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Haywood v. Feinerman

United States District Court, S.D. Illinois

July 30, 2019

JOHN D. HAYWOOD, Plaintiff,



         I. Introduction and Background

         The case has been referred to United States Magistrate Judge Gilbert C. Sison by District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b) and SDIL-LR 72.1(a) for a Report and Recommendation.[2]Based on the following, the undersigned recommends that Judge Gilbert DENY the motion to dismiss (Doc. 36).

         On January 4, 2018, Plaintiff John D. Haywood, an inmate housed at the Lawrence Correctional Center (“Lawrence”), filed a civil rights action pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated while he was incarcerated at Menard Correctional Center (“Menard”) (Doc. 1). On March 1, 2018, the Court screened Haywood's complaint pursuant to 28 U.S.C. § 1915A and severed his claims into several cases, the following claims survived review and remained in this case:

Count 3: Eighth Amendment deliberate indifference claim against Feinerman for taking away Plaintiff's braces and wheelchair at Menard in November 2007; and
Count 4: First Amendment retaliation claim against Feinerman for taking away Plaintiff's wheelchair after Plaintiff complained to the Warden about Feinerman taking his braces upon his arrival at Menard in November 2007.

(Doc. 14).

         As to those claims that survived review, the Court recited the following facts:

Plaintiff's narrative resumes with his arrival at Menard in November 2007. (Doc. 1, p.6). He had suffered a re-injury to his back in 2006 which left him paralyzed again. In addition to the partially amputated left foot, Plaintiff had suffered a fractured “heel bell” on his left foot in 2005 and a fractured tibia in 2001. Id. When Plaintiff came to Menard, he had a “weight displacement brace” and a “chair back brace” for his wheelchair. Id. Dr. Finnerman took both braces away, and told Plaintiff that due to his maximum security classification and the fact that Menard was not an accessible facility, he (with his wheelchair) would be housed in a nonhandicapped-accessible area of the Health Care Unit.
Plaintiff wrote to Warden Conder seeking an emergency medical transfer to Big Muddy. Conder/Conners replied that Plaintiff must remain at Menard for 6 months before he could request a transfer. The next day, Dr. Finnerman told Plaintiff to pack his things, because “nobody goes over his head.” (Doc. 1, p. 6). Finnerman took away Plaintiff's wheelchair, and sent him away from the Health Care Unit to the North One housing area. Plaintiff was forced to crawl along the floor under threat to be placed in segregation if he did not make it to North One on time, based on Finnerman's orders. A Lieutenant went to Health Care to get a wheelchair for Plaintiff, but was told that Finnerman would not allow it. The Lieutenant then obtained a cart to transport Plaintiff to North One, but when he arrived there, he was forced to crawl up the stairs to the third floor cell. Workers then put Plaintiff on a “gallery cart” to bring him to his cell. (Doc. 1, p. 7).
In December 2007, Plaintiff was moved to a first floor cell at Menard, and was placed on “Permanent Lay-in, ” which lasted until March 2016. Based on the lay-in status, Plaintiff did not go to yard, chow hall, gym, chapel, commissary, or the law library. He was never provided with a wheelchair for daily use, and the only time he was given a wheelchair was to go to health care visits. (Doc. 1, p. 7). He describes one incident after a blizzard in February 2008, when he was taken to Health Care in an ATV-ambulance. Dr. Finnerman yelled at Plaintiff, telling him he never had cancer. Finnerman ordered the officers not to use the ambulance to move Plaintiff. After the Sergeant responded that he would use the ambulance any time he wanted, Finnerman got rid of the ambulance 2 weeks later. (Doc. 1, p. 7).

(Doc. 14, pgs. 3-5) (footnote omitted).

         II. Analysis

         Dismissal based on a statute of limitations is an affirmative defense. See Fed. R. Civ. Proc. 8(c)(1). Generally, “complaints do not have to anticipate affirmative defenses to survive a motion to dismiss.” United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). “But when a plaintiff's complaint nonetheless sets out all of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012). See also Jones v. Bock, 549 U.S. 199, 215 (2007)(stating that “[i]f [a complaint's] allegations . . . show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim.”). When considering a motion to dismiss, courts “accept the well-pleaded facts in the complaint as true[.]” Alam v. Miller Brewing Co., 709 F.3d 662, 665-666 (7th Cir. 2013). The Court must also “draw all reasonable inferences from those facts in favor of the plaintiff.” Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015). Complaints filed by pro se litigants must furthermore be liberally ...

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