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Phelps v. Phillips

United States District Court, S.D. Illinois

September 10, 2014

KEVIN PHELPS, # K-78191, Plaintiff,
v.
C/O PHILLIPS, WARDEN GAETZ, and S. A. GODINEZ, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

Plaintiff Kevin Phelps, an inmate who is currently incarcerated at Lawrence Correctional Center, brings this action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. based on an incident that occurred while he was incarcerated at Pinckneyville Correctional Center. (Doc. 1). Plaintiff is paraplegic and confined to a wheelchair. Plaintiff claims that Defendants failed to protect him against an attack by another inmate, despite prior knowledge that an assault was likely. Plaintiff seeks monetary damages from Defendants.

Merits Review Under 28 U.S.C. § 1915A

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

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). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. 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). After reviewing the allegations in the complaint under this standard, the Court finds that the complaint survives threshold review.

The Complaint

Plaintiff is paraplegic and confined to a wheelchair. (Doc. 1, p. 5). At the time of the incident giving rise to this action, Plaintiff was incarcerated at Pinckneyville in a cell that he claims was designed "for two A.D.A. inmates" but housed four inmates: two "A.D.A. inmates" and two inmates with no apparent disabilities. Id.

On July 6, 2013, Plaintiff was, in his words, "assaulted" by one of his non-disabled cellmates. (Doc. 1, p. 5). Plaintiff pushed the emergency call button to request help. Id. Ten minutes later, at 10:23 p.m., Defendant C/O Phillips came to Plaintiff's cell. Plaintiff told Defendant Phillips that his cellmate was threatening to beat him up; the cellmate who had threatened Plaintiff also told Defendant Phillips to get Plaintiff out of the cell or he would do something to him because Plaintiff was a snitch. Id. Plaintiff asked Defendant Phillips if he could call a lieutenant, but Phillips refused stating it was too late to call anyone because they were all getting ready to go home. Id. at 5-6. Plaintiff responded that he feared for his safety. Phillips replied, "You're a big boy, you can handle the ass-kicking." Id. at 6. Plaintiff asserts that he weighs only about 125 pounds while the inmate who assaulted him weighed 280 pounds or more. Id. The cellmate who had threatened Plaintiff asked Phillips if he was going to move him or Plaintiff out of the cell. Phillips then stated, "I ain't moving nobody, if you going to do something, do it." Id. The cellmate told Phillips that he was going to beat Plaintiff's ass; Phillips responded, "I've been standing here for about 15 minutes and you ain't did shit." Id. The cellmate then turned around and punched Plaintiff in the side of the head and "dumped" Plaintiff out of the wheelchair. The cellmate then proceeded to kick Plaintiff in the back, ribs, head, and arms all while Defendant Phillips stood watching. Id. After about four minutes, two more correctional officers came in and pulled the cellmate off Plaintiff and helped Plaintiff back into his wheelchair. Id. at 7. Afterwards, Plaintiff alleges that Defendant Phillips laughed and said, "He really gave you a beat down." Id. The complaint does not mention what, if any, injuries Plaintiff received or if he required medical treatment.[1] Id.

The complaint also vaguely asserts that Plaintiff's rights under the ADA were violated as a result of Plaintiff being housed with non-disabled inmates. Id. at 5. Plaintiff alleges that he feared for his safety and had filed a number of grievances to this effect prior to the attack on July 6, 2013. Id. The body of the complaint itself does not state any other facts related to an ADA claim; however, attached to the complaint are five grievances Plaintiff filed over the course of two years regarding cell conditions that he claimed violated his rights under the ADA. Id. at 12-22. For example, Plaintiff grieved that his cell was designed to house two "ADA-inmates, " but instead housed four inmates, which made it very difficult for him to maneuver around in his wheelchair. Id. He further complained that housing disabled and non-disabled inmates together puts disabled inmates at risk because they are unable to adequately defend themselves in the case of an attack. Id. In addition, he asserted that he lacked certain equipment and the cell was not designed to accommodate his disability. Id. The first grievance, filed July 16, 2011, was denied as untimely. Id. at 12. In response to a subsequent grievance, the counselor's response was: "Past 60 day timeframe allowed per DR 504. I/M has been housed with 3 other I/M's since 5/6/11." Id. at 16. Subsequent grievances were denied on the grounds that they were duplicates.

Since the incident on July 6, 2013, Plaintiff has been transferred to Lawrence Correctional Center. Id. at 1. Plaintiff asserts no complaints regarding the condition of his current housing arrangement. In his prayer for relief, Plaintiff seeks monetary damages. Id. at 8.

Discussion

Based on the allegations in the complaint, the Court finds it convenient to divide this pro se action into two counts. 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. The designation of these counts does not constitute an opinion as to their merit.

Count 1: Eighth Amendment failure to protect claim
Count 2: Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. , and/or Rehabilitation Act, ...

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