United States District Court, N.D. Illinois, Western Division
G. Reinhard, United States District Court Judge.
following reasons, defendant Wayne Steele's motion to
dismiss or sever claims III and IV  is denied.
case has a long procedural history, detailed in the
court's previous orders. See ; ;
. Familiarity with these matters is assumed. In relevant
part, on April 20, 2017, plaintiff filed his sixth amended
complaint , in which he named for the first time
defendant Wayne Steele, former Assistant Warden of operations
at Dixon Correctional Center. On June 5, 2017, Steele filed a
motion to dismiss the claims against him, or in the
alternative to sever the claims against him from those of the
other defendants , along with a memorandum in support
. On July 3, 2017, plaintiff filed a response in
opposition , on July 24, 2017, Steele filed a reply
, and on August 8, 2017, plaintiff filed a surreply
. These matters are now ripe for the court's review.
noted, this court has detailed the relevant facts of this
case in sufficient detail elsewhere, see ;
; , and as such familiarity with those facts is
assumed and the court will only detail those additional facts
relevant to the instant motion.
Sixth Amended Complaint, plaintiff alleges that he has at
various time been issued 6-month No Black Box permits, which
have occasionally been renewed and at other times have lapsed
for no medically relevant purpose, necessitating that
plaintiff undergo significant pain while he labors to have
the permit reissued.
October of 2016, plaintiff's No Black Box permit had
lapsed and he sought another one in January of 2017 from Dr.
Chamberlain, a medical professional at Dixon with the
authority to issue No Black Box permits. Dr. Chamberlain
denied plaintiff's request, informing him that new
policies promulgated by Steele and Dr. Chamberlain's
Wexford supervisors prevented him from doing so unless an
inmate had a broken wrist.
in March of 2017, Dr. Chamberlain did issue a new No Black
Box permit, after plaintiff showed obvious signs of harm from
wearing the Black Box. Between plaintiff's January
conversation with Dr. Chamberlain and the reissuance of the
No Black Box permit, plaintiff was forced to wear the Black
Box during medical writs. When plaintiff asked Dr.
Chamberlain in March why he had not issued plaintiff a No
Black Box permit in January, Dr. Chamberlain stated that he
had been following directives and pressure from Steele and
his Wexford supervisors, despite Dr. Chamberlain's belief
that plaintiff should never have been subjected to the Black
Box. Plaintiff also alleged that two other inmates were
issued No Black Box permits between October of 2016 and March
of 2017, despite not having broken wrists.
Sixth Amended Complaint, plaintiff raises an official
capacity claim against Steele, seeking a permanent injunction
preventing the use of the Black Box (Count III), and a
deliberate indifference Monell claim against Steele
in his individual capacity for promulgating and enforcing the
policy of not issuing No Black Box permits without evidence
that a plaintiff had a broken wrist.
motion to dismiss, Steele first argues that the official
capacity claim against him is moot because he no longer works
at Dixon. This argument is without merit, because the
official capacity claim is not against Steele himself and
thus can be substituted for the current Warden in his
official capacity. Steele also argues that the injunction
plaintiff seeks is moot, because he currently has a No Black
Box permit and any possibility of future harm is speculative.
This claim is without merit because plaintiff alleges a
repeated pattern of No Black Box permits lapsing over the
course of his incarceration without medical cause, which is
why he seeks a permanent injunction. This rises above the
level of speculation, at least for pleading purposes.
Steele argues that plaintiff has pleaded himself out of court
on his individual capacity Monell claims against
Steele, noting that plaintiff pointed to other inmates that
were given No Black Box permits without broken wrists, and
also that plaintiff was ultimately given a No Black Box
permit without a broken wrist.
plaintiff points out, however, to plead himself out of court
the complaint would need to allege “facts that
establish an impenetrable defense to its claims. Put slightly
differently, a plaintiff pleads himself out of court when it
would be necessary to contradict the complaint in order to
prevail on the merits.” See Epstein v.
Epstein, 843 F.3d 1147, 1150 (7th Cir. 2016) (finding
that “[a]lthough the defendants strenuously argue
otherwise, the emails attached to the complaint do
not conclusively defeat [the plaintiffs] allegation
that [the defendant] intercepted his emails contemporaneously
with their transmission.”).
plaintiff alleged that Steele promulgated and enforced
through pressure a policy that inmates should not be given No
Black Box permits without broken wrists. The allegations that
No Black Box permits were issued to other inmates and
eventually plaintiff himself do not conclusively prove that
the policy did not exist and exerted some pressure on Dr.
Chamberlain. It is consistent with plaintiffs allegations to
find that Steele implemented such a policy and that it caused
Dr. Chamberlain to deny plaintiffs request in January of
2017, but that Dr. Chamberlain ignored it in some instances,
such as when he issued plaintiff a permit in March of 2017
after seeing signs of plaintiffs deteriorating condition. At
this early stage, the court finds that plaintiffs allegations
are not such that he would necessarily have to contradict the
complaint in order to prevail on the merits.
court notes that Steele appears to assert in his reply that
plaintiff has alleged several possible constitutional claims
against Steele regarding different aspects of the Black Box
policy, each of which standing alone are potentially
insufficient. The court disagrees with defendant's
reading of the Sixth Amended Complaint. Moreover, the court
agrees with plaintiff that Steele's “divide and
conquer” mode of argument has been found improper by
the Seventh Circuit, see Engel v. Buchan, 710 F.3d
698, 709 (7th Cir. 2013), and imposes a higher pleading
standard than is ...