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Glick v. Baskins

United States District Court, Seventh Circuit

August 29, 2013

DENNIS P. GLICK, Plaintiff,
v.
KIM BASKINS, BRAD THOMAS, ANTHONY WILLS, NATHAN PITTS, TINA MORGANTHALER, and BRAD COLERMAN, Defendants.

ORDER

DONALD G. WILKERSON, Magistrate Judge.

Now pending before the Court are the Motion to Dismiss for Failure to State a Claim filed by Defendant, Kim Baskins, on March 8, 2013 (Doc. 199), the Motion for Summary Judgment filed by Defendant Baskins on June 26, 2013 (Doc. 218), and the Motion for Summary Judgment filed by Defendants Brad Colerman, Tina Morganthaler, Nathan Pitts, Brad Thomas, and Anthony Wills, on July 22, 2013 (Doc. 219). Plaintiff has filed a response to the Motion to Dismiss (Doc. 207) and the first Motion for Summary Judgment (Doc. 222).

For the reasons set forth below, the Motion to Dismiss is GRANTED; the Motion for Summary Judgment (Doc. 218) is DENIED AS MOOT; and the Motion for Summary Judgment (Doc. 219) is GRANTED IN PART.

INTRODUCTION

Plaintiff filed a Complaint on July 27, 2006, pursuant to 42 U.S.C. ยง 1983, alleging a violation of his Eighth Amendment rights under the United States Constitution (Doc. 1). Plaintiff initially sued a number of Defendants; however, only six Defendants remain, Kim Baskins, Brad Thomas, Anthony Wills, Nathan Pitts, Tina Morganthaler, and Brad Colerman. As to each of these Defendants, only one claim remains: that they failed to protect him from his cellmate, Scott Drazen, who injured him on February 16, 2006.

PROCEDURAL HISTORY

Initially, Plaintiff claimed that prison officials were deliberately indifferent to (1) his mental health needs, (2) the substantial risk of harm from his cellmate's smoking, and (3) the substantial risk of harm posed by the cellmate who threatened to, and did, attack him. He also claimed that officials (4) retaliated against him for filing grievances when they transferred him out of protective custody at Pontiac Correctional Center and then to Statesville Correctional Center and (5) violated Title II of the ADA by denying him access to mental health services (Doc. 1). In its threshold review on August 8, 2007, the District Court read Plaintiff's complaint as making only three claims-deliberate indifference to mental health needs, retaliation, and violation of the ADA - and dismissed these claims without prejudice. In this Order, the Clerk of Court was directed to "close the case on the Court's docket" (Doc. 12, p. 7). Plaintiff appealed the District Court's Order to the Seventh Circuit Court of Appeals (Doc. 14).

On April 28, 2008, the Seventh Circuit held that Plaintiff alleged sufficient information in his complaint to set forth the following claims: (1) deliberate indifference to mental health needs in violation of the Eighth Amendment against Defendants Ford and Walker; (2) deliberate indifference to a risk of both past and future harm from exposure to cigarette smoke in violation of the Eighth Amendment against Defendants Alms, Murray, Walker, and Ford; (3) deliberate indifference to risk of attack by another inmate against a John Doe Defendant; and (4) retaliatory transfer for filing grievances in violation of the First Amendment against Defendants Ford, Murray, Alms, Uchtman, and Walker. (Doc. 38). The Seventh Circuit affirmed the District Court's dismissal of Plaintiff's ADA Claims. (Doc. 38). In its screening order entered on June 9, 2008, the District Court ordered service on the named Defendants, but not the John Doe Defendant, until such time as Plaintiff identified him for service of process (Doc. 41).

A Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies was filed by Defendants Walker, Uchtman, Ford, Murray, and Alms on October 10, 2008 (Doc. 58) and by Defendant Grubman on December 12, 2008 (Doc. 83). The District Court held an evidentiary hearing on the issue of exhaustion and entered an Order granting the Motions for Summary Judgment on January 13, 2009 (Doc. 92). After a judgment was entered, Plaintiff again appealed to the Seventh Circuit Court of Appeals (Doc. 99).

On August 4, 2010, the Seventh Circuit held that the Plaintiff sufficiently exhausted his administrative remedies as to certain claims. (Doc. 114). The Seventh Circuit held that Plaintiff properly exhausted his administrative remedies as to the first, second, and third claim listed above, but not with respect to the fourth. On September 28, 2012 (some two years later), Plaintiff filed a First Amended Complaint adding named defendants to replace the John Doe Defendant (Doc. 164). As a result of a March 26, 2013 Order, Defendant Walker was dismissed from this suit (Doc. 203). Another Order dated March 26, 2013 also granted summary judgment for remaining Defendants with respect to claims 1 and 2 (Doc. 204). The only claim that remains, then, is claim 3: deliberate indifference to a risk of attack by another inmate against Defendants Kim Baskins, Brad Thomas, Anthony Wills, Nathan Pitts, Tina Morganthaler, and Brad Colerman.

BACKGROUND

When Plaintiff filed his initial complaint on July 27, 2006, claim 3 was directed against a John Doe Defendant. In a June 9, 2008 Order, Plaintiff was informed that service would not be made on the John Doe Defendant until such time as Plaintiff identified him in a "properly filed amended complaint" (Doc. 41). After an attorney was appointed to represent Plaintiff, an Amended Scheduling Order directed Plaintiff to file an Amended Complaint by November 30, 2010 (Doc. 124). No amended complaint was filed by the deadline. As a result, an Order to Show Cause was entered on December 3, 2010 directing Plaintiff to show cause why the claim against John Doe should not be dismissed for the failure to prosecute (Doc. 126). No response having been filed, Defendant John Doe (along with claim 3) was dismissed without prejudice on January 4, 2011 (Doc. 127). After a second attorney was appointed to represent Plaintiff (Doc. 136), Plaintiff filed a Motion to Amend the Complaint on June 25, 2012 (Doc. 156).

In that Motion, Plaintiff's attorney indicates that Plaintiff had drafted an amended complaint on December 7, 2008, that he had submitted to the Court, naming Defendants Thomas, Wills, Pitts, Moragnthaler, Colerman, and Baskin, as the defendants answerable to claim 3. The Motion was granted on September 27, 2012 (Doc. 163) and a First Amended Complaint, naming Defendants as to claim 3, was filed on September 28, 2012 (Doc. 164).[1]

Defendant Baskins' Motion to Dismiss argues a statute of limitations defense as to claim 3 (Doc. 199). This argument is also made in Defendant Colerman's, Morganthaler's, Pitts', Thomas', ...


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