Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McGowan v. Shearing

United States District Court, S.D. Illinois

October 31, 2014

MICHAEL McGOWAN, Plaintiff,
v.
R. SHEARING and ILLINOIS DEPARTMENT OF CORRECTIONS, Defendants.

ORDER

DONALD G. WILKERSON, Magistrate Judge.

Now pending before the Court are the Motion to Amend the Complaint filed by Plaintiff on July 31, 2014 (Doc. 51), the Motion for Extension of Time filed by Defendants on September 10, 2014 (Doc. 58), the Motion for Reconsideration filed by Plaintiff on September 24, 2014 (Doc. 59), the Motion for Leave to File filed by Plaintiff on October 6, 2014 (Doc. 61), the Motion to Compel filed by Plaintiff on October 6, 2014 (Doc. 62), and the Motion to Inspect filed by Plaintiff on October 9, 2014 (Doc. 64). For the reasons set forth below, the Motion to Amend the Complaint is GRANTED IN PART (Doc. 51), the Motion for Extension of Time is GRANTED (Doc. 58), the Motion for Reconsideration is DENIED (Doc. 59), the Motion for Leave to File is DENIED WITHOUT PREJUDICE (Doc. 61), the Motion to Compel is GRANTED IN PART (Doc. 62), and the Motion to Inspect is DENIED WITHOUT PREJUDICE (Doc. 64).

Motion to Amend the Complaint

Rule 15(a)(2) provides that a pleading may be amended by leave of court and that "the court should give leave when justice so requires." Leave may be denied if "the moving party unjustifiably delayed in presenting its motion to the court, repeatedly failed to cure deficiencies, or if the amendment would be futile." Gandhi v. Sitara Capital Management, LLC., 721 F.3d 865, 868-869 (7th Cir. 2013).

On January 28, 2014, Plaintiff was permitted to proceed on two Eighth Amendment claims of deliberate indifference to a serious medical need against Defendant Shearing, who is a doctor employed at the Menard Correctional Center ("Menard") where Plaintiff is housed (Counts 1 and 3), an Americans with Disabilities Act/Rehabilitation Act claim against the Illinois Department of Corrections ("IDOC") (Count 2), and a retaliation claim against Defendant Shearing (Count 4). Plaintiff's claims stem from his cell placement in July 2012. He alleges that he was effectively placed in segregation due to his disability (Plaintiff has a prosthetic leg) and was not given appropriate medical care before and after he was fitted with a new prosthesis. He further alleges that he filed multiple grievances regarding his medical care and cell placement and that he was retaliated against for complaining about the conditions of his confinement and the care he received.

Plaintiff now seeks to amend his Complaint in order to add new Defendants, Kimberly Butler (Warden), Angela Crain (Director of Nursing), and P. Marcin Kowska (Counselor), and to reassert claims against dismissed Defendant Richard Harrington (Warden) and Wexford Medical Services[1] (who were dismissed without prejudice). Plaintiff also repeats the claims that he has been allowed to proceed on against Defendant Shearing (Doctor) and the IDOC. In general, the Amended Complaint asserts the same factual scenario made in the original complaint. Plaintiff alleges that his medical needs were not met with respect to an old and new prosthetic leg beginning in July 2012 and continuing through September 2012. He further complains that his jail cell is inappropriate for a handicapped individual. As to each of the medical Defendants (Crain and Shearing), Plaintiff alleges that they failed to provide the proper treatment, failed to supervise others in providing proper treatment, failed to create and institute appropriate policies with respect to disabled inmates, and failed to address his concerns. As to the Wardens (Butler and Harrington), Plaintiff alleges that they knew of his medical and housing conditions but failed to intervene and that they failed to implement appropriate polices. He makes the same policy arguments with respect to Wexford and the IDOC. Finally, he alleges that his counselor, Kowska, knew about his complaints but failed to do anything in response. The proposed amended complaint is 34 pages long and comes with a number of attachments and exhibits including medical records, grievances, affidavits, and treatises.

As noted above, Plaintiff is already proceeding on 4 Counts as identified by the District Court:

Count 1: Medical Director Dr. R. Shearing violated the Eighth Amendment when he left Plaintiff in a cell that was not equipped for his handicap and when he refused to give him an assistive device;
Count 2: The IDOC violated the American with Disabilities Act of 1990, 42 U.S.C.A. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. §§ 794-94e, with respect to the conditions of Plaintiff's cell and the denial of an assistive device;
Count 3: Medical Director Dr. R. Shearing was deliberately indifferent to Plaintiff's serious medical needs relative to his new prosthesis, in violation of the Eighth Amendment; and
Count 4: Medical Director Dr. R. Shearing retaliated against Plaintiff for his attempts to secure medical care and a properly equipped cell, in violation of the First Amendment.

The proposed amended pleading seeks to add the following additional counts:

Count 5: The IDOC, Warden Richard Harrington, Warden Kimberly Butler, Medical Director Dr. Robert Shearing, Director of Nursing Angela Crain, and Counsel D. Marcin Kowska maintain unconstitutional policies and practices of deliberate indifference with respect to appropriate housing, accommodations, medical care and conditions of confinement for handicapped inmates.
Count 6: Wexford Health Sources, Inc. maintains unconstitutional policies and practices of deliberate indifference with respect to the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.