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Brown v. Wexford Health Sources

United States District Court, S.D. Illinois

December 11, 2014

JOHN D. BROWN, # B-34351, Plaintiff,



Plaintiff is a prisoner at Taylorville Correctional Center ("Taylorville"), serving a seven-year sentence for burglary. He brings this pro se civil rights action pursuant to 42 U.S.C. § 1983, raising numerous claims relating to his previous incarceration at Vandalia Correctional Center ("Vandalia").

Plaintiff filed an earlier lawsuit against several Vandalia officials in July 2013, Brown v. Gephart, Case No. 13-cv-659-JPG-PMF.[1] In that case, Plaintiff's retaliation and equal protection claims are still pending against the same Defendant Gephart named in this case. All other claims in that case against all other named defendants were dismissed upon threshold review, with the exception of a claim against unknown mailroom staff. That unrelated claim was severed into a separate case, which Plaintiff then voluntarily dismissed (Case No. 13-cv-795-JPG).

The Complaint

The 41-page complaint (Docs. 1, 1-1) names 12 defendants, and outlines 21 counts. Counts 1-9 allege that various defendants have retaliated against Plaintiff because he filed grievances and the previous lawsuit mentioned above. Counts 10-12 claim that Defendants Kim, Magnus, Dozier, and Cameron were deliberately indifferent to Plaintiff's medical needs on July 3, 2013, when Plaintiff was denied medical treatment because he would not sign a money voucher form to be charged a co-payment for the medical visit. Count 13 asserts state law claims of medical malpractice and negligence based on the July 3, 2013, incident (Doc. 1-1, pp. 4-8). Count 14 asserts Eighth and Fourteenth Amendment claims against Defendant Godinez (Doc. 1-1, pp. 8-11). Count 15 is against Defendant Wexford Health Sources ("Wexford") for Eighth and Fourteenth Amendment violations (Doc. 1-1, pp. 11-12). Counts 16-18 assert equal protection and discrimination claims against Defendants Wexford, Kim, Magnus, Dozier, and Godinez (Doc. 1-1, pp. 12-16).

Count 19 is against Defendants Teverbaugh and Ritchey for violating Plaintiff's rights to due process in a disciplinary hearing on January 27, 2014 (Doc. 1-1, pp. 16-17). Count 20 asserts state law claims against Defendants Teverbaugh, Ritchey, and Godinez over the same incident, as well as other alleged violations (Doc. 1-1, pp. 17-18). Finally, Count 21 claims that all defendants have intentionally inflicted emotional distress upon Plaintiff (Doc. 1-1, pp. 18-19).

The following summary of Plaintiff's factual allegations is presented roughly in chronological order. Plaintiff alleges generally that after he filed his earlier lawsuit, Defendants Gephart, Dozier, and others intensified their retaliation and harassment against him. The acts of retaliation included the issuance of false disciplinary reports, verbal harassment, confiscation of Plaintiff's legal documents, destruction of his property, denial of his due process rights during disciplinary hearings, and the intentional opening of his legal mail (Doc. 1, pp. 13-14).

In reference to his medical needs, Plaintiff states that on June 30 and July 2, 2013, he submitted written requests for treatment for a possible ear infection, stating he had severe pain and hearing loss (Doc. 1, pp. 8-9). On July 3, 2013, he was called to the Health Care Unit, where Defendant Kim (a nurse) told him that in order to be treated, he must sign a money voucher for the $5.00 co-payment. Plaintiff responded that he was exempt from the $5.00 co-payment requirement because he had a need for emergency care and because he was indigent (having less than $20.00 in his inmate trust account), and he should not be forced to sign a money voucher to allow the co-payment to be deducted from his account in the future. Plaintiff tried to show Defendant Kim documentation of his indigent status and of the prison policies and state statute regarding the exemptions he invoked, but she refused to consider the documents. Defendant Kim refused to treat Plaintiff unless he signed the voucher.

Plaintiff continued to wait in the Health Care Unit for about 45 minutes. Defendants Dozier (Vandalia Warden) and Magnus (Healthcare Administrator) then arrived. Plaintiff explained to them and to Defendant Kim that he needed treatment but had no funds to pay and that he should be exempt from paying a fee. They refused to consider Plaintiff's argument or documents and told him to "pay the money or get out" (Doc. 1, p. 11). Plaintiff declined to sign the voucher, and he was escorted back to his cell without treatment. Plaintiff notes that prior to this incident, he had filed no fewer than twenty grievances regarding constitutional deprivations and misconduct by Vandalia officials, including Defendants Dozier and Magnus (Doc. 1, p. 11).

Later in the day, Plaintiff told Defendant Cameron (Assistant Warden) about the incident described above and explained that he was still in pain and needed treatment. She investigated the matter but refused to take any further action on Plaintiff's behalf.

Plaintiff continued to "suffer excruciating pain" for several days. He filed a grievance on July 4, 2013, over the refusal to treat him unless he agreed to be charged the co-payment, and he included in the grievance another request to be given treatment for his pain (Doc. 1, p. 12). The grievance was not promptly answered or properly investigated and was ultimately denied with the approval of Defendant Godinez (Director of the Illinois Department of Corrections - "IDOC").

Regarding Plaintiff's claims of retaliation, he initially describes a January 31, 2012, incident which generated his earlier lawsuit against Defendant Gephart (Case No. 13-cv-659-JPG-PMF) (Doc. 1, pp. 7-8). He then claims that Defendant Gephart continued to harass and retaliate against him from April 2012 through March 2014, and this pattern intensified after he filed the earlier suit on July 11, 2013. Further retaliation ensued after Plaintiff filed his grievance over the July 3, 2013, denial of medical care (Doc. 1, p. 13).

Noting that Judge J. Phil Gilbert allowed him to proceed on his retaliation claim against Defendant Gephart for events that took place from April 2012 through March 2013, Plaintiff states that he wishes to "incorporate by reference" a large portion of his complaint in Case No. 13-cv-659-JPG-PMF, as part of the instant complaint (Doc. 1, p. 17). He then alleges generally that he has been subjected to a "campaign of ongoing harassment, punishment, and retaliation" at the hands of many Vandalia officials, including Defendants Dozier, Magnus, Pruett, Gephart, Teverbaugh, Ritchie, and Harter, which he labels as "Count 1" of the complaint. Id. He lists numerous wrongs, such as denial of access to the law library, a "steady stream of false disciplinary reports, " and denial of medical treatment, without specifying any distinct incidents or linking the misconduct to a particular defendant. (Doc. 1, p. 17; see also Doc. 1, pp. 13-14). His outline of the facts mentions "numerous instances" where unnamed staff opened his clearly marked legal mail (Doc. 1, p. 14). Other unnamed staff issued him false disciplinary reports on March 21, 2013, for unauthorized movement, and on September 27, 2013, for a charge related to confiscation of Plaintiff's legal documents. Id.

Plaintiff gives more detail regarding a January 18, 2014, incident when Officer Brookins (who is not a defendant) took all of Plaintiff's property out of his living area for a shakedown while Plaintiff was at dinner. At the time, Plaintiff was housed at the Vandalia "Work Camp" and was attending academic/educational classes five days a week (Doc. 1, pp. 14-15). Two hours later, Plaintiff received his property back but was not given a shakedown receipt, nor was he issued a disciplinary report. One hour after getting his property back, Plaintiff was told that he was being moved from the work camp back to general population for disciplinary reasons, but he was given no further information.

On January 24, 2014, Plaintiff was called to an adjustment committee hearing before Defendants Teverbaugh and Ritchey (Doc. 1, pp. 15-16). They asked him what happened, and Plaintiff responded that he had no idea because he had never been given any disciplinary report. Defendant Teverbaugh read the report to Plaintiff, but Plaintiff refused to waive his right to 24-hour notice, stating he intended to present a defense. Defendant Teverbaugh gave Plaintiff the disciplinary report and rescheduled the hearing for the following Monday (January 27, 2014). When Monday came, Plaintiff was not called to a hearing. He later learned that he had been found guilty of the charges by Defendants Teverbaugh and Ritchey. Plaintiff's grievance over the disciplinary action was denied by Defendant Harter (grievance officer).

Plaintiff claims that Defendant Banal "authorized and approved" the false disciplinary charges against Plaintiff arising from the shakedown of his property, and approved his punishment, which included his removal from the work camp and expulsion from his educational programs (Doc. 1-1, p. 1). Defendant Banal took this action in retaliation for Plaintiff's prior grievance activity and lawsuit against other Vandalia officials.[2] Likewise, Defendants Teverbaugh and Richey deliberately refused to follow due process procedures in the January 2014 adjustment committee hearing as well as an earlier (September 27, 2013) hearing, in retaliation for Plaintiff's grievances and lawsuit (Doc. 1-1, p. 2).[3]

Plaintiff also outlines several specific instances of retaliation by Defendant Gephart, which occurred in February 2014 (Doc. 1-1, p. 3).[4] On February 10 and 11, he searched Plaintiff's property for no reason, pulled Plaintiff out of line, and took his property in retaliation for Plaintiff's grievances and earlier lawsuit against him. On February 12 and 13, he threatened to put Plaintiff in segregation, made derogatory comments, and threatened him with physical harm. On February 27, Defendant Gephart pulled Plaintiff out of line and ordered another officer to take Plaintiff's identification card. An hour later, the card was returned to Plaintiff defaced and destroyed, so that Plaintiff had to pay for a replacement card.

Plaintiff seeks declaratory and injunctive relief, as well as damages (Doc. 1-1, pp. 19-21).

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

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). Frivolousness is an objective standard that refers to a claim that "no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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).

Because of the unwieldy nature of the complaint, rather than attempting to consolidate and reorganize Plaintiff's claims in chronological order, the Court shall analyze Counts 1-21 as pled by Plaintiff.

Count 1 - "Campaign of Ongoing Harassment, Punishment, and Retaliation"

Plaintiff attempts to incorporate by reference as part of this count a large portion of his complaint in Brown v. Gephart, Case No. 13-cv-659-JPG-PMF, describing events that occurred from April 2012 through March 2013 (Doc. 1, p. 17). This he cannot do. The Court will not permit piecemeal pleadings; all of the allegations of a complaint are to be presented in a single document. See FED. R. CIV. P. 8(a). Furthermore, Plaintiff's claims that survived threshold review in Case No. 13-659 are proceeding in that matter. It is unnecessary and duplicative to incorporate them into a new case. That being said, the undersigned Judge has taken notice that Plaintiff stated claims against Defendant Gephart that survived threshold review in Case No. 13-659.

The allegation that harassment and retaliation by Vandalia officials against Plaintiff continued through March 2014 may be cognizable in this action. In Count 1, however, Plaintiff fails to connect any of the claims of retaliation - the "steady stream of false disciplinary reports; improper and malicious confiscation of property, inadequate disciplinary hearings; intentional mishandling of legal mail; unjust liberty restrictions in segregation; interference with, and denial of [his] right to receive medical treatment" - to a particular defendant (Doc. 1, p. 17). He lists Defendants Dozier, Magnus, Pruett, Gephart, Teverbaugh, Ritchey, and Harter in this count, however, the complaint does not give sufficient factual information about any specific incidents of retaliation to enable any defendant to answer the claims collected into Count 1. See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Accordingly, Count 1 shall be dismissed without prejudice.

Count 2 - Retaliation by Defendant Harter (Grievance Officer)

In this count, Plaintiff alleges that Defendant Harter retaliated against him by improperly denying and refusing to adequately investigate his numerous grievances (Doc. 1, p. 18). He argues that she thus allowed the unjust punishment and retaliation inflicted by others to stand uncorrected, intentionally failing to remedy the wrongs done to Plaintiff after she was informed of them through his grievances.

This claim is virtually identical to the claim Plaintiff raised in Case No. 13-cv-659, designated therein as Count 7, against Defendant Harter and several other defendants (including Defendants Magnus, Dozier, and Godinez), for denying his grievances. Count 7 was dismissed with prejudice in that case. The only difference is that Plaintiff now has labeled his claim as "retaliation, " which he states was triggered by his action of filing other grievances approximately two years ago, as well as by his 2013 lawsuit.

It is true that prison officials may not retaliate against inmates for filing grievances. See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000). In order to prevail on a retaliation claim, however, the inmate must have experienced an adverse action that would likely deter similar protected activity in the future. Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009). Clearly, Defendant Harter's "retaliatory" inaction on Plaintiff's grievances has not deterred him from bringing further grievances and complaints. As the Seventh Circuit has noted, "[E]ven in the field of constitutional torts de minimis non curat lex. Section 1983 is a tort statute. A tort to be actionable requires injury. It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise[.]" Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). Plaintiff's claim is for just such a de minimis injury. Further, it is indistinguishable from the frequently-raised (and as-frequently dismissed) claim that inmates' grievances are lost, ignored, not investigated, or denied within many prisons in this state, unconnected to any retaliatory motive.

Inmates have no constitutional right or other guarantee to have their grievances investigated to their satisfaction or even to obtain a response to their grievances (let alone a favorable one). The purpose of the prison grievance system is to provide an opportunity for the informal resolution of problems and minimize the need for litigation. A flaw in the grievance procedure or its execution will not be recognized as the basis for a civil rights suit, even if it is labeled as "retaliation." A prison official's failure to follow the institution's grievance procedure or to sustain a grievance simply does not give rise to a constitutional claim. See Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). Count 2 shall be dismissed with prejudice for failure to state a claim upon which relief may be granted (and as duplicative of the dismissed Count 7 in Case No. 13-cv-659-JPG-PMF).

Count 3 - Retaliation by Defendant Dozier (Warden)

The majority of this claim is identical to Count 2 above and to Count 7 in Case No. 13-cv-659-JPG-PMF. Plaintiff alleges that Defendant Dozier, in retaliation for Plaintiff's having filed grievances two years ago and bringing suit in Case No. 13-659, denied and refused to investigate his numerous subsequent grievances and failed to take the corrective action requested in those grievances against other officials whom he supervised (Doc. 1, pp. 18-20). These allegations fail to state a constitutional claim, for the reasons discussed above in Count 2. Furthermore, as discussed in the order dismissing Count 7 in Case No. 13-659, Defendant Dozier cannot be held liable because of his role as a supervisor over other defendants. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).

Only one statement describes direct involvement by Defendant Dozier in an alleged act of retaliation: Plaintiff's claim that on July 3, 2013, Defendant Dozier interfered with his ability to receive adequate medical treatment for his ear pain (Doc. 1, p. 19, ¶ 78). This claim is based on the identical facts which form the basis of Count 11 for deliberate indifference to medical needs. The merits of Count 11 shall be analyzed below.

Taking the pleading as a whole, it is apparent that Plaintiff is claiming that virtually all the acts or omissions by each defendant were taken in retaliation for his grievance activity that began in 2012 and for his 2013 lawsuit (which was not even filed in the proper court until after this July 3 incident, and which was allowed to proceed only against Defendant Gephart more than a month later). Plaintiff admits that he was denied medical care when he refused to sign a form to authorize deduction of the $5.00 co-payment from his account. In light of this fact, his theory that retaliation was the true motive for Defendant Dozier's "interference" with his medical treatment fails to cross "the line between possibility and plausibility." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). Count 3 against Defendant Dozier for retaliation shall also be dismissed with prejudice for failure to state a claim upon which relief may be granted.

Count 4 - Retaliation by Defendant Magnus (Health Care Administrator)

As with his claims in Counts 1-3, Plaintiff alleges that Defendant Magnus "almost immediately" retaliated against him because he filed grievances starting approximately two years ago and named her in his 2013 lawsuit (Doc. 1, pp. 20-21). But the only specific example of retaliation is her July 3, 2013, interference with Plaintiff's medical treatment for his ear pain, followed by her alleged interference with the proper investigation of his grievance over her conduct on July 3. Count 10 for deliberate indifference to medical needs is based on the same facts as recited in this claim, and shall be discussed further below.

For the reasons explained in Counts 2 and 3 above, Plaintiff fails to state a retaliation claim here against Defendant Magnus. Count 4 shall ...

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