-10 and Count 16-17, and to the
amended complaint (Doc. 9) for Counts 11-15. The confusion over
the numbering now resolved, the Court will summarize all 17
counts for clarity:
COUNT 1: Against Defendants Winnebago County Jail,
Meyers, and Arbisi for deliberate indifference to his
serious medical needs, in violation of his rights
under the Eighth Amendment (Doc. 1 designated
"Count 12" on page "11-7" ¶¶ 1-28).
COUNT 2: Against Defendants Winnebago County Jail,
Meyers, and Arbisi for violations of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 (Doc. 1,
COUNT 3: Against Defendants Winnebago County Jail,
Decker, and Arbisi for deliberate indifference to his
serious medical needs, in violation of his rights
under the Eighth Amendment (Doc. 1, ¶¶ 31-40).
COUNT 4: Against Defendants Decker, Arbisi, and
Meyer for negligence (Doc. 1, ¶ 41). COUNT 5: Against Defendants Garcia, Murry, Pierce,
McKinney, Mitchell, Snyder, Wcyiskalla, and John Doe
for deliberate indifference to his serious medical
needs, in violation of his rights under the Eighth
Amendment while he was at Pinckneyville Correctional
Center (Doc. 1, ¶¶ 42-92).
COUNT 6: Against Defendants Garcia and Doe for
medical malpractice under the laws of the state of
Illinois (Doc. 1, ¶ 93).
COUNT 7: Against Defendants Pierce, Garcia,
Mitchell, McKinney, Wcyiskalla, Snyder, Murry, and
Doe for reckless negligence under the laws of the
state of Illinois (Doc. 1, ¶ 94).
COUNT 8: Against Defendants Illinois Department of
Corrections, Snyder, Mitchell, McKinney, Pierce, and
Garcia for violations of the Rehabilitation Act of
1973, 29 U.S.C. § 794 et seq. (Doc. 1, ¶¶ 95-99).
COUNT 9: Against Defendants McKinney, Garcia,
Williams, and Wcyiskalla, for retaliation and
harassment (Doc. 1, ¶¶ 100-121).
COUNT 10: Against Defendants McKinney, Pierce,
Williams, Snyder, and Davenport for "civil
conspiracy" (Doc. 1, ¶¶ 122-138).
COUNT 11: Against Defendants Feinerman, Gross,
Cowen, Walls, Grubman, Snyder, Frentzel, and
Dougherty for deliberate indifference to his serious
medical needs, in violation of his rights under the
Eighth Amendment (Doc. 9, ¶¶ 139-183).
COUNT 12: Against Defendants Feinerman and
Dougherty for medical malpractice under the laws of
the state of Illinois (Doc 9, ¶ 184).
COUNT 13: Against Defendants Feinerman, Dougherty,
Walls, Cowen, Frentzel, Grubman, Gross, and Snyder
for reckless negligence under the laws of the state
of Illinois (Doc 9, ¶ 185).
COUNT 14: Against Defendants Gross, Snyder, Walls,
Feinerman, Grubman, Cowen, and Frentzel for civil
conspiracy to deny Plaintiff's grievances (Doc 9, ¶
COUNT 15: Against Defendants Feinerman, Frentzel,
Cowen, Grubman, Gross, and Snyder for racial
discrimination, in violation of his rights under the
Civil Rights Act of 1964 and the Fourteenth Amendment
(Doc 9, ¶¶ 196-206).
COUNT 16: Against Defendants Snyder, Cowen, Walls,
Feinerman, Grubman, Frentzel, Knop, and Rea for
violations of the Rehabilitation Act of 1973, 29
U.S.C. § 794 et seq. (Doc. 1, ¶¶ 207-215).
COUNT 17: Against Defendants Rea, West, Cowen,
Walls for retaliation and harassment (Doc. 1, ¶¶
This case is now before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915A, which provides, in
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks
an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319
, 325 (1989). After evaluating Plaintiff's
claims individually, the Court finds it appropriate to exercise
its authority under Section 1915A to dismiss those claims that
are frivolous before allowing Plaintiff to proceed with his
remaining claims. See also House v. Belford, 956 F.2d 711
718-19 (7th Cir. 1992).
The Supreme Court has recognized that "deliberate indifference
to serious medical needs of prisoners" may constitute cruel and
unusual punishment under the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan,
511 U.S. 825 (1994). This encompasses a broader range of conduct than
intentional denial of necessary medical treatment, but it stops
short of "negligen[ce] in diagnosing or treating a medical
condition." Estelle, 429 U.S. at 106. See also Jones v.
Simek, 193 F.3d 485, 489 (7th Cir. 1999); Steele v. Choi,
82 F.3d 175, 178 (7th Cir. 1996), cert. denied, 519 U.S. 897 (1996).
A prisoner raising an Eighth Amendment claim against
a prison official therefore must satisfy two
requirements. The first one is an objective standard:
"[T]he deprivation alleged must be, objectively,
`sufficiently serious.'" Farmer, 511 U.S. at ___,
114 S.Ct. at 1977. As the Court explained in
Farmer, "a prison official's act or omission must
result in the denial of the minimal civilized measure
of life's necessities." Id. The second requirement
is a subjective one: "[A] prison official must have a
`sufficiently culpable state of mind,'" one that the
Court has defined as "deliberate indifference." Id;
see Hudson v. McMillian, 503 U.S. 1, 5,
112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992) ("[T]he appropriate
inquiry when an inmate alleges that prison officials
failed to attend to serious medical needs is whether
the officials exhibited `deliberate indifference.'");
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285,
291, 50 L.Ed.2d 251 (1976) ("[D]eliberate
indifference to serious medical needs of prisoners
constitutes the `unnecessary and wanton infliction of
Vance v. Peters, 97 F.3d 987, 991-992 (7th Cir. 1996),
cert. denied, 520 U.S. 1230 (1997). However, the Supreme Court
stressed that this test is not an insurmountable hurdle for
inmates raising Eighth Amendment claims:
[A]n Eighth Amendment claimant need not show that a
prison official acted or failed to act believing that
harm actually would befall an inmate; it is enough
that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm. . . .
Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including
inference from circumstantial evidence, . . . and a
factfinder may conclude that a prison official knew
of a substantial risk from the very fact that the
risk was obvious.
Farmer, 511 U.S. at 842.
The Seventh Circuit's decisions following this standard for
deliberate indifference in the denial or delay of medical care
require evidence of a defendant's actual knowledge of, or
reckless disregard for, a substantial risk of harm. The Circuit
also recognizes that a defendant's inadvertent error, negligence
or even ordinary malpractice is insufficient to rise to the level
of an Eighth Amendment constitutional violation.
Neglect of a prisoner's health becomes a violation of the
Eighth Amendment only if the prison official named as defendant is deliberately
indifferent to the prisoner's health that is, only if he `knows
of and disregards an excessive risk to inmate health or safety.'
Williams v. O'Leary, 55 F.3d 320, 324 (7th Cir.), cert.
denied, 516 U.S. 993 (1995); see also Steele, 82 F.3d at 179
(concluding there was insufficient evidence of doctor's knowledge
of serious medical risk or of his deliberate indifference to that
risk; emphasizing that even malpractice is not enough proof under
Farmer); Miller v. Neathery, 52 F.3d 634, 638-39 (7th
Cir. 1995) (applying Farmer mandate in jury instruction).
However, a plaintiff inmate need not prove that a defendant
intended the harm that ultimately transpired or believed the harm
would occur. Haley v. Gross, 86 F.3d 630, 641 (7th Cir.
These claims were dismissed as time-barred by the Honorable
Philip G. Reinhard of the Northern District of Illinois, and all
Defendants associated with these claims were already dismissed
from this action (see Doc. 3). Therefore, the Court and the
parties need not address these claims further.
Denial of Access to Physical Therapy (¶¶ 42-53)
Plaintiff states that upon his arrival at Pinckneyville
Correctional Center ("Pinckneyville") in April 2000, he was
denied physical therapy by Defendant Garcia because Pinckneyville
did not offer physical therapy. On August 8, 2000, Plaintiff was
seen by a physical therapist and began to receive physical
therapy twice weekly. Plaintiff states that between April and
August 8, 2000, he suffered from pain, muscle spasms, joint
pains, "muscle skeletal" pains, and other complications relating
to his paralysis, as a result of denial of physical and
occupational therapy. Plaintiff states that he filed grievances requesting proper treatment but that
Defendants Pierce, McKinney, Mitchell, Murry and Garcia did not
attempt to provide him with the requested services.
Denial of physical therapy may implicate a serious medical
need. See Maclin v. Freake, 650 F.2d 885, 889 (7th Cir.
1981) (denial of physical therapy to paraplegic prisoner for
eleven months sufficient to state a claim for purposes of
surviving review pursuant to 28 U.S.C. § 1915); cf. Crowder v.
True, 74 F.3d 812, 815 (7th Cir. 1996) (allegations inmate
was denied his wheelchair because it did not fit through the cell
doors and denied physical therapy sessions, without scienter, not
sufficient to raise a fair inference of deliberate indifference
to his serious medical needs). Based on these allegations, and
the standard stated above for medical claims, Plaintiff's claim
that he was denied physical therapy in violation of the Eighth
Amendment may not be dismissed at this point in the litigation.
See 28 U.S.C. § 1915A.
Denial of Transfer to a Facility Offering Physical Therapy
Plaintiff states that he made numerous requests to
Pinckneyville administrators for a transfer to Dixon Correction
Center, a facility providing physical therapy and services for
wheelchair-bound inmates. The requests were denied. Plaintiff
also states that Defendants Snyder, Pierce, McKinney, Mitchell,
and Garcia were all aware of Plaintiff's needs and desire to be
transferred, but none took any action to do so.
"A prisoner has no due process right to be housed in any
particular facility." Whitford v. Boglino, 63 F.3d 527, 532
(7th Cir. 1995) (citing Meacham v. Fano, 427 U.S. 215,
223-225 (1976)). As such, Plaintiff fails to state a claim
against these defendants; the claim is DISMISSED with prejudice
from the action.
Denial of Prescribed Medication (¶¶ 55-65) Plaintiff states that prior to his transfer to Pinckneyville,
he had been taking a medication called Baclofen for his muscle
spasms and pain. Plaintiff states that Dr. Garcia, who examined
him on April 7, 2000, did not give him Baclofen until April 25,
2000, causing the Plaintiff to suffer muscle spasms and pain for
18 days. On June 26, 2000, Plaintiff saw Dr. Garcia and requested
that his Baclofen prescription be renewed. Dr. Garcia refused to
renew it, and as a result, Plaintiff suffered "more than a month
long of continuous and excruciation pain and suffering caused by
violent muscle spasms." The pain and spasms interfered with his
sleep, his ability to read, exacerbated his joint pain, caused
hand contraction and frequent shaking and trembling, deterred him
from doing his flexibility exercises, and impeded his ability to
perform the activities of daily living. Plaintiff made numerous
requests for Baclofen, but they were denied. Plaintiff states
that he was again given the medication on August 4, 2000.
Plaintiff also states that after a fall from his wheelchair, he
injured his knee and was unable to get out of bed. Defendant
Wcyiskalla refused to help him to his wheelchair to get his
medication. As a result of missing his medication for one day,
and according to Pinckneyville policy, the medication was
discontinued. Plaintiff did not receive Baclofen between October
16, 2000, and November 10, 2000. As a result, plaintiff suffered
from pain and muscle spasms.
Based on the standards noted above, this claim cannot be
dismissed at this point in the litigation. See
28 U.S.C. § 1915A.
Delayed and Denied Access to Medical Prosthetics (¶¶ 66-77)
Plaintiff states that on April 18, 2000, Defendant Garcia
determined that a prosthetic device used to straighten
Plaintiff's right hand and wrist was worn down and cracked.
Garcia recommended that Plaintiff see a prosthetic specialist to
fix the old brace or order a new one. Garcia never followed up on this recommendation. On September 12, 2000,
physical therapist Dan Laver attempted to repair the worn and
cracked brace with medical tape and "unstable sticks." On
September 28, 2000, the device collapsed completely. As a result,
Plaintiff states that between April 18 and September 28, 2000, he
suffered unnecessary pain and ...