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Phelps v. Phillips

United States District Court, S.D. Illinois

January 20, 2015

KEVIN PHELPS, Plaintiff,
PHILLIPS, and S.A. GODINEZ, Defendants

Kevin Phelps, Plaintiff, Pro se, Sumner, IL.

For C/O Phillips, S. A. Godinez, Director, Defendants: Ashley Barrett Carter, Office of the Attorney General-Springfield, Springfield, IL.


STEPHEN C. WILLIAMS, United States District Judge.

This Report and Recommendation is submitted to United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § § 636(b)(1)(B) and (C). This matter was referred to the undersigned for further pre-trial proceedings. (Doc. 10). Since the referral, Plaintiff filed a Motion for Temporary Restraining Order/Motion for Preliminary Injunction. (Doc. 18). Having held a hearing on Plaintiff's preliminary injunction on January 9, 2015, it is RECOMMENDED that Plaintiff's Motion for a Preliminary Injunction be DENIED.


Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Kevin Phelps brought this case alleging 1) an Eighth Amendment failure to protect claim, and 2) an Americans with Disabilities Act (ADA) claim. On December 8, 2014, Plaintiff filed the present Motion. (Doc. 18). Defendants filed a Response to the Motion on December 30, 2014. (Doc. 24). The undersigned then held a hearing and heard testimony on January 9, 2015. (Doc. 29).

Plaintiff's Motion alleges that he is in danger due to IDOC and Lawrence Correctional Center's policy of placing non ADA inmates in cells with paraplegics, like himself. (Doc. 18). Plaintiff pointed to an incident on July 6, 2013, which was also described in his Complaint, in which another inmate allegedly beat him while the guard watched. (Doc. 18). Plaintiff alleges that he has no way of defending himself against other inmates, and that other inmate threaten to dump him out of his wheelchair, beat him, or steal things from him. (Doc. 18, pp. 2-3). Plaintiff requested to be placed in an ADA cell with another ADA inmate, to be placed into protective custody, to have the Warden and correctional officers stop harassing him, and to be transferred to a facility that houses ADA inmates. (Doc. 18, p. 4). Plaintiff also attached grievances he had written regarding the alleged July 6, 2013 incident, and his request for protective custody. (Doc. 18, pp. 7-13). Protective Custody is not available at Lawrence Correctional Center.

In Response Defendants filed an affidavit from Dawn Hopper, who occasionally serves as a placement officer at Lawrence Correctional Center. (Doc. 24-1, p. 1). She attested to the fact that ADA cells house two inmates at a time, and that inmates with disabilities can be placed in a cell with an able-bodied inmate. (Doc. 24-1, p. 1). Specifically, Hopper stated that disabled inmates are assigned an attendant to assist the disabled inmate with their daily tasks. (Doc. 24-1, p. 6). Hopper stated that Plaintiff had been celled with his attendant. (Doc. 24-1, p. 2).

At the hearing, Plaintiff testified that " attendant" is little more than a designation in that the prison provides no training to attendants on assisting disabled prisoners. He further testified that he would not trust his attendant to lift him back into his chair if he fell out of it because they did not know the proper technique. Plaintiff testified that if he needed to move from the bed to his chair or from his chair to the toilet, he moved himself. When asked by the Court what services an attendant was supposed to provide, Beth Tredway, assistant warden, testified that an attendant could help write grievances or move the disabled inmate.

The Court asked Plaintiff what assistance he needed that was not provided. Plaintiff testified that, as a paraplegic, he had no control over his bladder and bowel functions. Plaintiff estimated that he soils himself approximately 3-4 times per week. Plaintiff prefers to clean himself up after these incidents by taking a shower, but testified that he often has to wait until the 3-11 shift to get a shower, regardless of when his accident occurs. Effectively, Plaintiff sits in filth for several hours before he is taken to the shower. He testified that he has little means of cleaning himself up and that his assistant would not help him with this task. In fact, Plaintiff testified that he gets in arguments with his cellmate because Plaintiff tries to move his bowels on the toilet, but doing so requires him to sit there for hours, and his cellmate gets angry if he cannot use the facilities. Tredway testified that Plaintiff had an indefinite shower permit, but conceded that he would have to wait until it was convenient for a guard to take him to the shower. She also testified that Plaintiff could always take a sponge bath, but offered no details on how this was to occur. Tredway implied that the assistant could help with that task, although when asked what an assistant does, Tredway did not list sponge baths. Tredway stated that she has had many conversations with Plaintiff regarding this issue.


A preliminary injunction is " an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). Accord Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (" A preliminary injunction is an extraordinary remedy never awarded as of right."). To win a preliminary injunction, a plaintiff must show (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm without the injunction, (3) that the harm he would suffer is greater than the harm a preliminary injunction would inflict on defendants, and (4) that the injunction is in the public interest. Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010) (citing Winter, 555 U.S. at 20). The " considerations are interdependent: the greater the likelihood of success on the merits, the less net harm the injunction must prevent in order for preliminary relief to be warranted." Judge, 612 F.3d at 546.

In the context of prisoner litigation, there are further restrictions on courts' remedial power. The scope of the court's authority to enter an injunction in the corrections context is circumscribed by the Prison Litigation Reform Act (PLRA). Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA, preliminary injunction relief " must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm." 18 U.S.C. § 3626(a)(2). See also Westefer, 682 F.3d at 683 (the PLRA " enforces a point repeatedly made by the Supreme Court in cases challenging prison conditions: prison officials have broad administrative and discretionary authority over the institutions they manage") (internal quotation marks and citation omitted).

A TRO may issue without notice

only if: (A) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition, and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Fed.R.Civ.P. 65(b).

Here, Plaintiff has not shown that he is likely to succeed on the merits. Plaintiff offered no testimony that his current cellmate was a threat to him. He did not allege that he has been attacked since the July 2013 incident. Tredway testified that Plaintiff's attendant had been changed by request in the past. She also testified that the ADA does not prohibit double celling. For these reasons, the undersigned finds that Plaintiff is not likely to succeed on his claim that his current cell arrangement violates the ADA. Plaintiff also asks for broad relief in that he wishes for the Court to dictate his housing assignment. This is not a narrowly drawn request, and given that Plaintiff has not shown that the double celling is currently harming him, injunctive relief of this nature is not appropriate pursuant to the PLRA.

Additionally, Plaintiff's issues regarding his personal hygiene and shower schedule were not raised in his Motion for a Preliminary Order/Motion for TRO, and therefore Defendants were not on notice regarding this issue.[1] The threshold order also did not construe the Complaint as stating a claim based on the denial of showers, although Plaintiff included a grievance addressing that issue as an Exhibit. If Plaintiff wishes to include a claim based on the shower issue, he needs to amend his Complaint. Without such an amendment, any equitable relief the Court could grant would be outside the scope of the Complaint, and therefore, not the proper subject for an injunction.

The undersigned recommends that the District Court DENY Plaintiff's Motion for a preliminary injunction. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Recommendation. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004). Objections to this Report and Recommendation must be filed on or before February 6, 2015. See Fed.R.Civ.P. 6(d); SDIL-LR 5.1(c).


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