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Cunningham v. Falmier

United States District Court, S.D. Illinois

April 3, 2017

TIMOTHY J. CUNNINGHAM, SR., # R-05718, Plaintiff,


          STACI M. YANDLE United States District Judge.

         Plaintiff 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.

         Under § 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. § 1915A(b).

         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 “no reasonable person could suppose to have any merit.” 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. 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).

         Although 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).

         Applying these standards, the Court finds that some of Plaintiff's claims survive threshold review under § 1915A.

         Counts 8-11

         Upon 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, [1] 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.

         The Complaint

         The portions of the Complaint (Doc. 2) that are relevant to Counts 8-11 above are as follows.

         Plaintiff 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.[2] 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 minutes.

         C/O 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.

         Plaintiff uses the ADA gym at Lawrence for exercise on a regular basis, for a 2-hour period each Friday.[3] (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.

         Plaintiff describes two incidents involving C/O Jenkins.[4] (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 ...

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