December 6, 2013
STEPHEN COUCH, #B-12125, Plaintiff,
SALVADOR A. GODINEZ, RICHARD HARRINGTON, LOUIS SHICKER, DR. JOHN COE, and JULIE HAMOS, Defendants.
J. PHIL GILBERT,
Plaintiff, currently incarcerated at Menard Correctional Center
("Menard"), has brought this pro se action to seek redress for violations
of his constitutional rights ( see 42 U.S.C. § 1983) as well as his rights
under state law. He is serving sentences of 26, 20, and five years on three drug
convictions. This case was originally filed by Plaintiff in the Circuit Court of
the Twentieth Judicial District of Illinois, Randolph County, Case No. 13-MR-81,
on August 9, 2013 (Doc. 11-2, pp. 1, 20). Defendant Coe removed the case to this
Court on October 25, 2013, after he was served with summons (Doc. 11).
Defendant Coe has paid the filing fee for this matter (Doc. 2).
Because Plaintiff is a prisoner and is seeking relief from several
state officials, the Court is required to conduct a preliminary review of his
complaint pursuant to 28 U.S.C. § 1915A, which provides:
(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 governmental entity.
Grounds for Dismissal.- On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on which relief may be
(2) seeks monetary relief from a
defendant who is immune from such relief.
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). An action fails
to state a claim upon which relief can be granted if it does not plead "enough
facts to state a claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint
is plausible on its face "when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the Court is obligated to accept factual allegations as true, see
Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations
may be so sketchy or implausible that they fail to provide sufficient notice of
a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Additionally, Courts "should not accept as adequate abstract recitations of the
elements of a cause of action or conclusory legal statements." Id. At the
same time, however, the factual allegations of a pro se complaint are to be
liberally construed. See Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009).
Plaintiff's complaint describes events and claims beginning with his
incarceration in Lawrence Correctional Center ("Lawrence") in January 2013, and
continuing through his subsequent transfers to Illinois River Correctional
Center ("Illinois River"), back to Lawrence, and then to Menard. At some time
prior to January 2013, Plaintiff suffered a knee injury and had been given
medical permits to be housed on a low gallery in a low bunk, as well as to have
a knee brace and Ace wrap. However, when he was transferred to Lawrence on
January 9, his medical permits were not re-issued and his medical devices were
taken away (Doc. 11-2, p. 2). The complaint does not disclose the names of any
medical staff members who were involved in Plaintiff's treatment, or lack
thereof. He spoke to a mental health counselor (Sandy Buck Taylor), who
documented his concerns but could not help him obtain his medical permits or
supplies. Plaintiff went on a hunger strike to protest the lack of attention to
his medical needs.
Plaintiff was transferred to Illinois River on January 23, 2013 (Doc.
11-2, p. 3). Again, he had no medical permits nor support devices for the
injured right knee. He sought help from medical staff (again unnamed) without
success. On January 28, 2013, his knee gave out and he fell, dislocating his
right shoulder. Correctional Officer Dorthy (who is not a named Defendant)
refused to summon emergency medical treatment for Plaintiff. Id. His
other requests for help were denied.
On February 13, 2013, Plaintiff was transferred back to Lawrence (Doc.
11-2, p. 3). He begged for medical attention without success. On February 24,
2013, Lieutenant Thomas Stuck told Plaintiff he would be moved from segregation
back into general population. Plaintiff refused to go based on his medical
concerns, and was issued a disciplinary ticket. This kept him in segregation for
30 more days (Doc. 11-2, p. 4). Plaintiff then began another hunger strike in an
attempt to obtain medical treatment for his injuries, which were causing him
great pain. He refused food for 30 days, and wrote to "everyone" seeking help.
Eventually, he was taken to an outside hospital for an ultrasound test, 
and on May 10, 2013, he was prescribed pain medication (which was "useless") and
Plaintiff wrote numerous grievances between January and June 2013 to
complain about the lack of medical treatment at Lawrence (Doc. 11-2, p. 5). He
claims that Lawrence employees wrote him many disciplinary tickets in
retaliation for his grievance activity. Ultimately, he was transferred from
Lawrence, a medium security facility, to Menard, which is a maximum security
prison. He alleges that this June 2013 transfer violated his due process rights
as well as Illinois statutory and administrative provisions.
At Menard, Plaintiff was housed for two months in a cell with inmate
Derrick Alexander, who repeatedly battered him and threatened his life if
Plaintiff were to complain to guards (Doc. 11-2, p. 5). Plaintiff made several
complaints, including written request slips and grievances (but does not say to
whom these were directed). However, he was not moved or given any protection. At
Plaintiff's request, other inmates reported Plaintiff's safety concerns to
Lieutenant Randy Hoffman and Sergeant Bohnert. Those individuals refused to help
unless Plaintiff came to them himself, which he apparently did not do because of
his fear they would tell his cellmate (Doc. 11-2, p. 6). Plaintiff asserts that
unnamed "Illinois Department Administrative Staff" purposely placed him in the
cell so that he would be assaulted, because he "report[ed] this type of tactic
being used by Administrative Person[nel]." Id.
Plaintiff's transfer to Menard also interrupted the physical therapy
treatment he had been receiving at Lawrence for his shoulder injury. That
special treatment had been authorized by the Lawrence medical director.
Plaintiff alleges that the transfer was a "delay tactic" to justify the
discontinuation of that therapy (Doc. 11-2, p. 7). Defendant Dr. Louis Shicker
is the "shot caller" for orthopedic health care for each prison, and has allowed
his medical directors to deny Plaintiff's medical permits, which has caused him
continuous injuries, pain, and suffering. Id. Defendant Shicker has
allowed his staff to neglect their duties to provide contracted medical care.
Further, correctional employees have failed to follow health and safety
measures, which have resulted in injuries to Plaintiff from falling down stairs
and lifting/carrying items too heavy for him.
As relief, Plaintiff seeks a transfer to Danville Correctional Center,
orthopedic medical treatment for his knee and shoulder injuries, pain
medication, permanent low gallery/low bunk permits as well as alternative cuff
and knee brace permits, and placement in a single man cell (Doc. 11-2, p. 8). He
also requests monetary damages.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt
threshold review of the complaint. After fully considering the allegations in
Plaintiff's complaint and accompanying documents, the Court concludes that the
complaint, as pled, fails to state a cognizable constitutional claim against any
of the named Defendants. Accordingly, the complaint shall be dismissed, and
Plaintiff shall be given leave to file an amended complaint if he wishes to
further pursue his civil rights claims. If the amended complaint still fails to
state a claim, or if Plaintiff does not submit an amended complaint, Plaintiff's
federal claims shall be subject to dismissal with prejudice, and the case may be
remanded to the state circuit court for resolution of the state law claims. The
amended complaint shall be subject to review pursuant to § 1915A. Plaintiff is
strongly encouraged to use the Court's civil rights complaint form as he
prepares his amended complaint.
The chief problem with the complaint is that, with the exception of
Defendant Shicker, Plaintiff never mentions any of the named Defendants in the
body of the document where he describes his claims. He thus fails to connect any
of them with the alleged denial of medical treatment, failure to protect him
from his cellmate's assaults, or any of the other violations of his rights. The
same is true for Plaintiff's claims under state law. In order to survive § 1915A
review in federal court, it is not sufficient to merely list a Defendant in the
caption of a complaint or, as Plaintiff has done, to file a separate "Petition
of Mandamus" making general claims for relief (Doc. 11-2, pp. 9-10; 14-16).
Plaintiffs are required to associate specific defendants with specific claims so
these defendants are put on notice of the claims brought against them and so
they can properly answer the complaint. "Federal Rule of Civil Procedure 8(a)(2)
requires only a short and plain statement of the claim showing that the pleader
is entitled to relief, ' in order to give the defendant fair notice of what
the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). Thus, where a plaintiff has not included a defendant in his
statement of the claim, the defendant cannot be said to be adequately put on
notice of which claims in the complaint, if any, are directed against him.
Furthermore, merely invoking the name of a potential defendant is not sufficient
to state a claim against that individual. See Collins v. Kibort,
143 F.3d 331, 334 (7th Cir. 1998) ("A plaintiff cannot state a claim against a
defendant by including the defendant's name in the caption.").
Plaintiff's claims of neglect and delay in treating or accommodating
his knee and shoulder injuries indicate that some prison official(s) may have
been deliberately indifferent to his serious medical needs. Likewise, the
allegation that Plaintiff was not given protection from his dangerous cellmate
may present a viable Eighth Amendment claim. However, these claims cannot
proceed unless Plaintiff identifies, as best he can, the individuals to whom he
directed his requests for medical permits, emergency treatment, protection from
the cellmate, and the like. He must also provide sufficient factual information
( e.g., who, what, when, where) for the Court to evaluate whether the
defendants may have violated Plaintiff's constitutional rights, and for those
defendants to answer the amended complaint if it survives review under 28 U.S.C.
Plaintiff is advised that in a civil rights action under 28 U.S.C. §
1983, the doctrine of respondeat superior does not apply. Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). A
defendant may only be held liable if s/he was "personally responsible for the
deprivation of a constitutional right." Id. A supervisor is responsible
only for his/her own misconduct, and supervisory authority alone does not create
liability for the improper actions of subordinate employees.
On November 14, 2013, Defendant Coe filed a motion for a HIPAA
Qualified Protective Order (Doc. 12). This motion shall be held in abeyance
pending the receipt and review of Plaintiff's anticipated amended complaint.
Defendant Coe filed a motion to dismiss for failure to state a claim
(Doc. 13) on November 25, 2013. In light of the fact that the instant order
shall dismiss the complaint and allow Plaintiff to re-plead, this motion (Doc.
13) is DENIED AS MOOT.
Likewise, the motion by Defendants Godinez and Harrington for an
extension of time to December 26, 2013, to file a response (Doc. 15) is DENIED
AS MOOT. No response shall be required until after Plaintiff files his First
Amended Complaint, which must undergo preliminary review by the Court pursuant
to § 1915A.
IT IS HEREBY ORDERED that the complaint (Doc. 11-2, pp. 1-16) is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that, should he wish to proceed with this case,
Plaintiff shall file his First Amended Complaint, stating the relevant facts in
support of his claims, and naming the individual Defendants directly responsible
for the alleged constitutional deprivations and violations of state law, within
35 days of the entry of this order (on or before January 10, 2014). An amended
complaint supersedes and replaces the original complaint, rendering the original
complaint void. See Flannery v. Recording Indus. Ass'n of Am.,
354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal
amendments to the original complaint. Thus, the First Amended Complaint must
stand on its own, without reference to any other pleading. Should the First
Amended Complaint not conform to these requirements, it shall be stricken.
Plaintiff must also re-file any exhibits he wishes the Court to consider along
with the First Amended Complaint. Failure to file an amended complaint shall
result in the dismissal of Plaintiff's federal civil rights claims with
prejudice, and a remand of the matter to state court.
No service shall be ordered on any Defendant who has not already been
served, until after the Court completes its § 1915A review of the First Amended
In order to assist Plaintiff in preparing his amended complaint, the
Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form.
Plaintiff shall serve upon Defendants (or upon defense counsel for
those Defendants who are represented), a copy of his First Amended Complaint, as
well as each pleading or other document submitted for consideration by the
Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date on which a true and correct copy of the document was served on
Defendants or counsel. Any paper received by a district judge or magistrate
judge that has not been filed with the Clerk or that fails to include a
certificate of service will be disregarded by the Court.
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 7 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.