United States District Court, S.D. Illinois
TIMOTHY J. CUNNINGHAM, SR., # R-05718, Plaintiff,
C/O FALMIER, C/O JENKINS, LT. CARRIE, C/O SIMMS, C/O SANDERS, C/O TANNER, C/O BRUNNER, C/O BRIDWELL, C/O JOHNSON, C/O DUNLAP, WARDEN DUNCAN, and WARDEN LAMB, Defendants.
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
is currently incarcerated at Lawrence Correctional Center
(“Lawrence”), where he is serving a life
sentence. He originally brought the claims in this pro
se civil rights action in Case No. 16-cv-1360-MJR on
December 19, 2016. On February 8, 2017, the Court severed
that action into several separate cases. (Doc. 1). The
instant case contains the claims designated as Counts 8-11,
which address several alleged violations of Plaintiff's
rights in connection with his needs as a person with
disabilities. This matter is now before the Court for a
preliminary merits review pursuant to 28 U.S.C. § 1915A.
§ 1915A, the Court is required to screen prisoner
complaints to filter out non- meritorious claims.
See 28 U.S.C. § 1915A(a). The Court must
dismiss any portion of the complaint that is legally
frivolous, malicious, fails to state a claim upon which
relief may be granted, or asks for money damages from a
defendant who by law is immune from such relief. 28 U.S.C.
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 “no
reasonable person could suppose to have any merit.”
Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir.
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. Conversely, a complaint is plausible on
its face “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir.
2011), some factual allegations may be so sketchy or
implausible that they fail to provide sufficient notice of a
plaintiff's claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Additionally, Courts “should not
accept as adequate abstract recitations of the elements of a
cause of action or conclusory legal statements.”
Id. At the same time, however, the factual
allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
these standards, the Court finds that some of Plaintiff's
claims survive threshold review under § 1915A.
initial review, the Court characterized the claims in Counts
8-11 as follows. The parties and the Court will use these
designations in all future pleadings and orders in this case,
unless otherwise directed by a judicial officer of this
Court. The designation of these counts does not constitute an
opinion as to their merit. Any other claim that is mentioned
in the Complaint but not addressed in this Order should be
considered dismissed without prejudice.
Count 8 - Falmier did not accommodate
Plaintiff's disability pursuant to the Americans with
Disabilities Act (ADA) in order to allow him to use the phone
on equal terms as non-disabled inmates;
Count 9 - Duncan and Lamb failed to
adequately regulate the temperature in the A.D.A. gym at
Lawrence Correctional Center from March 11, 2016 through
September 16, 2016, causing it to be excessively hot in
violation of the Eighth Amendment's prohibition on cruel
and unusual punishment;
Count 10 - Jenkins failed to accommodate
Plaintiff's disability pursuant to the ADA when he
transported him on February 10, 2015 and March 28, 2015,
causing Plaintiff to wet himself and suffer humiliation;
Count 11 - Carie, Simms, Sanders, Tanner,
Brunner,  Jenkins, Bridwell, Johnson, and Dunlap
retaliated against Plaintiff for filing grievances in
violation of the First Amendment by denying him ice
distribution between June 19, 2015 and October 22, 2015,
conducting compliance checks, and cutting short meal times.
portions of the Complaint (Doc. 2) that are relevant to
Counts 8-11 above are as follows.
was transferred from the Pinckneyville Correctional Center to
Lawrence on September 25, 2014. (Doc. 2, p. 6). On
Plaintiff's housing wing, inmates were allowed to leave
their cells and access the telephones at certain times, but
literally raced to the phones so as to be first in line to
use them. The inmates who “won” the race
would then pass off the phone to their friends or gang
cohorts. (Doc. 2, p. 10). Because of Plaintiff's physical
limitations (he uses a wheelchair for mobility), he could
never get to a phone in time to use it before the allotted
time expired. Able-bodied inmates could access the phones 3-6
times per week and were allowed to stay on a call for 30
Falmier (a Pinkneyville officer) recognized Plaintiff's
inability to access the phone and allowed him to come out of
his cell at other times to make a call. However, he limited
him to 15 minutes and made this accommodation only once per
month. Otherwise, Plaintiff would have to pay $0.50 per call
or $3.00 per month to have more access to the phone.
Plaintiff points out that under the ADA (Americans with
Disabilities Act), handicapped individuals should have equal
access to services such as telephone use. Nonetheless, he was
never allowed the same access to the phone as able-bodied
inmates enjoyed. Plaintiff filed a grievance over this
problem on September 23, 2014.
uses the ADA gym at Lawrence for exercise on a regular basis,
for a 2-hour period each Friday. (Doc. 2, pp. 15-16; Doc.
2-10, pp. 3-6). From March 11 to September 16, 2016, the
heaters in the ADA gym were “pumping out heat”
despite the blowers being off. As a result, temperatures
inside the gym were 15-20 degrees above the outside
temperatures. The gym next door for able-bodied inmates was
equipped with a large fan to relieve the heat, but the ADA
gym was not. Plaintiff complained and filed grievances, but
the conditions were never corrected. His 2 grievances were
directed to the Warden (either Duncan or Lamb). (Doc. 2-10,
pp. 3, 5). In addition to the differential treatment of
disabled inmates, Plaintiff asserts that the overheated ADA
gym conditions amounted to cruel and unusual punishment.
describes two incidents involving C/O Jenkins. (Doc. 2, p. 11).
On February 10 and March 27, 2015, Jenkins transported
Plaintiff in a wheelchair van to a doctor visit in Mt.
Vernon, an hour and a half drive from the prison. (Doc. 2-8,
p. 7). Due to his disability, Plaintiff is incontinent and
uses adult diapers and a urinal to maintain his personal
hygiene. Jenkins would not allow Plaintiff to use a urinal,
and kept Plaintiff's hands in “black box”
restraints which prevented him from handling a urinal. (Doc.
2-8, pp. 7-8). As a result, during the trip to the
doctor's office and back, Plaintiff urinated on himself
beyond the capacity of the adult diaper, wetting his clothes
and leaving puddles on the floor. When Plaintiff returned to
Lawrence, other officers kept him waiting and then sent him
to the chow hall still wet and “smelling ...