United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
STEPHEN C. WILLIAMS United States Magistrate Judge
se Plaintiff Kevin Phelps, an inmate currently
incarcerated at Lawrence Correctional Center, brought the
present lawsuit pursuant to 42 U.S.C. § 1983, the
Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101 et seq., and/or
Rehabilitation Act (“RA”), 29 U.S.C. §§
794-94e based on an incident that occurred while he was
incarcerated at Pinckneyville Correctional Center. (Doc. 1).
Plaintiff alleges constitutional violations on the part of
the Defendants' failure to protect him against an attack
by another inmate, despite prior knowledge that an assault
was likely. Plaintiff also alleges ADA and/or RA violations
claiming that Defendants discriminated against him and failed
to accommodate him due to his disability. Both counts brought
by Plaintiff in his initial Complaint survived the
Court's merits review (Doc. 10, p. 9), but Count 1 was
only allowed to proceed against Defendant Phillips and Count
2 was only allowed to proceed against Defendant Godinez in
his official capacity. (Id.). This matter is now
before the Court on Defendants' Motion for Summary
Judgment (Doc. 86).
preliminary matter, a discussion of Plaintiff's
counsel's actions is pertinent to to the Court's
consideration of Plaintiff's response to the summary
judgment motion. On February 18, 2015, the undersigned
appointed counsel to represent Plaintiff Phelps. (Doc. 40).
Counsel was to enter her appearance no later than February
25, 2015. (Id. at 2) Rather than following the
Court's directive, without having entered her appearance,
on January 14, 2016, counsel filed a motion seeking to
withdraw as counsel for Plaintiff on the grounds that she
failed to renew her admission to the bar for this district
court. (Doc. 49). That motion was denied, and the Court
allowed her to continue to represent Plaintiff even though
she had failed to renew her admission. (Doc. 50). Assigned
counsel still did not file her notice of appearance.
two months later, the Court entered an Order to Show Cause
that was at that time being entered as a matter of routine in
cases where counsel had failed to renew admission to this
bar. The order directed assigned counsel to show cause why
she should not be removed from the case for failure to renew.
(Doc. 51). Counsel responded by indicating that she did not
intend to renew and sought to withdraw from this matter.
(Doc. 52). The undersigned, however, deemed the show cause
order satisfied, indicating that counsel had previously been
allowed to represent Plaintiff, and that she “will be
permitted to continue representing Plaintiff.” (Doc.
53). Counsel still did not enter her appearance.
15, 2016, Defendants filed a motion for summary judgment.
(Doc. 62). No. response to this motion was filed, and on
November 16, 2016, the Court entered an order noting that it
had never granted counsel leave to withdraw and setting a
December 16, 2016 deadline for assigned counsel to respond to
the summary judgment motion and to enter her appearance.
(Doc. 65). The Court was later informed that counsel did not
receive notice of the November 16th order, as she had moved
to a different law firm and had failed to update her contact
information with the Court.
January 17, 2017, counsel finally entered her appearance on
behalf of Plaintiff and sought an extension of time to
respond to the summary judgment motion. (Docs. 67, 68). The
motion was granted on February 8, 2017, and because the
parties were to conduct additional discovery, Defendants were
allowed to file an amended summary judgment motion. (Doc.
re-filed their summary judgment motion, the motion now before
the Court, on May 22, 2017, and the Court set the motion for
a hearing on July 13th. (Docs. 86, 88). By July 5th, no
response had been filed, which prompted the Court to cancel
the hearing. (Doc. 89). The Court indicated that due to the
failure to respond, Plaintiff would be deemed to have
admitted to the merits of the motion in accordance with Local
Rule 7.1(g). Plaintiff then filed a Motion to Alter Judgment
and a Memorandum in Support. (Docs. 90, 91). Since the Court
had not entered judgment, it mooted the motion; however, it
indicated that it would consider the motion and memorandum in
support as a response to the summary judgment motion. (Doc.
to the summary judgment motion, Defendants assert that they
are entitled to judgment as a matter of law on all counts.
For the reasons set forth below, the Court
GRANTS Defendants' Motion for Summary
Judgment (Doc. 62).
suit stems from an incident that occurred on July 6, 2013
when Plaintiff was incarcerated at Pinckneyville Correctional
Center. On that date Plaintiff was confined in cell R1-B-16.
(Doc. 87-2, p. 3). According to Larue Love, who was employed
in the position of Assistant Warden of Programs at
Pinckneyville Correctional Center, the cell in which
Plaintiff was housed was wheelchair accessible and provided
accommodations in compliance with the ADA. (Doc. 87, p. 4).
Such wheelchair-accessible cells are larger in size than
other general population cells. (Id.).
Wheelchair-accessible cells are 131.125 square feet in size,
and have a wider entryway, amenities positioned lower to the
ground, and support bars on the walls. (Id.).
General population cells that are not wheelchair accessible
are 57.375 square feet in size, and do not have the added
accommodations that wheelchair-accessible cells have.
6, 2013, inmates Charlie Moreno, Donnell Clark, and Lester
Aldridge were housed in the same cell as Plaintiff.
(See Doc. 87-3, p. 1 - 2). Moreno and Clark were
assigned as Housing Unit Attendants where they were to assist
inmates with disabilities with a variety of tasks.
(Id. at 6 - 7; Doc. 87-2, p. 2). On July 6, 2013,
Defendant Phillips was assigned to the R1 cell house during
the 3 p.m. to 11 p.m. shift. (Doc. 87-1, p. 1).
roughly 10:30 p.m., Defendant Phillips went to
Plaintiff's cell in response to the emergency call button
being activated from within the cell. (Id. at 2).
According to Defendant Phillips, when he arrived at
Plaintiff's cell, he was informed that Plaintiff and
inmate Moreno were having problems with one another, and
inmate Moreno told Defendant Phillips that he was going to
hit Plaintiff if they were not separated. (Id.).
Defendant Phillips indicates that he then called the zone
lieutenant, but before the lieutenant arrived, Moreno punched
Plaintiff and threw him out of the wheelchair.
(Id.). Phillips then called a “10-10, ”
which is the radio code for an emergency. (Id.).
Other security staff responded and Plaintiff and inmate
Moreno were separated and placed on investigative segregative
only “record” cited to by Plaintiff in his
response is his Complaint. Plaintiff provides no evidence in
opposition to the motion. According to the allegations in
Plaintiff's complaint, when Defendant Phillips arrived at
Plaintiff's cell, Plaintiff told Phillips that another
inmate was threatening to harm him, and asked Phillips to
remove one of them from the cell. (Doc. 1, p. 5). Plaintiff
also requested that Phillips call for a Lieutenant; however,
according to Plaintiff, Phillips refused, stating that
everyone was getting ready to go home. (Id. at 5 -
6). After telling Phillips that he was afraid for his safety,
Phillips told Plaintiff, “you're a big boy, you can
handle the ass-kicking.” (Id. at 6). According
to Plaintiff, the other inmate then asked if Phillips was
going to move either one of the inmates, and the defendant
stated “I ain't moving nobody[.] [I]f you going to
do something, do it.” (Id.). The other inmate
then told Phillips that he was going to assault Plaintiff,
and Phillips responded by saying “I've been
standing here for about 15 minutes and you ain't did
shit.” (Id.). At that point, Plaintiff was