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McGowann v. R. Shearing

United States District Court, S.D. Illinois

January 9, 2017

MICHAEL MCGOWAN, Plaintiff,
v.
R. SHEARING, ILLINOIS DEPARTMENT OF CORRECTIONS, and ANGELA CRAIN, Defendants.

          ORDER

          DONALD G. WILKERSON United States Magistrate Judge.

         The history of this case has been set forth in a number of Orders, most notably the Order on summary judgment (Doc. 175), and will not be repeated in detail here because familiarity is presumed. Suffice it to say, Plaintiff is an inmate who has a prosthetic leg. His complaints concern the prosthesis and medical care that he received, in addition to his living conditions, since at least September 2010. Essentially, Plaintiff complains that from September 2010 to at least October 2013 he never was given a prosthesis that fit or functioned correctly, that he was without a prosthesis for an unreasonable amount of time, and that he was unable to navigate his cell and the prison, without a properly functioning prosthesis, at all or without difficulty. Pursuant to the Court's latest Order (again on summary judgment), Plaintiff is proceeding on the following claims:

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, entered on December 8, 2015).

         On March 7, 2016, Plaintiff sought to amend his complaint after counsel was appointed in anticipation of trial (Doc. 192). The proposed second amended complaint sought to add a number of new defendants: Wardens Harrington and Butler, Dr. John Trost, Dr. Ritz, and Nurse Gail Walls; and, it sought to restate claims against a dismissed Defendant, Wexford. Plaintiff set forth claims as follows (which are numbered according to the proposed second amended complaint but paraphrased by the Court; new Defendants and claims are highlighted):

Count 1: Defendants Harrington, Butler, Shearing, Crain, Walls, and Trost 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: All Defendants were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment including Wexford which promulgated and maintained unconstitutional policies and practices of deliberate indifference;
Count 3: The IDOC violated Title II of the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 et seq., with respect to the conditions of Plaintiff's cell and the denial of an assistive device;
Count 4: The IDOC violated the Rehabilitation Act, 29 U.S.C. ยงยง 794-94e, with respect to the conditions of Plaintiff's cell ...

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