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Bilik v. Shearing

United States District Court, S.D. Illinois

January 23, 2017

RICHARD BILIK, # K-60539, Plaintiff,


          MICHAEL J. REAGAN Chief Judge U.S. District Court

         Now 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).

         In 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. 19-26, 44).

         This case is now before the Court for preliminary review of the First Amended Complaint pursuant to 28 U.S.C. § 1915A, which provides:

(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 such relief.

         An 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

         In his 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).

         Plaintiff 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. Id.

         Plaintiff 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.[1] (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).

         Plaintiff's 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.

         Plaintiff 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).

         Plaintiff 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).

         It was 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. Id.

         Plaintiff 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).

         Plaintiff also blames the denial of treatment on a cost-saving policy espoused by Wexford Health Sources, Inc. (“Wexford”)[2] 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).


         Based 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[3] 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, pp. 38-41).
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).

         As 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.

         Claims Subject to Further Review

         Counts 1, 2, and 5 - ...

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