United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon Judge
Vandaire Knox, an inmate in Menard Correctional Center,
brings this action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. Plaintiff suffers
from persistent swelling and severe pain in his left knee. As
a result, Plaintiff has a knee brace permit and a low
bunk/low gallery permit. In June 2015, after Plaintiff was
transferred to Menard's North II segregation unit,
Defendants confiscated Plaintiff's knee brace for 49 days
and did not honor Plaintiff's low bunk/low gallery
permit. When Plaintiff filed grievances regarding this
conduct, Defendants moved Plaintiff to a more restrictive
cell. Additionally, in September 2015, when Plaintiff was
released from segregation, Defendants housed Plaintiff in a
location that made it difficult, if not impossible, for an
individual with Plaintiff's disabilities to commute to
the showers. As a result, Plaintiff was unable to attend
showers for 390 days. Plaintiff alleges Defendants'
conduct caused severe pain and exacerbated his knee injury.
connection with these claims, Plaintiff sues Kimberly Butler
(Warden), Cameron Watson (Assistant Warden), Major Hassameyer
(Cell House Major), Lieutenant Meyer (Cell House Lieutenant),
Pelker (Cell House Sergeant), John Doe 1 (Cell House Gallery
Officer), John Doe 2 (Cell House Gallery Officer), John Trost
(Doctor), Mike (Medical Technician), Susan Kirk (Nurse),
Illinois Department of Corrections (“IDOC”), and
Wexford Health Sources (“Wexford”) (Corporate
Healthcare Provider). Plaintiff has sued all Defendants in
their official and individual capacities. He seeks monetary
damages and injunctive relief.
request for injunctive relief references a preliminary
injunction and a temporary restraining order
(“TRO”). Out of an abundance of caution, the
Court construes the Complaint as including a Motion for a TRO
pursuant to Federal Rule of Civil Procedure 65(b), a Motion
for Preliminary Injunction pursuant to Federal Rule of Civil
Procedure 65(a), as well as a general prayer for injunctive
Court denied the Motion for a TRO on February 2, 2017 and
reserved ruling on the Motion for Preliminary Injunction.
(Doc. 5). As is discussed more fully below, the Motion for
Preliminary Injunction will be referred to the magistrate
judge for prompt disposition.
case is now before the Court for a preliminary review of the
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
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 of the pro se
complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
821 (7th Cir. 2009).
careful review of the Complaint and any supporting exhibits,
the Court finds it appropriate to exercise its authority
under § 1915A; portions of this action are subject to
Prior 1983 Action Involving Left Knee Injury
not Plaintiff's first action raising claims pertaining to
his left knee. In 2014, Plaintiff filed a pro se
civil rights action pursuant to 42 U.S.C. § 1983
alleging 19 defendants at Menard were deliberately
indifferent to his left knee injury. See Knox v. Shearing
et al, Case No. 3:14-cv-193-MJR (“Prior
Case”). With the exception of Butler, the instant
action does not involve the same defendants.
to the complaint in the Prior Case, Plaintiff was transferred
to Menard in January 2011 with a preexisting knee injury.
Plaintiff raised deliberate indifference claims premised on
allegations that the defendants either failed to provide or
renew Plaintiff's pain medication, or gave him medication
known to be ineffective and to cause harmful side effects.
Plaintiff sought damages, declaratory relief, and injunctive
case moved forward and, on November 1, 2016, the parties
reached a confidential settlement agreement. (Prior Case,
Doc. 153). That same day, a 60-day order was entered.
(Prior Case, Doc. 154). The 60-day order deadline was
recently extended to March 7, 2017 in response to a request
from the parties seeking additional time to consummate
settlement. (Prior Case, Doc. 160). Accordingly,
Plaintiff's Prior Case is still pending. The Court also
notes that in January 2016 (shortly after the events at issue
in the instant action occurred), Plaintiff made an oral
motion for preliminary injunction. (Prior Case, Doc. 113).
The record does not reflect the matters at issue in relation
to Plaintiff's oral motion for preliminary injunction and
the motion was subsequently withdrawn. (Prior Case, Doc.
120). Accordingly, the Court cannot determine if
Plaintiff's oral motion for preliminary injunction
involved any of the constitutional violations alleged in the
Court has reviewed the Prior Case in an effort to determine
whether the doctrine of claim preclusion, or res judicata,
precludes Plaintiff from litigating the constitutional claims
raised in the instant case. See Briggs-Muhammad v. SSM
Healthcare Corp., 567 F. App'x 464, 464-65 (7th Cir.
2014) (at the screening stage, it is permissible to rely on
an affirmative defense, such as claim preclusion, that is
“apparent and unmistakable” from the face of the
complaint and the documents in the district court's
possession to dismiss a case). Claim preclusion “is an
affirmative defense designed to prevent the
‘relitigation of claims that were or could have been
asserted in an earlier proceeding.' ” Rizzo v.
Sheahan, 266 F.3d 705, 714 (7th Cir. 2001) (citation
omitted). “A consent decree is res judicata and thus
bars either party from reopening the dispute by filing a
fresh lawsuit. Alternatively, it is a contract in which the
parties deal away their right to litigate over the subject
matter.” United States v. Fisher, 864 F.2d
434, 439 (7th Cir. 1988) (internal citations omitted). That
“another case is pending does not raise questions of
res judicata. Only a prior judgment is entitled to
preclusive effect.” Canedy v. Boardman, 16
F.3d 183, 185 (7th Cir. 1994) (emphasis in original). As
noted, the Prior Action remains pending. Further, although
deliberate indifference to Plaintiff's knee condition is
at issue in both cases, the cases involve different
defendants and the violations at issue here occurred at a
later time than the violations alleged in the complaint filed
in the Prior Case. Finally, the Court does not have access to
the parties' confidential settlement (which is not yet
final) and cannot make any determinations based on its
content. Accordingly, at this point in the litigation, the
Court cannot say that any of Plaintiff's claims are
precluded by the doctrine of claim preclusion or res
suffers from left knee pain and wears a knee brace for
stability. (Doc. 1, p. 4). In January 2015, Plaintiff was
issued a low bunk/low gallery permit and a knee brace permit.
(Doc. 1, p. 4; Doc. 1-1, p. 13). The expiration date for the
permit was January 15, 2016. (Doc. 1-1, p. 13).
30, 2015, Plaintiff was transferred to Menard's North II
segregation unit. Id. Upon arrival, Plaintiff was
placed in a shower to be strip searched. Id. Doe 1,
an unidentified cell house gallery officer, informed
Plaintiff that he had to remove his knee brace. Id.
Plaintiff explained that his knee caused him a lot of pain,
the knee brace was necessary for stabilization, and he showed
Doe 1 his knee brace permit. Id. Plaintiff also
explained that he had a low bunk/low gallery permit and could
not climb stairs due to his knee issues. Id. Doe 1
disregarded the Plaintiff, confiscated Plaintiff's knee
brace, and indicated he would speak with his sergeant
regarding Plaintiff's permits. Id. Plaintiff was
then cuffed from the back, making it difficult for him to
stand. Id. Thereafter, despite having a low bunk/low
gallery permit, Plaintiff was housed in gallery 4. (Doc. 1,
p. 5). As a result, Plaintiff had to climb stairs without his
2, 2015, Doe 2, a second unidentified cell house gallery
officer, informed Plaintiff he was being transferred to
gallery 8. Id. Plaintiff informed Doe 2 that he
could not climb that many stairs because of his knee, hip,
and back problems. Id. He also informed Doe 2 that
his knee brace had been taken and that he had a knee brace
permit and a low bunk/low gallery permit. Id. Doe 2
asked to review Plaintiff's permits. Id. After
reviewing Plaintiff's permits, Doe 2 indicated he would
speak with Pelker, a sergeant. Id. Doe 2 then left
to speak with Pelker. Id. Upon returning, Doe 2
informed Plaintiff that Pelker “doesn't
care.” Id. Plaintiff requested to speak with a
lieutenant and asked for his knee brace to be returned.
Id. Doe 2 denied both requests. Id.
Plaintiff was then handcuffed from the back and forced to
climb stairs, from gallery 4 to gallery 8, without his knee
brace. Id. The move caused Plaintiff severe pain and
caused his knee to swell. Id. After reaching gallery
8, Plaintiff informed Doe 2 that he was in pain and that his
knee was swelling. Id. Plaintiff asked Doe 2 to
notify medical staff. Id. Plaintiff's request
repeated requests to various Defendants, Plaintiff's knee
brace was not returned until August 17, 2015 (a total of 49
days). (Doc. 1, pp. 6-7). See also (Doc.
1-1 p. 8, inmate personal property receipt noting knee brace
was returned on 8/17/15). Plaintiff specifically references
having detailed face-to-face conversations with and/or
submitting detailed letters and/or grievances to the
(1) Officer Shemoney (Doc. 1, pp. 6-7);
(2) Kirk (Doc. 1, pp. 6-7; Doc. 1-1, p. 6);
(3) Pelker (Doc. 1, pp. 6-7, 11; Doc. 1-1, p. 3);
(4) Butler (Doc. 1, p. 10; Doc. 1-1, p. 1, 4);
(5) Watson (Doc. 1, p. 10; Doc. 1-1, p. 2, 5); and
(6) Hassameyer (Doc. 1, p. 11; Doc. 1-1, p. 7).
On August 10, 2015, Plaintiff filed a grievance regarding his
confiscated knee brace and prison officials' refusal to
honor his knee brace and low bunk/low gallery permits. (Doc.
1, p. 2; Doc. 1-1, p. 16).
Plaintiff was without his knee brace, Plaintiff was in severe
pain, suffered from a swollen knee, and was often restricted
to his bed. (Doc. 1, pp. 6-7). After Plaintiff's brace
was returned, Mike, a medical technician, and Meyer, a
Lieutenant, came to Plaintiff's cell and informed
Plaintiff he would have to sign a new permit - even though
the original permit was still valid. (Doc. 1, p. 7). The new
permit did not have a low gallery authorization. Id.
Plaintiff refused to sign the new permit because it did not
have a low gallery authorization, his prior permit was still
valid, and Meyer's explanations for why a new permit was
necessary did not make any sense. Id. When Plaintiff
refused to sign the new permit, Meyer got angry and said,
“If you do not sign that permit you will have problems
back here.” Id.
refusing to sign the permit, Plaintiff was escorted to the
medical unit. (Doc. 1, p. 8). Trost and Mike were present.
Id. Trost inquired about why Plaintiff was refusing
to sign the new permit, and Plaintiff explained himself.
Id. Trost indicated that he did not have any skin in
the game, and he was only trying to help Plaintiff.
Id. Plaintiff then asked Trost why Trost had refused
to help Plaintiff in the past when Plaintiff was seen
regarding his knee pain. Id. Trost encouraged
Plaintiff to sign the permit. Id. Trost also
indicated that if Plaintiff would sign the permit, Trost
would review Plaintiff's medical records and see what he
could do for Plaintiff. Id. Plaintiff continued to
refuse to sign the permit. (Doc. 1, p. 9). Trost then offered
to order Plaintiff a new brace, increase Plaintiff's
naproxen dosage to 750 mg., and inquire about physical
therapy. Id. See also (Doc. 1-1, pp. 11-12).
However, Trost's offer was conditioned on Plaintiff
signing the permit. Id. Trost also noted that if
Trost followed through on his offer, Plaintiff's prior
grievance regarding his knee brace and low gallery
permit “should be void right?” Id.
August 19, 2015, Plaintiff was informed by Officer Shemoney
that he was being transferred to a new cell. (Doc. 1, p. 12).
Plaintiff asked why he was being transferred, and Officer
Shemoney stated the decision came from a “higher
authority.” Id. The new cell was more
restrictive than Plaintiff's previous cell. Id.
The cell had solid steel across the front and did not allow
any fresh air to enter the cell. Id. Plaintiff
claims he was transferred to this cell in retaliation for
filing grievances regarding his knee brace and/or for
refusing to sign a new permit. Id.
alleges additional constitutional violations after he was
released from segregation on September 23,
2015. (Doc. 1, p. 17). According to the
Plaintiff, when he was released from segregation he was
placed in a “high” aggression building in the
East cell house. Id. Plaintiff claims his assigned
aggression level did not warrant such a placement.
Id. Because of Plaintiff's disability and low
gallery permit, Plaintiff was housed in gallery 1. However,
the showers in the East cell house are located on gallery 5.
Id. Plaintiff alleges that his disability prevented
him from walking to gallery 5 and, as a result, he was unable
to attend showers for 390 days. Id. Plaintiff does
not identify any particular individuals in relation to these
states that his August 10, 2015 grievance was deemed an
emergency and ultimately resolved on March 7, 2016. (Doc. 1,
p. 2). A grievance response dated March 1, 2016 is attached
as an exhibit to the Complaint. (Doc. 1-1, p. 15). This
grievance was signed by Butler on March 7, 2016. Id.
The grievance response indicates it is in relation to
Plaintiff's August 10, 2015 grievance. The resolution
states as follows: “issue resolved as offender received
knee brace 8/17/15 and has low gallery/low bunk
seeks damages and injunctive relief. ...