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Norfleet v. Godinez

United States District Court, S.D. Illinois

June 9, 2015

MARC NORFLEET, # R-57214, Plaintiff,


J. PHIL GILBERT, District Judge.

Plaintiff is an inmate of the Illinois Department of Corrections, and is currently incarcerated at Pinckneyville Correctional Center ("Pinckneyville"), where he is serving a 59-year sentence for murder. In this pro se action, filed on February 12, 2015, he brings claims pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (42 U.S.C. § 12132) ("ADA"), and the Rehabilitation Act (29 U.S.C. § 705(2)(B)) ("RA"). This matter is now before the Court for a threshold merits review of the complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A.

Before turning to the complaint, however, the Court will address Plaintiff's outstanding request for this Court to order prison officials to provide him with "permanent access to law library open sessions and legal materials" while he has cases pending before the undersigned Judge (Doc. 16, p. 8; see also Docs. 10, 12).

Law Library Access

In response to this Court's order at Doc. 14, the Pinckneyville Law Librarian submitted an affidavit (Doc. 15). In it, she states that Plaintiff had been authorized for weekly library access during 2014 because of a September 5, 2014, court deadline. He was removed from this "priority scheduling list" on October 15, 2014. He was issued library passes on October 1, 8, and 15, 2014; he attended only the latter two dates. The librarian received only one request from Plaintiff for a library pass since that time, which was a request slip dated April 14, 2015. In response, Plaintiff was issued a library pass on April 24, 2015, to view his excess legal boxes.

Plaintiff objects to this affidavit, asserting that inmates do not have timely library access due to Pinckneyville's policy limiting the number of prisoners permitted to visit the library each week. He states this policy was an unreasonable response to a hostage-taking incident several years ago (Doc. 16, pp. 3, 7-8). He further complains that library officials do not recognize court deadlines that arise from procedural rules and statutes, but which are not reflected in a specific court order. Additionally, he claims that his library request slips are ignored, or possibly never delivered to their destination (Doc. 16, pp. 4-5).

After reviewing Docs. 15 and 16, the Court concludes that a further order with respect to Plaintiff's law library access is not warranted at this time. In reference to the case at bar, Plaintiff complains that he was not given a library pass after submitting this Court's order at Doc. 14, and that he missed the April 30 deadline to file a Rule 59(e) motion to challenge the order at Doc. 11 denying his motion for substitution of judge. But Plaintiff does not dispute that he was in fact issued a library pass, and attended law library, on April 24, 2015, albeit in response to a different request. Further, Plaintiff submitted his objection (Doc. 16) for filing on April 29, 2015, and could have also submitted a timely Rule 59(e) motion in reference to the denial of his substitution motion at that time. Although Plaintiff missed this Rule 59(e) deadline, the Court notes that the judicial recusal provisions of 28 U.S.C § 455 continue to apply throughout the pendency of this case ( see Doc. 6).

Plaintiff's other complaints regarding prison officials' failure to respond to his requests for library access all relate to other cases, thus are beyond the scope of the instant action. Despite Plaintiff's statement that he was not given a pass when he notified staff of an April 27, 2015, court deadline in Case No. 14-cv-1408-JPG-PMF, Plaintiff timely submitted his objection to the Magistrate Judge's Report and Recommendations in that case ( See Docs. 32, 36 in Case No. 14-cv-1408). Accordingly, he was not denied access to the court with reference to that matter. His other concern is an upcoming deadline to file a post-conviction action in the Circuit Court of Cook County. Again, that potential claim is not at issue in the instant case, and is not a proper subject for this Court to address in this action.

Plaintiff is advised that he should continue to submit library requests in accordance with the prison's policies, and may avail himself of the prison grievance procedure if his needs are not met. Further, in this or any other action pending before this Court, if Plaintiff finds himself unable to meet a Court deadline, he may move the Court for an extension in the appropriate case.

The Complaint (Doc. 1)

Initially, the Court notes that the instant complaint is virtually identical (with some material crossed out or corrected) to the proposed amended complaint that Plaintiff submitted on October 10, 2014, in Norfleet v. Ill. Dept. of Corrections, Case No. 10-cv-626-JPG-PMF (Doc. 86). On November 20, 2014, the Court denied Plaintiff leave to file that amended complaint, because its submission was untimely (Doc. 87 in Case No. 10-cv-626; see also Doc. 93). The sole matter under consideration in Case No. 10-cv-626 is a claim for violation of the Rehabilitation Act, in that Plaintiff was denied access to outdoor recreation for seven weeks (in April-June 2008) while he was confined at Menard Correctional Center ( see Doc. 1, pp. 18, 35; Doc. 80, p. 3, in Case No. 10-cv-626).

Plaintiff suffers from a severe back impairment and radiculopathy (a disease of the nerve roots and/or compression of the spine) and is confined to a wheelchair (Doc. 1, pp. 1, 6). Due to his physical condition, he had been receiving disability benefits before his incarceration.

In his complaint, Plaintiff notes that he filed two previous actions in this Court in which he raised claims related to his disability and prison officials' refusal to provide him with opportunities for physical exercise; namely Norfleet v. Benton, et al., Case No. 09-cv-347-JPG-PMF (S.D. Ill., filed May 6, 2009; dismissed March 22, 2013); and Norfleet v. Ill. Dept. of Corrections, Case No. 10-cv-626-JPG-PMF (filed Aug. 16, 2010; still pending).[1] He states that the Defendants named herein have engaged in a "continuous pattern" of intentionally denying accommodations for his medical condition, and have done so in retaliation for his filing of the above complaints.

Before the dismissal of Case No. 09-cv-347, a hearing was held in that case to consider Plaintiff's request for a preliminary injunction (Doc. 1, p. 2). Menard Warden Kimberly Butler and ADA Coordinator Patrick Keane (both named as Defendants herein) testified that Plaintiff (who at the time was in Menard) would be transferred to Pinckneyville, which was ADA-compliant and would be able to accommodate his needs for exercise. However, Plaintiff asserts, Pinckneyville is not in fact in compliance with the RA. As a result of this non-compliance and his inability to exercise, Plaintiff's shoulder pain "has reached the point of no return" (Doc. 1, p. 2). Despite his many complaints and grievances, he has continued to be denied access to facilities and equipment that would allow him to engage in physical exercise similar to what is available to non-disabled inmates.

Plaintiff raises several claims herein. First, he asserts that Defendant Menard Warden Butler intentionally delayed his transfer to Pinckneyville, in retaliation for his litigation activity (Doc. 1, p. 7).

He next claims that Defendant Keane (ADA compliance officer for the IDOC) retaliated against Plaintiff for involving him in the proceedings in Case No. 09-cv-347, by deliberately instructing the ADA coordinators at all IDOC facilities (including the prisons where Plaintiff has been housed) that they are not obligated by the ADA or RA to make disability accommodations that would allow Plaintiff to "receive beneficial and meaningful exercise" (Doc. 1, p. 8-9). He specifically points to Defendant Keane's testimony that the IDOC does not have the obligation to make their pull-up or chin-up bars accessible to wheelchair-bound inmates.

Once Plaintiff arrived at Pinckneyville, he was not given passes to attend the gym, where he notes he would be unable to use the exercise equipment even if he had a pass (Doc. 1, p. 10). Defendant Wilson (Pinckneyville ADA coordinator) responded to Plaintiff's grievance by stating he has appropriate access to recreation because he is offered yard for seven hours each week, and may access the ADA gym once per week. Defendants Gaetz, Benton, and Godinez concurred with the denial of Plaintiff's grievance over this matter (Doc. 1-1, pp. 28-30).

In March 2013, Plaintiff submitted a grievance complaining that he could not access the pull-up-dip bars, cardio wheelchair exercise track, exercise machines, handball court, or basketball court, because he could not move in and out of his wheelchair without aggravating his medical condition, and because he had not been provided with a sport wheelchair that would protect him from tipping over (Doc. 1-1, p. 31-33). Defendant Wilson responded that Plaintiff had sufficient access to recreation, and Defendant Brown stated that his wheelchair met ADA standards (Doc. 1, p. 11). Defendants Gaetz, Benton and Godinez concurred in the denial of the grievance.

By September 2013, Plaintiff states he had submitted numerous request slips to Defendant Pinckneyville Warden Gaetz, complaining that although the wheelchair cardio track was reopened, it was unusable because it is "full of old hard chunky dirt and mire" (Doc. 1, p. 11; Doc. 1-1, p. 34). Also, Plaintiff did not have any padded gloves, which the prison had previously issued, and he needed a sport wheelchair for safety. His grievance over these issues was deemed to be a duplicate.

During 2014, Plaintiff continued to complain about the lack of disabled-accessible exercise equipment/facilities. He was unable to use the pull-up bar because of his painful shoulder condition. His request for free weights as an alternative to the pull-up bar was denied (Doc. 1-1, pp. 35-36). He developed blisters, but was never prescribed padded gloves to allow him to use the wheelchair track yard (Doc. 1, p. 12; Doc. 1-1, p. 37).

As a result of the ongoing failure to accommodate Plaintiff's disability with respect to his need for meaningful physical activity to maintain his health, he has suffered a worsening of his shoulder injury, pain, limited range of motion, constipation, stomach cramps, and migraine headaches (Doc. 1, p. 9).

Plaintiff filed complaints against Dr. Vipin Shah (who is not a named Defendant herein) and Defendant Brown (Health Care Administrator), and claims they have retaliated against him. He asserts he is the only wheelchair-bound/ADA inmate who is made to pay a $5.00 co-payment each time his disability-related pain medications expire. Because he suffers from chronic pain, he should be placed on the "chronic pain clinic" like all other wheelchair-bound inmates so that his medications don't expire and so that he will be exempt from the co-payment.

He claims that Defendants Flatt (Pinckneyville ADA investigator) and Dean (Pinckneyville grievance officer) "knowingly and intentionally sabotaged" many of his grievances over the failure to accommodate his need for exercise, and regarding medical care (Doc. 1, p. 13). As a result, he has been denied access to the courts, and cannot prove that Defendants Godinez, Benton, Spiller, Gaetz, Edwards, ...

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