United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE.
Barry Morris, an inmate in Menard Correctional Center, brings
this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983, The Americans with
Disabilities Act (“ADA”), and the Rehabilitation
Act (“RA”). Plaintiff seeks injunctive relief and
damages. This case is now before the Court for a preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915A,
(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.
careful review of the Amended Complaint and any supporting
exhibits, the Court finds it appropriate to exercise its
authority under § 1915A; portions of this action are
subject to summary dismissal.
originally filed suit in Case No. 17-cv-852-DRH with
co-plaintiff Scott Peters. After the Court warned Plaintiff
about the difficulties of proceeding in concert with another
inmate, Plaintiff informed the Court that he wished to
proceed separately, and these claims were severed into a new
action on September 26, 2017. (Doc. 1). Plaintiff was also
granted leave to file an amended complaint, which he did on
October 4, 2017. (Doc. 11).
Amended Complaint alleges that Plaintiff is being denied
reasonable accommodation under the ADA and the RA. (Doc. 11,
p. 3). Plaintiff suffers from a herniated disc and severe
spinal stenosis, nerve damage in his right hand/arm, which is
also partially paralyzed, benign prostatic hyperplasia (an
enlarged prostate), and high blood pressure. (Doc. 11, p.
14). Plaintiff informed the defendants about his disabilities
via letters and grievances. (Doc. 11, p. 3). Plaintiff
alleges that he was deprived of reasonable accommodations for
his disabilities, and access to prison activities and
opportunities. (Doc. 11, p. 4). Plaintiff also alleges that
the refusal to accommodate his disability puts him at
substantial risk of serious harm, and thus, that Defendants
are deliberately indifferent. (Doc. 11, pp. 4-5). Menard is
not ADA compliant, and is the only facility in the state of
Illinois that does not permit assistive-walking devices in
general population. (Doc. 11, p. 14).
Plaintiff alleges that his disabilities allow him to use
crutches, but Menard as an institution does not permit the
use of crutches unless an inmate is confined to the health
care unit. (Doc. 11, p. 6). Walking with crutches provides
Plaintiff with exercise that he is deprived of when confined
to a wheelchair. (Doc. 11, p. 17). The health care unit
cannot house all the inmates that need crutches or other
walking devices. (Doc. 11, pp. 6-7). Plaintiff was also
prohibited from attending night yard, meals in the cafeteria,
and mental health therapy. (Doc. 11, p. 7). The commissary is
not ADA accessible, and Plaintiff cannot attend because his
wheelchair cannot fit. Id. Plaintiff must order his
commissary items and accept or reject the entire order
without substitutions, even if certain items are unavailable.
is allowed to attend yard, but once he reaches the yard, his
wheelchair is taken from him and he is forced to sit at a
table for 3 hours. (Doc. 11, pp. 7-8). Plaintiff has been
told to call the tower if he needs to use the restroom or the
phone, but the tower has ignored his requests and told him
they won’t respond to him unless it’s an
emergency. (Doc. 11, p. 8).
is no ramp to the personal property building, so if Plaintiff
attends, he must carefully negotiate the 8-10 steps.
Id. Plaintiff needs access to the personal property
building because his excess legal boxes are stored there.
also cannot participate in programs at the school building
because it is located on the second floor. Id. The
school has an elevator, but Plaintiff is prohibited from
using it. Id. Menard also has a program where it
offers inmates MP3 players with text capabilities, but
Plaintiff cannot access the “sinc” machines that
make the music and texts available because they are only
available at the gym and commissary. Id.
also has nerve damage in his right arm/hand. (Doc. 11, p. 9).
On October 31, 2016, the medical director gave Plaintiff a
medical permit requiring that prison staff use waist chains
when transporting Plaintiff. Id. Plaintiff alleges
that Defendants disregarded this order and continued to use a
box and chain set on Plaintiff, causing more nerve damage to
his right arm and hand. Id. Wexford has further
denied a recommendation to send Plaintiff out to a
neurologist to assess the damage. Id. Plaintiff
alleges he sent an emergency grievance to Lashbrook on August
19, 2017, and that she failed to respond to the grievance.
(Doc. 11, pp. 9-10).
alleges that Lashbrook, Miluer, and Meyers inflicted severe
emotional distress on Plaintiff when they told him he would
be transferred. (Doc. 11, p. 10-11). Allegedly, on June 6,
2017, Miluer stopped Plaintiff and told him that he had
talked with the Warden and they agreed to transfer Plaintiff
out of Menard if he stopped writing grievances. (Doc. 11, p.
11). Plaintiff wrote several letters to Miluer in June and
July 2017, but all of those letters went unanswered.
Id. On July 2, 2017, Dr. Baig stopped by
Plaintiff’s cell and reiterated that Plaintiff would be
transferred soon. Id. Three days later on July 5,
Plaintiff wrote to Meyer and asked when he would be
transferred, and Meyer told Plaintiff that he had never been
submitted for a transfer. Id. Meyer came by
Plaintiff’s cell on July 14, 2017 and told him that she
would submit him for a medical transfer, but told Plaintiff
“don’t hold your breath.” (Doc. 11, p. 12).
Meyer sent Plaintiff correspondence on August 9, 2017 telling
Plaintiff that he was denied transfer. Id. Meyer
later told Plaintiff that she did not put him in for a
medical transfer because she could not get health care
services to sign off on it. Id.
also alleges that he is exposed to unconstitutional
conditions of confinement. Specifically, he alleges that he
was doubled up in a cell meant for a single inmate. (Doc. 11,
p. 17). He also alleges that the showers have black mold and
lack handrails or ADA shower chairs, the cells are not
wheelchair accessible, sinks and toilets are not wheelchair
accessible, and that many of the buildings lack ADA ramps.
(Doc. 11, p. 18).
alleges that Menard has inadequate medical staffing, which
has caused medical passes to be cancelled. Id.
Plaintiff has had to wait for medical treatment. Id.
Plaintiff further alleges that Defendants routinely ignored
medical orders and/or refused to respond to Plaintiff’s
request for treatment for all of Plaintiff’s medical
conditions and accommodations. (Doc. 11, p. 16). Wexford
denied a referral to a neurologist for Plaintiff on August 9,
2017. Id. Plaintiff wrote an emergency grievance to
Lashbrook on August 9, 2017, and followed up with two
“status letters.” Id. No response was
on the allegations of the Complaint, the Court finds it
convenient to divide the pro se action into 7 counts. The
parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a