United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN Chief Judge U.S. District Court
before the Court for consideration is the First Amended
Complaint (Doc. 12) filed by Plaintiff Richard Bilik.
Plaintiff is currently incarcerated at Pinckneyville
Correctional Center (“Pinckneyville”). Proceeding
pro se, he filed this civil rights action against 22
known and 7 unknown officials who denied him medical care for
migraine headaches and neuropathy at Lawrence Correctional
Center (“Lawrence”) in 2012-13 and at Menard
Correctional Center (“Menard”) from 2013-16.
(Doc. 12, pp. 17-44). He alleges that certain officials
conspired to retaliate against him for filing grievances at
Lawrence by transferring him to Menard and denying him
medical treatment and physical therapy there. (Doc. 12, pp.
26-44). Plaintiff now brings claims against the defendants
under the First, Eighth, and Fourteenth Amendments, the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346, 2671-2680, the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et
seq., the Rehabilitation Act, 29 U.S.C. §§
794- 94e, and Illinois state law. (Doc. 12, pp. 17-18, 20).
connection with these claims, Plaintiff sues four groups of
defendants, which he identifies as follows: (1) Lawrence
Defendant - Warden Marc Hodge; (2) Menard Defendants -Warden
Richard Harrington, Warden Kimberly Butler, Major/Assistant
Warden Jacqueline Lashbrook, Correctional Counselor Angela
Grott, Grievance Officer John Doe, Lieutenant Richard
Ferrell, and Sergeant Federke; (3) Wexford Defendants -
Doctor Ritz, Doctor Robert Shearing, Doctor John Trost,
Physicians' Assistant (“P.A.”) M.
Moldenhauer, P.A. Fe Fuentes, P.A. McGlorn, Nursing Director
Gail Walls, Nurse Angela Crain, Nurse Cindy McDaniels, Nurse
John Does ##1-3, and Nurse Jane Does ##1-3; and (4) State
Defendants - Governor Bruce Rauner, IDOC
Director John Baldwin, IDOC Director S. A. Godinez, IDOC
Medical Director Louis Shicker, Transfer Coordinator Sandra
Funk, and Administrative Review Board Member Billie Greer.
(Doc. 12). Plaintiff seeks monetary damages. (Doc. 12, pp.
case is now before the Court for preliminary review of the
First Amended Complaint pursuant to 28 U.S.C. § 1915A,
(a) Screening - The court shall review,
before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal - On review, the
court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
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 any reasonable
person would find meritless. 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. At
this juncture, the factual allegations in the pro se
complaint are to be liberally construed. See Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
2009). The First Amended Complaint survives preliminary
review under this standard. However, the Court will exercise
its authority under § 1915A and dismiss certain claims
against the defendants.
First Amended Complaint (Doc. 12), Plaintiff alleges that he
suffers from two medical conditions that resulted from a
“beating” at Cook County Jail in 2012. (Doc. 12,
p. 27). The conditions include migraine headaches and
neuropathy. (Doc. 12, pp. 18, 27). Plaintiff's headaches
last from 4 hours to 4 days and render him unable to perform
normal daily tasks, such as reading, writing, working,
eating, or leaving his cell. (Doc. 12, pp. 18, 28, 32).
Plaintiff's neuropathy, or chronic nerve damage, causes
severe back and generalized body pain. (Doc. 12, p. 18). This
condition limits Plaintiff's ability to perform
“normal daily tasks and activities, ” such as
showering, standing, exercising, and working. (Doc. 12, pp.
18-19, 28, 32). A neurologist diagnosed Plaintiff with both
conditions and prescribed the following medications for them:
Neurontin, Elavil, and Depakote. (Doc. 12, p. 27).
contends that he was denied adequate medical care for these
“serious and excruciatingly painful” conditions
at Lawrence and Menard. (Doc. 12, pp. 17-18). But beyond
alleging that he was incarcerated at Lawrence from October
19, 2012 until June 13, 2013, he sets forth no allegations
regarding the medical care he received, or was denied, there.
instead focuses on a claim that Lawrence officials decided to
transfer him to Menard in retaliation for filing grievances
to complain about the conditions of his confinement at
Lawrence. (Doc. 12, p. 26). The prison officials
allegedly knew at the time of making the transfer decision
(i.e., sometime between June 1 and June 14, 2013)
that Menard was not handicap accessible. (Doc. 12, pp. 18,
20). These officials also knew that Menard lacked physical
therapy facilities. Id. Plaintiff names Warden Marc
Hodge in connection with his retaliatory transfer claim,
based solely on the warden's role in creating and
implementing policies regarding the treatment and transfer of
inmates. (Doc. 12, p. 20).
medical claims arise from events that transpired at Menard
after he transferred there on June 13, 2013. (Doc. 12, pp.
17-18, 21-22). Despite the fact that his First Amended
Complaint and exhibits total almost 190 pages, the factual
allegations offered in support of these claims are thin.
alleges that he met with an unknown intake nurse at Menard.
(Doc. 12, p. 26). He told the nurse about his diagnosis with
migraines and neuropathy following his assault at Cook County
Jail on March 14, 2012. (Doc. 12, p. 27). Plaintiff listed
the medications he was prescribed for these conditions.
Id. Plaintiff also informed the nurse that he
required physical therapy. Id. The intake nurse made
a written record of their conversation. (Doc. 12, pp. 26-27).
The nurse then informed Plaintiff that he would not receive
any of his medications or physical therapy. (Doc. 12, p. 27).
later learned that Shearing directed Moldenhauer to
discontinue his treatment upon his arrival at Menard.
Id. Shearing would not recognize Plaintiff's
diagnosis with either condition. Id. Shearing and
Fuentes refused to treat Plaintiff or refer him for treatment
with an outside specialist, despite his complaints of
excruciating pain in numerous sick call requests and
grievances. (Doc. 12, pp. 28, 32).
not until February 2015 that Doctor Trost, working in
conjunction with Doctor Ritz, finally recommended Plaintiff
for physical therapy. (Doc. 12, p. 29). However, it appears
that Plaintiff never actually received any physical therapy
as a result of this referral request. Id. Plaintiff
claims that the doctors failed to take the steps necessary to
complete the referral process. Id. In August 2015,
Doctor Trost reinstated Plaintiff's prescription
medications by prescribing him virtually the same medications
that “were stripped from the Plaintiff originally upon
intake.” (Doc. 12, p. 29). Still, Plaintiff insists
that he received no meaningful treatment for either condition
until he transferred to Pinckneyville on February 2, 2016.
alleges that McDaniels, Walls, Crain, and McGlorn conspired
with Shearing, Moldenhauer, Trost, Fuentes, and the intake
nurse to retaliate against him for filing these grievance(s)
by denying him medical care. (Doc. 12, pp. 27-28). The
medical staff simply would not acknowledge either diagnosis.
(Doc. 12, p. 28). According to Plaintiff, the diagnoses were
difficult to miss and more likely ignored. These defendants
should have known about Plaintiff's outside treatment
with numerous specialists because the records were included
in his medical file. (Doc. 12, p. 29). Further, Greer,
Harrington, Grott, Butler, Ferrell, Lashbrook, and John Doe
(Menard Grievance Officer) were aware of Plaintiff's
untreated medical conditions because they either reviewed his
grievances or spoke directly to him about the conditions.
(Doc. 12, p. 28).
also blames the denial of treatment on a cost-saving policy
espoused by Wexford Health Sources, Inc.
(“Wexford”) that discourages the formal diagnosis
of inmate medical conditions in an effort to avoid the
attendant treatment obligations. (Doc. 12, p. 28). Citing an
expert report prepared in Lippert v. Godinez, No.
1:10-cv-04603 (N.D. Ill.), a class action filed in the United
States District Court for the Northern District of Illinois,
Plaintiff also generally complains of systemic problems in
Illinois state prisons that include: (1) consultations with
no follow-up appointments (Doc. 12, p. 30); (2) long term
vacancies for critical medical staff positions (Doc. 12, p.
31); and (3) Wexford's self-monitoring of services (Doc.
12, p. 31). However, he does not allege that these
system-wide policies caused the denial of his own medical
care. (Doc. 12).
on the allegations in the First Amended Complaint, the Court
finds it convenient to divide this pro se action
into the following enumerated counts, which generally track
Plaintiff's own characterization of his claims. The
parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a
judicial officer of this Court. The designation of these
counts does not constitute an opinion regarding their merit.
Count 1 - Defendants denied Plaintiff
medical care for his migraines at Menard from 2013-16, in
violation of his federal constitutional rights under the
Eighth and Fourteenth Amendments and his state constitutional
rights under Art. I, §§ 1, 2, 4, 5, 11, 12, 19, and
24. (“Count 1, ” First Amended Complaint) (Doc.
12, pp. 32-33).
Count 2 - Defendants denied Plaintiff
medical care for his chronic nerve damage and back pain at
Menard from 2013-16, in violation of his federal
constitutional rights under the Eighth and Fourteenth
Amendments and his state constitutional rights under Art. I,
§§ 1, 2, 4, 5, 6, 11, 12, 19, and 24. (“Count
2, ” First Amended Complaint) (Doc. 12, pp. 34-35).
Count 3 - Defendants committed medical
malpractice or negligence in violation of Illinois law when they
failed to treat Plaintiff's migraines and neuropathy from
2013-16. (“Count 3, ” First Amended Complaint)
(Doc. 12, pp. 35-36).
Count 4 - Defendants conspired to retaliate
against Plaintiff for filing grievances to complain about the
conditions of his confinement by discarding his personal
property, denying him access to commissary, transferring him
to Menard, and denying him medical care, all in violation of
the First Amendment. (“Count 4, ” First Amended
Complaint) (Doc. 12, pp. 37-38).
Count 5 - Defendants denied Plaintiff access
to his prescription medications for both conditions at Menard
from 2013-16, in violation of his federal constitutional
rights under the Eighth and Fourteenth Amendments.
(“Count 5, ” First Amended Complaint) (Doc. 12,
Count 6 - Defendants conspired to deny
Plaintiff equal protection of the law in violation of the
Fourteenth Amendment. (“Count 6, ” First Amended
Complaint) (Doc. 12, pp. 41-42).
Count 7 - Defendants violated
Plaintiff's rights under the ADA and Rehabilitation Act
by failing to treat his chronic medical conditions and
refusing him physical therapy, which rendered him unable to
participate in daily activities. (“Count 7”)
(Doc. 12, pp. 42-43).
Count 8 - Defendants are liable to Plaintiff
for negligence under the FTCA. (Doc. 12, p. 1).
discussed in more detail below, Plaintiff shall be allowed to
proceed with his Eighth Amendment claims in Counts 1, 2, and
5 against Ritz, Shearing, Trost, Moldenhauer, Fuentes,
McGlorn, Walls, Crain, McDaniels, Jane/John Doe (Menard
Intake Nurse), Ferrell, John Doe (Menard Grievance Officer),
Harrington, Butler, Lashbrook, Grott, and Greer; the
Fourteenth Amendment claims and state constitutional claims
referred to in these counts shall be dismissed. In addition,
Count 7 shall proceed against Salvador Godinez and John
Baldwin, the former and current Directors of the Illinois
Department of Corrections. However, Counts 3, 4, and 6 shall
be dismissed without prejudice and Count 8 shall be dismissed
with prejudice for failure to state a claim upon which relief
may be granted.
Subject to Further Review
1, 2, and 5 - ...