United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE
Juan J. Torres, an inmate of the Illinois Department of
Corrections (“IDOC”) who is currently
incarcerated at Pinckneyville Correctional Center, brings
this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983. Plaintiff's original
Complaint (Doc. 1) alleged that Dietary Supervisor Harris
violated his due process and equal protection rights, as well
as the Americans with Disabilities Act (ADA) and the
Rehabilitation Act (RA) by failing to provide him with a job
in dietary. That Complaint was dismissed for failure to state
a claim (Doc. 6), and Plaintiff was granted leave to file an
First Amended Complaint (Doc. 7), Plaintiff alleges warden
Scott Thompson and counselor Mr. Mericer denied him a job
because of his disability. He again asserts claims against
the defendants under the Fourteenth Amendment, the ADA, and
RA. Plaintiff seeks injunctive relief.
case is now before the Court for preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A. Under Section
1915A, the Court is required to screen prisoner complaints to
filter out non-meritorious claims. See 28 U.S.C.
§ 1915A(a). Any portion of a complaint that is legally
frivolous, malicious, fails to state a claim upon which
relief may be granted, or asks for money damages from a
defendant who by law is immune from such relief must be
dismissed. 28 U.S.C. § 1915A(b).
First Amended Complaint
makes the following allegations in the First Amended
Complaint: On August 1, 2018, Plaintiff sent a request to
counselor Mericer inquiring about possible jobs for
Plaintiff, who is wheelchair bound (Doc. 7, p. 7). Mericer
responded that Plaintiff could be approved for a porter or
laundry position but there were no ADA jobs in dietary
(Id. at pp. 7-8). Mericer did not mention in the
response whether she contacted dietary to inquire about job
availabilities (Id. at p. 9). On September 9, 2018,
Plaintiff filed a grievance about jobs at Pinckneyville. The
counselor responded that Plaintiff did not have an approved
vote sheet for jobs, and his criminal history prohibited him
from any available ADA jobs (Id. at p. 8). Warden
Thompson, who Plaintiff alleges is responsible for providing
ADA services, failed to provide Plaintiff with a job.
Plaintiff believes that Thompson and Mericer discriminated
against him because he is wheelchair bound and has a criminal
original Complaint alleged claims under the ADA and RA (Count
1), as well as claims for violations of his due process
(Count 2) and equal protection (Count 3) rights.
Plaintiff's First Amended Complaint indicates that he
only seeks to re-allege his equal protection claim in Count
3, but he also alleges that Thompson failed to provide him
with services in violation of the ADA. Plaintiff's
allegations, however, fail under either claim.
Court previously stated, the ADA does not apply to the
employment of prisoners (Doc. 6, p. 3). Starry v. Oshkosh
Correctional Institution, 731 Fed.Appx. 517 (7th Cir.
2018); Neisler v. Tuckwell, 807 F.3d 225, 227-28
(7th Cir. 2015). Thus, Plaintiff's allegations fail to
state a claim under the ADA and/or RA.
extent that Plaintiff seeks to raise an equal protection
claim, the allegations in his First Amended Complaint also
fail to state a claim. To state a claim for unconstitutional
discrimination, the Complaint must show “that he is a
member of a protected class, that he is otherwise similarly
situated to members of the unprotected class, and that he was
treated differently from members of the unprotected
class.” Brown v. Budz, 398 F.3d 904, 916 (7th
Cir. 2005). Here, Plaintiff merely states in conclusory
fashion that Thompson and Mericer discriminated against
Plaintiff because he is wheelchair bound and because of his
criminal history. Further, he has not alleged any personal
involvement by the defendants in denying Plaintiff a job.
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001) (quoting Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001)). He only alleges that Mericer
responded to his requests indicating what jobs were
available, not that she denied his request for a job. He
fails to allege that he spoke to Thompson about his job
request or that Thompson denied any requests for jobs made by
Plaintiff. Accordingly, Plaintiff again fails to state a
claim for violation of his equal protection rights.
Plaintiff's second attempt to provide the Court with
factual allegations that would state a claim. He fails to
offer any facts that would raise his claim to a viable
constitutional violation. The Court finds that any additional
amendment would be futile. Accordingly, the First Amended
Complaint, along with this action, will be DISMISSED
with prejudice. See Agnew v. NCAA, 683 F.3d
328, 347 (7th Cir. 2012); McCree v.
Grissom, 657 F.3d 623, 624 (7th Cir. 2011);
Garcia v. City of Chicago, Ill., 24 F.3d 966, 970
(7th Cir. 1994).
reasons set forth above, Plaintiffs First Amended Complaint
(Doc. 7) is DISMISSED with prejudice for
failure to state a claim upon which relief may be
granted. This shall count as a
“strike” for purposes of 28 U.S.C. 1915(g).
Plaintiff wishes to appeal this Order, he must file a notice
of appeal with this Court within thirty days of the entry of
judgment. Fed. R. App. P. 4(a)(1)(A). If Plaintiff does
choose to appeal, he will be liable for the $505.00 appellate
filing fee irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger,547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at
467. He must list each of the issues he intends to appeal in
the notice of appeal and his motion for leave to appeal
in forma pauperis. See Fed. R. App. P. 24(a)(1)(C).
A proper and timely motion filed pursuant to Federal Rule of
Civil Procedure 59(e) may ...