United States District Court, S.D. Illinois
JOHN D. HAYWOOD, Plaintiff,
ADRIAN FEINERMAN, Defendant.
REPORT AND RECOMMENDATION
GILBERT C. SISON UNITED STATES MAGISTRATE JUDGE.
Introduction and Background
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.Based on the following, the undersigned
recommends that Judge Gilbert DENY the
motion to dismiss (Doc. 36).
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.
those claims that survived review, the Court recited the
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).
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 ...