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McGowan v. Shearing

United States District Court, S.D. Illinois

October 18, 2016

MICHAEL MCGOWAN, Plaintiff,
v.
ROBERT SHEARING, ILLINOIS DEPARTMENT OF CORRECTIONS, WEXFORD HEALTH SOURCES, INC., and ANGELA CRAIN, Defendants.

          ORDER

          DONALD G. WILKERSON United States Magistrate Judge

         Now pending before the Court is the Second Motion to Amend filed by Plaintiff, Michael McGowan, on March 7, 2016 (Doc. 192). For the reasons set forth below, the Motion is DENIED.

         Background

         Plaintiff filed his original complaint on January 8, 2014 alleging claims pursuant to 42 U.S.C. § 1983 related to his incarceration at the Menard Correctional Center from July, 2012 to the date of the Complaint. Plaintiff has a prosthetic leg and his claims relate to the housing and medical services he received at the prison. Plaintiff claims that he was compelled to give up his prostheses without an adequate replacement or other assistive device, that his cell was not equipped with rails or other assistive fixtures, and that he was unable to move about the prison to eat, shower, or exercise: essentially he claimed that he was celled in conditions that mimicked disciplinary housing (Doc. 6). Plaintiff named three defendants, Warden Richard Harrington, Dr. Robert Shearing, and Wexford Health Sources, Inc. (“Wexford”). Plaintiff was ultimately permitted to proceed on four counts against Dr. Shearing and the Illinois Department of Corrections (“IDOC”) (which was added by the Court) (Id.). Counts 1, 3, and 4 allege that Dr. Shearing was deliberately indifferent to Plaintiff's health needs related to his cell and equipment (Count 1), that he was deliberately indifferent to Plaintiff's health needs related to his prosthesis (Count 3), and that he retaliated against Plaintiff (Count 4). Count 2 alleges that the IDOC violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., and the Rehabilitation Act, 29 U.S.C. §§ 794-94e (Id.). The Court dismissed, without prejudice, Richard Harrington and Wexford (Id.).

         On July 31, 2014, Plaintiff sought to amend the complaint to add various new defendants and claims (Doc. 51). That Motion was granted in part and Plaintiff was permitted to proceed on claims against Angela Crain (who was added to Counts 1, 3 and 4) and Wexford (against which a policy and practice clam was made in Count 6), in addition to Dr. Shearing and the IDOC (against whom an additional policy and practice claim was added in Count 5) (Doc. 67, p. 5-6; Doc. 68).

         The discovery deadline was January 30, 2015 and a motion for summary judgment on the merits was filed by Dr. Shearing and Wexford (Doc. 114). Plaintiff filed a response on June 3, 2015 (Doc. 149). On December 8, 2015, the District Court granted in part and denied in part the motion for summary judgment (Doc. 175). The Court granted judgment for Wexford on Count 6 and for Dr. Shearing on Count 4. As a result of that Order, the following counts remain:

Count 1: Dr. Robert Shearing and Nurse Angela Crain violated the Eighth Amendment when they left Plaintiff in a cell that was not equipped for his handicap and when they 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: Dr. Robert Shearing and Nurse Angela Crain were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment; Count
4: Nurse Angela Crain retaliated against Plaintiff for his attempts to secure medical care and a properly equipped cell, in violation of the First Amendment; and
Count 5: The IDOC maintains unconstitutional policies and practices of deliberate indifference with respect to appropriate housing, accommodations, medical care and conditions of confinement for handicapped inmates.

(Doc. 175, pp. 23-24).

         The Court further indicated that counsel would be recruited for Plaintiff and that a status conference would be held in order to set final pretrial and trial dates. On January 8, 2016, counsel was recruited for Plaintiff and, during a conference on January 27, 2016 (Doc. 187), Plaintiff was permitted to file a motion to amend the complaint. That motion is now before the Court.

         Plaintiff seeks to amend his complaint because “circumstances have changed” since the filing of his original complaint. In the proposed Second Amended Complaint, Plaintiff states that since he arrived at Menard CC in early 2007, he has had problems with his prosthesis. Plaintiff re-alleges his claims that from 2012 to 2014 he had problems with his new and old prosthesis, that the complained to Dr. Shearing about these problems, and that they were not adequately addressed. He further claims that during the process ...


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