IN THE UNITED STATES DISTRICT COU RT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

ASHOOR RASHO, FAYGIE FIELDS, BRIAN NELSON )

and ROBERT BOYD, Individually and on behalf of the )

plaintiff class,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD N. SNYDER, JR. Director, Illinois Department of )

Corrections, WILLARD O. ELYEA, M.D., Medical Director,)

Illinois Department of Corrections; DR. DENNIS HOPKINS,)

Chief of Mental Health Services, Illinois Department

)

of Corrections; GEORGE E. DeTELLA, Associate Director, )

Illinois Department of Corrections, GEORGE WELBORN, )

Warden, Tamms Correctional Center; MARVIN POWERS, )

M.D., Medical Director, Tamms Correctional Center;

)

KELLY RHODES, Ph.D., Supervising Clinical

)

Psychologist, Tamms Correctional Center, RAKESH

)

CHANDRA, M.D., Psychiatrist, Tamms Correctional

)

Center; and ILLINOIS DEPARTMENT of CORRECTIONS,

a public entity,

)

)

Defendants. )

NO. JURY DEMAND )

COMPLAINT Plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd, current and former prisoners at the closed maximum security facility at Tamms Correctional Center (“Tamms”), on their own behalf and on behalf of all seriously mentally ill prisoners who are now, have been before, or will be hereafter incarcerated at Tamms, for their complaint against defendants Donald N. Snyder, Jr., Director of the Illinois Department of Corrections (“the Department”); Willard O. Elyea, M.D., Medical Director of the Department; Dr. Dennis Hopkins, Chief of Mental Health Services of the Department; George E. DeTella, Associate

Director of the Department; George Welborn, Warden of Tamms; Marvin Powers, M.D., Medical Director of Tamms (“Dr. Powers”); Kelly Rhodes, Ph.D., Supervising Clinical Psychologist of Tamms (“Dr. Rhodes”); Rakesh Chandra, M.D., Psychiatrist at Tamms (“Dr. Chandra”) (collectively, the “individual defendants”); and the Department, a public entity, state as follows:
NATURE OF THE ACTION 1. This is a class action lawsuit brought pursuant to 42 U.S.C. § 1983 to redress violations of the plaintiffs’ rights (1) under the Eighth and Fourteenth Amendments to the U.S. Constitution to be free of cruel and unusual punishment while they are incarcerated at Tamms and (2) under the Fourteenth Amendment to receive individualized mental health treatment by professionals exercising professional judgment, and pursuant to the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131, et seq., and the Rehabilitation Act (the “Rehab Act”), 29 U.S.C. § 794, to be free of discrimination on account of their disabilities. Plaintiffs seek damages from the individual defendants, who are employees or agents of the Department; a judgment declaring the defendants’ acts unconstitutional and violative of the ADA and the Rehab Act; and an injunction directing them to halt their unlawful conduct.
INTRODUCTION 2. In this lawsuit, seriously mentally ill prisoners at Tamms seek relief for defendants’ deliberate indifference to their mental health needs and for the cruel and unusual punishment of requiring them to live under the harsh and psychologically injurious conditions at Tamms while they are seriously mentally ill, as well as relief for defendants’ failure to grant them individuated mental health treatment at Tamms and defendants’ failure to grant them their right to be free of discrimination on account of their disabilities under the ADA and the Rehab Act. The individual
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defendants are the Department officials responsible for deciding which prisoners are sent to Tamms, establishing and maintaining conditions there, and providing medical and mental health services there. The Department, a public entity, is sued based on the ADA and the Rehab Act. Tamms is a so-called supermax prison that practices behavior modification through sensory deprivation based on the near-total isolation of the inmate – a practice whose destructive effects are well documented. As harmful as this experience is for most prisoners, it is more agonizing for the seriously mentally ill, many of whom reside in Tamms and who comprise the class of plaintiffs. For seriously mentally ill prisoners, the conditions at Tamms – extreme social isolation, restricted environmental stimulation, severely restricted movement, and harsh punishment for problematic behavior caused by their illnesses – bring tormenting pain. The damage done by these conditions is likely to be long-term and may be permanent. As such, it harms society as well as these prisoners. This is so because most of the seriously mentally ill prisoners at Tamms eventually will be released from prison and will return to the streets sicker, angrier, and more violent. In the end, society at large will pay the price for the unlawful treatment of seriously mentally ill prisoners at Tamms.
JURISDICTION AND VENUE 3. The court has jurisdiction of this cause pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). Declaratory relief is sought pursuant to 28 U.S.C. §§ 2201 and 2202. Venue is proper in the Southern District of Illinois under 28 U.S.C. § 1391(b) because at least one of the defendants resides in the District and a substantial part of the events and omissions giving rise to plaintiffs’ claims occurred in the District.
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EXHAUSTION OF ADMINISTRATIVE REMEDIES 4. On about October 22, 1999, to November 1, 1999, the named plaintiffs filed grievances complaining that the conditions and mental health treatment at Tamms violated the Eighth Amendment and that defendants’ discrimination against them on account of their mental disabilities violated the ADA and the Rehab Act. The grievances particularized these complaints by attaching copies of the amended complaint in Boyd v. Snyder, 99 280 DRH (filed January 9, 1999, and dismissed without prejudice on June 6, 2000), which contains claims substantially similar to those in this lawsuit. Copies of the grievances are attached as Ex. A. 5. On March 24, 2000, plaintiffs’ counsel sent a letter to Defendant Snyder asking him to act on these grievances. A copy of that letter is attached as Ex. B. On April 12, 2000, a representative of Defendant Snyder sent a letter to plaintiffs’ counsel denying the grievances. A copy of the letter is attached as Ex. C. 6. Therefore, plaintiffs had exhausted their administrative remedies for all claims in this lawsuit.
CLASS ACTION ALLEGATIONS 7. This action is brought by the named plaintiffs on behalf of all prisoners who are now, have been before, or will be hereafter incarcerated at Tamms who have serious mental illnesses, defined as a substantial disorder of thought or mood which significantly impairs the judgment, behavior, and capacity to recognize reality or cope with the ordinary demands of life within the prison environment and is manifested by substantial pain or disability. A class action is proper pursuant to Rules 23(a), 23(b)(1), 23(b)(2), and 23(b)(3) of the Federal Rules of Civil Procedure.
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8. Members of the class on behalf of whom plaintiffs sue are so numerous that joinder of all members is impractical. Seriously mentally ill prisoners account for approximately 10 to 20 per cent of the population at Tamms, which today is approximately 270 and may rise to as high as 480. The class also includes at least 17 prisoners previously housed at Tamms who were transferred to the Department’s mental health unit (at Dixon Correctional Center) because of serious mental crises they had while at Tamms. Adding to the impracticality of joinder is the constant change in the inmate population at Tamms and the undesirability of subjecting countless prisoners to similar conditions before a court could conduct trials on individual claims.
9. There are common questions of law and fact affecting the rights of seriously mentally ill prisoners to be free from unconstitutional cruel and unusual punishment. The claims of the class members involve common fact questions, as does the inquiry into the nature of the overall mental health care system. The common legal questions include whether the mental health care system comports with constitutional standards, whether subjecting seriously mentally ill prisoners to the conditions at Tamms constitutes cruel and unusual punishment, whether Tamms prisoners are receiving individuated mental health treatment, and whether defendants are discriminating against class members on account of their disabilities.
10. Plaintiffs’ claims are typical of the claims of the class, and plaintiffs can fairly and adequately represent and protect the interests of the class.
11. Separate injunctive and declaratory actions maintained by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class, thereby establishing incompatible standards of conduct for defendants. Adjudication regarding individual class members would, as a practical matter, be dispositive of
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or impair the interests of other members not parties to the adjudication or substantially impair their ability to protect their interests.
12. Defendants have acted or refused to act on grounds generally applicable to the class that plaintiffs represent, thereby making final injunctive or corresponding declaratory relief appropriate for the class as a whole.
13. The questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
PARTIES Plaintiffs 14. Plaintiff Ashoor Rasho has been incarcerated at Tamms since about March 26, 1998. He suffers from a serious mental illness and has done so for many years. 15. Plaintiff Faygie Fields has been incarcerated at Tamms since about March 11, 1998. He suffers from a serious mental illness and has done so for many years. 16. Plaintiff Brian Nelson has been incarcerated at Tamms since about April 27, 1998. He suffers from a serious mental illness that began while he was at Tamms. 17. Plaintiff Robert Boyd was incarcerated at Tamms from about April 1, 1998, to on or about July 22, 1999, when he was transferred to the mental health unit at Dixon Correctional Center. He suffers from a serious mental illness and has done so for many years. Defendants 18. The Department is an Illinois State department that is responsible for the care, custody, treatment, and rehabilitation of all persons committed to its custody, and for all Illinois correctional institutions.
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19. Defendant N. Donald Snyder, Jr. is Director of the Department and has overall responsibility for the administration of all correctional facilities within the state. He has personal, first-hand knowledge of the operations of Tamms. He resides in Springfield, Illinois.
20. Dr. Elyea is the Medical Director of the Department and, as such, has overall responsibility for providing health care to prisoners of Tamms, including mental health care. He resides in Chicago, Illinois.
21. Dr. Hopkins is Chief of Mental Health Services of the Department and, as such, has overall responsibility for providing mental health care to prisoners of Tamms. He resides in Cook County, Illinois.
22. George E. DeTella is Associate Director of the Department and, as such, has overall responsibility for deciding who is transferred into Tamms. Defendant DeTella has personal knowledge of most transfer decisions, including the decision to transfer many of the seriously ill prisoners who have been sent to Tamms.
23. George Welborn is the Warden of Tamms. Warden Welborn is the chief administrative officer of Tamms and, as such, has ultimate responsibility for the entire operation of the institution, including implementing all state laws and the Department policies, practices, and procedures affecting prisoners confined at Tamms.
24. Dr. Powers is the Medical Director of Tamms. He oversees the Health Care Unit at Tamms, which is responsible for providing medical and mental health services for prisoners.
25. Dr. Rhodes is the Supervising Clinical Psychologist at Tamms. She provides mental health services to prisoners at Tamms and oversees the staff of approximately five social workers who serve as the prison’s mental health professionals.
26. Dr. Chandra is the Psychiatrist at Tamms. He provides mental health services to
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prisoners at Tamms and administers psychotropic drugs to them. 27. At all times relevant to this action, defendants acted under the color of the laws,
regulations, and customs of the State of Illinois. All defendants are sued in both their individual and official capacities. The defendants' actions constituted "state action" as defined under federal law.
ALLEGATIONS OF FACT A. As Defendants Are Aware, Tamms Houses Many
Prisoners Who Are Seriously Mentally Ill. 28. Tamms is a newly built free-standing facility specially designed to manage and control violent or seriously disruptive prisoners. It is located at the southern tip of Illinois, near a small town of the same name. Its first six prisoners arrived on March 9, 1998. Today, approximately 270 prisoners reside there. The facility is built to house 480 prisoners as well as the state’s new execution chamber. 29. The decision about which of Illinois’ 43,000 prisoners will be transferred to Tamms is made by Defendant DeTella with input from five deputy directors who work under his supervision and from Defendant Welborn. Defendants Snyder and Welborn have said that placement at Tamms will last at least a year. Informally, defendants are telling some prisoners they will stay at Tamms for the remainder of their incarceration terms, which may be a matter of decades. 30. The prisoners selected for placement at Tamms are those defendants deem the most violent and or potentially disruptive. It is well known that many seriously mentally ill prisoners exhibit violent and assaultive behavior. Although “mental health concerns” are one of the factors considered in deciding whether an inmate should be placed at Tamms (Ill. Adm. Code Tit. 20 § 505.40), there is no bar to placing seriously ill prisoners at Tamms. Defendants do not
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screen prisoners adequately when they are transferred to Tamms to determine if they are seriously mentally ill, they do not prohibit the transfer of prisoners to Tamms when they know them to be mentally ill, they do not examine them adequately as they continue to reside at Tamms to determine if they have decompensated to a greater degree than they would have at another facility, and they do not remove prisoners from Tamms even when they know that the prisoner’s placement at Tamms has caused him to decompensate mentally. Because of this, a high percentage of the prisoners residing at Tamms are in fact seriously mentally ill.
31. At Tamms, prisoners are subjected to near total social isolation in an extraordinarily restricted environment. These conditions are known to cause serious psychological problems in some prisoners, notably those who have serious pre-existing mental illnesses, including chronic long-standing depression, schizophrenia, and other long-standing, severe mental illnesses; those with certain pre-existing disorders such as borderline personality disorders and, in some cases, those with no pre-existing disorder. The psychological problems displayed by at-risk prisoners include symptoms such as perceptual disturbances (for example, hallucinations), hypersensitivity to external stimulation, aggressive fantasies, overt paranoia, problems with concentrating and with controlling impulses, anxiety/panic disorder, and overt psychotic disorganization, as well as attempted suicide and physical trauma including self-mutilation.
32. Prisoners who begin to experience these serious psychological injuries are caught in a cycle that worsens their illnesses. Their illnesses makes them act destructively toward themselves, their environment, or the staff. In response, defendants ignore their illnesses and punish their conduct. This punitive treatment exacerbates their illnesses, which increases their destructiveness. Day after day, certain seriously mentally ill prisoners at Tamms cut their arms, necks, and abdomens. Repeatedly, some of these prisoners attempt to hang themselves or
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attempt to swallow razors or broken pieces of mirror. One of these prisoners has been known to create large red wounds on his shoulders from biting himself; another has been observed eating his own flesh.
33. Defendants respond to this deranged behavior with punishments such as the socalled cell extraction, a procedure in which members of a tactical team, armed with batons and protected with plastic shields, spray burning chemical substances in the inmate’s face and then forcibly “extract” him from his cell. They order prisoners’ cells to be stripped of all property (even their mattress and blanket) and force the men to live in this bereft environment, often without clothes or a blanket, for days at a time. They order Plexiglas shields to be placed in front of the prisoners’ doors, or black boxes placed over the slot where food is passed, making any communication even more difficult. They order prisoners’ centrally controlled water supply to be shut off for hours at a time.
34. Mentally ill prisoners also are punished by the use of excessive force by prison guards. Although defendants presumably do not officially sanction this conduct, they unofficially condone it by creating an atmosphere of terror and brutality at Tamms; failing to fully investigate prisoner’s complaints of excessive force; failing to punish the guards who use excessive force; and punishing of prisoners who complain about it.
35. Mentally ill prisoners also are given mental health treatment that in fact is punishment and not treatment. They are forcibly and against their will given injections of medicine to sedate them. They are bound in four-point restraints sometimes for hours at a time and sometimes while they are completely naked. They are stripped of all their clothes and held in cold “strip cells” in the Health Care Unit, which are barren of anything except a cement bed and a toilet, where they can earn the right to get their clothes back only by promising they will
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not try to kill themselves. B. The Conditions at Tamms Are Designed to
and Do Cause Psychological Damage. 36. Seriously mentally ill prisoners enter Tamms at their peril, for the conditions there are designed to and do cause psychological damage. At Tamms, control is exercised through extreme social isolation, severely restricted movement, and an environment that severely restricts stimulation. A centralized control booth operates all lights and doors and the water supply, video cameras provide visual surveillance, and intercoms provide communication without human contact and allow guards to eavesdrop on prisoners. 37. Tamms consists of eight self-contained cell blocks, called pods, each holding six wings of ten cells. To restrict the movement of prisoners, each pod is a self-contained living unit that holds an exercise area, showers, a small law library, a nurses’ station, a “multipurpose room” used by the medical and mental health staff, and a central control booth for corrections staff. Movement between the pods is through an underground tunnel. At Tamms, each inmate spends 23 to 24 hours a day, seven days a week, in a single 80-square-foot concrete cell. Each cell contains only a concrete bed, a stainless steel combination sink and toilet, a mirror, a shelf that serves as a desk, and (for some inmates) two boxes for storing personal property. Each cell has a narrow window placed high up on the wall, making it possible for defendants to say that the cell has natural light but impossible for the inmate to see anything unless he stands on his bed. The door to the cell is made of heavy gauge steel perforated with dime sized holes that are difficult to see through. Each door contains a slot for food, called a chuck hole. The prisoners’ view through the perforated steel mesh is of a raw concrete wall and the occasional Department employee who passes by; prisoners cannot see each other. 38. Prisoners do not leave these cells for meals, which are served on plastic trays
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pushed through the chuck hole; the trays and utensils must be placed back in the chuck hole within 30 minutes. Prisoners do not leave to visit with other prisoners; such contact is forbidden. They do not leave for communal religious services, educational programs, or jobs, none of which exist at Tamms. Those who can read (many prisoners at Tamms have only rudimentary reading and writing skills) may keep some books in their cells.
39. Most prisoners cannot listen to the radio or watch television, which are provided only for the prisoners in administrative detention who have advanced to “Behavior Level 3,” something few mentally ill prisoners can do. (Prisoners at Tamms are either in administrative detention, which is ostensibly a non-disciplinary status of confinement that removes an inmate from general population, or disciplinary segregation, resulting from punishment ordered after a rule infraction).
40. Prisoners cannot see or socialize with other prisoners, except by yelling into the wing, where the extreme echoing effect makes it hard to hear and understand. On nearly every wing, one or two prisoners scream and bang on cell walls throughout the day and night, so that other prisoners often cannot sleep.
41. Prisoners regularly leave their cells only to exercise or take a shower one to four times a week. Occasionally, they visit the satellite law library or go to the multipurpose room to see a social worker; only rarely do they travel outside the pod to the Health Care Unit or the Visitors’ Room. At no time, are two or more prisoners on a wing allowed outside their cells at the same time.
42. Whenever an inmate leaves his cell for any purpose except exercise and shower, and each time he returns, he must submit to a full body cavity search. First he removes his clothes and hands them to the guard. Standing naked, he must display his ears, feet, hands.
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Then he must bend over, his back to the guard, and spread his buttocks. He must raise his penis so the guards can examine his testicles. He may be ordered to expose the grove around the tip of his penis or, if he is not circumcised, to pull back the foreskin.
43. After dressing, he is handcuffed and then, kneeling or lying on the floor, his legs are shackled by guards wearing latex or leather gloves. If he is moving outside his pod he is surrounded by two or three guards, who place their arms on his chest and shoulders, and his movements may be tracked by a guard who has access to a semi-automatic rifle. These punitive and humiliating exchanges are the only times a Tamms inmate feels another person’s touch, except when he is examined by a doctor, which usually takes place while the inmate’s legs are shackled and his arms are held by guards.
44. Exercise takes place in concrete “yard,” about 15 by 30 feet in diameter, placed at one end of each pod. The yard contains no basketball hoop, no drinking fountain, and no toilet. The only equipment is a small rubber ball available to prisoners who purchase it. A stainless steel plate covers one-half of the yard; the remaining half gives the inmate his only glimpse of natural light and the outside world, except what he can see through his cell window. Yet many seriously ill prisoners go for weeks without going to the yard because their privileges have been removed for disciplinary reasons or because their mental illnesses make them fearful of leaving or too depressed to move.
45. The inmate’s contact with family and friends outside prison is infrequent, uncomfortable, and without physical contact. Telephone calls are limited to emergencies such as the death of a family member (legal calls also are limited to “extraordinary circumstances”). Visits are cumbersome, expensive, short, and inhospitable. Except for visits by lawyers, each visit must be arranged weeks in advance for a specific time and is forfeited if the visitor is late.
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Most visitors must make an overnight car trip, since Tamms is 370 miles from Cook County, where the families of most prisoners reside. Non-legal visits last only two hours. A thick glass shield separates the visitor and the inmate, who talk through a microphone that distorts voices and cuts off a conversation if one person talks or laughs while the other is talking. All conversation (except between attorney and client) is recorded. The prisoner’s legs are shackled and chained to a bolt in the floor. If the prisoner is in segregation status, he wears handcuffs attached by a short chain that makes it difficult for him to gesture or even to scratch his face.
46. For some prisoners, these conditions of social isolation, restricted movement, and restricted external stimulation may be bearable. For seriously mentally ill prisoners, however, the conditions cause suffering that amounts to cruel and unusual punishment. C. Defendants Have Acted With Deliberate
Indifferent to Plaintiffs’ Serious Mental Illnesses. 1. Defendants’ deliberate indifference to
plaintiffs’ serious mental health need is shown by systemic deficiencies in the mental health care system at Tamms. 47. The deliberate indifference of defendants to the serious mental health needs of plaintiffs and the plaintiff class is demonstrated by systemic deficiencies in the staffing, facilities, and procedures of the mental health care system at Tamms which make unnecessary suffering inevitable. In creating and then failing and refusing to cure the systemic deficiencies, defendants have acted with deliberate indifference to the serious mental health needs of plaintiffs and the plaintiff class and, in doing so, have unnecessarily and wantonly inflicted severe pain on them. These systemic deficiencies, which are the overall responsibility of Defendant Snyder and the particular responsibility of Defendants Drs. Elyea, Powers, Rhodes, Hopkins, and Chandra, are as follows:
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a) Although “mental health concerns” must be considered when a prisoner is transferred to Tamms, there is no requirement that mentally ill prisoners be excluded and there is no adequate systematic program for screening and evaluating the mental health status of prisoners being proposed for transfer. In fact, prisoners known to have histories of serious mental illness are transferred to Tamms.
b) There is no requirement that prisoners who decompensate at Tamms be removed from the facility and no adequate systematic program for identifying such prisoners. Instead, defendants ignore the obvious signs of prisoners’ mental deterioration, despite their knowledge that the environment at Tamms tests even the strongest inmate.
c) There is no adequate systematic program to provide care at Tamms for seriously mentally ill prisoners. Instead, the mental health system operates as an adjunct to the harsh punishment system, by “treating” prisoners with techniques that are, in intent and purpose, methods of punishment which will make seriously ill prisoners sicker, not better. These techniques include (i) ordering the suicidal inmate to undergo extreme isolation while lying naked in cold, stripped cells, sometimes while bound in four-point restraints and while injected with mind-numbing drugs against his will; (ii) allowing guards to handle an inmate more roughly than is necessary while in the Health Care Unit or while bringing him to the Unit; (iii) withholding talking therapy from an inmate because he is demonstrating disruptive behavior that is directly caused by his mental illness; and (iv) denying prisoners the right to send or receive mail (including legal mail) and the right to basic toiletries such as a toothbrush, toothpaste, and deodorant while they are in the Health Care Unit.
d) Mental health treatment at Tamms lacks the commitment of a psychiatrist to identify and treat in an individualized manner those prisoners suffering from serious mental disorders.
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Instead, the prison has been served by a series of psychiatrists whose main function is to prescribe drugs instead of to oversee the individual monitoring, evaluation, and treatment of prisoners.
e) Defendants Rhodes and Chandra routinely allow security concerns to compromise their duties to prisoners who are their patients. For example, they breach their promise of confidentiality to patients by sending written mental health reports to non-medical personnel, and they allow security personnel to dictate that mental health sessions be conducted while the prisoner sits uncomfortably with his feet shackled to the floor and his hands cuffed behind his back, in a room where guards can overhear the conversation.
f) Defendants have established three “elevated security” wings where a high percentage of the seriously mentally ill prisoners are unjustifiably isolated. No special mental health treatment is provided and the conditions are even more harsh and isolating than they are elsewhere at Tamms. The high noise level and the sense of danger and chaos on the wings, combined with the reluctance of mental health and other medical personnel to venture there, make the experience of living on these wings even worse than the experience of living elsewhere at Tamms.
g) Accurate, complete, and confidential records of the mental health treatment process are not maintained. The records Tamms receives from other prisons are inaccurate and incomplete and often arrive long after the inmate does; the records Tamms maintains are incomplete and disorganized, and the confidentiality of the prisoners’ communications is breached repeatedly.
h) The assessment and treatment of seriously mentally ill or decompensating prisoners sometimes is delayed unacceptably. These delays are caused, among other reasons, by (i)
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Tamms’ receipt of sketchy records from other institutions; (ii) the repetitive, deliberate failure of correctional officers to respond to mental health emergencies, and (iii) the systematic refusal of Tamms mental health workers to identify and treat the high percentage of prisoners who arrive at Tamms seriously mentally ill or who decompensate there.
i) Behavior-altering medications are prescribed and administered in dangerous amounts, by dangerous methods, or without appropriate supervision and periodic evaluation.
j) Prisoners are punished for behavior that is directly and obviously a consequence of their serious mental illnesses. This punishment includes: (1) discipline meted out informally, such as taunting a prisoner with a ferocious dog or spraying caustic chemicals in his eyes because, in a plea for attention, he refuses to give up his food tray; (2) discipline imposed through the formal prison disciplinary procedure such as punishing a prisoner for destroying state property because he tried to swallow a piece of mirror or attempted to hang himself with a noose fashioned from a state-owned sheet; and (3) criminal charges caused to be brought for relatively minor events that normally are overlooked or resolved through the prison disciplinary procedure.
k) Physical restraints are used improperly to punish rather than to treat and protect mentally ill prisoners.
l) Isolation in a cold stripped cell is used to punish rather than to treat and protect mentally ill prisoners.
m) Talking sessions with mental health professionals are used not to treat prisoners but to reward them for submissive conduct that may be harmful to their mental state and that often is impossible for them to achieve.
n) The mental health care program fails to identify, treat, and supervise prisoners with
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suicidal tendencies. 2. Defendants’ deliberate indifference to plaintiffs’ serious mental health needs also is shown by a serious of incidents of mistreatment. 48. The deliberate indifference of defendants to the serious mental health needs of
plaintiffs is demonstrated by a series of incidents of mistreatment occurring closely together in time. The incidents are described in the statements about the class plaintiffs set forth below.
49. In creating and then failing and refusing to cure the conditions that allowed these incidents to occur, defendants have acted with deliberate indifference to the serious mental health needs of plaintiffs and the plaintiff class and in doing so, have unnecessarily and wantonly inflicted severe pain on them. A. Class Plaintiff Ashoor Rasho
50. Ashoor Rasho is a 25-year-old man from Cook County, Illinois, who has been at Tamms since March 1998. He was been incarcerated in institutions run by the Department since 1996, originally on a charge of burglary; his tentative release date is 2008.
51. Mr. Rasho came to Tamms with an extensive history of psychiatric problems, as defendants knew. Throughout his incarceration, Mr. Rasho has suffered from a serious mental illness that has caused him to hear voices and to have other auditory perceptual disturbances. As a consequence of his illness, he has attempted suicide and mutilated his body by cutting and slashing his arms, neck, and abdomen many times. While incarcerated at the Department before coming to Tamms, Mr. Rasho was treated with psychotherapy and extremely high doses of the antidepressant and anti-anxiety medicine Sinequan, a drug that is medically appropriate for people suffering from serious mental illnesses. Several times before coming to Tamms, Mr. Rasho has been sent to health care unit of the prison for mental health reasons.
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52. Mr. Rasho’s mental problems are compounded by grave medical problems that must be taken into account when administering drugs to him. These problems have included asthma and a severe recurring bleeding ulcer, which may have been caused by the excessively high doses of Sinequan.
53. For the ten months before he was transferred to Tamms, Mr. Rasho had visited monthly with a psychiatrist at Pontiac Correctional Center, and had been taking Sinequan. Mr. Rasho had a good relationship with the Pontiac psychiatrist, and the two of them believed that Mr. Rasho was doing fairly well, except when he did not take his medication. On February 25, 1998, because Mr. Rasho had been doing well but had stopped taking his medication without informing his doctor, the doctor discontinued the prescription for Sinequan, while determining that Mr. Rasho required supportive therapy and close monitoring “for any breakthrough anxiety, as well as mood lability and disregulation.” The doctor’s promise of watchfulness was noteworthy, because Mr. Rasho’s good relationship with this doctor was important to his mental well being.
54. On or about March 26, 1998, Mr. Rasho was transferred to Tamms. Defendants did not immediately restart the Sinequan and they provided no supportive relationship. Immediately, the signs that the Pontiac doctor had warned about – anxiety and mood lability and disregulation – began to appear.
55. Within a week of his transfer to Tamms, Mr. Rasho warned mental health workers that he was having problems and asked to take Sinequan again. He told social worker Katie Lingle he was “depressed, frantic, paranoid, can’t think straight.” He showed her a live spider that he kept in his asthma inhaler as a pet, and said he was hearing voices telling him to snap, to
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throw something at the guards, to tear up his cell. He said he was seeing his dead brother (who had been murdered two years earlier).
56. Mr. Rasho made similar statements to part-time psychiatrist Dr. Kenneth Gilbert, who dismissively noted that his symptoms were “[a]ll very transient and may be considered manipulative.” Dr. Gilbert offered the primary diagnosis, never before advanced, that Mr. Rasho suffered from attention deficit disorder and a “[l]ife-long problem of being easily bored.” Nevertheless, psychiatrist Gilbert prescribed the antidepressant Wellbutrin (another psychiatrist discontinued it six weeks later because he concluded that it was ineffective and possibly dangerous) as well as the drug Risperdal, whose only recognized use is for treating psychoses.
57. Over the next six weeks, Mr. Rasho’s conduct became disruptive and violent. In response, he was placed on property restrictions, taunted with a German shepherd specially trained by the Department “K-9” team, gassed with a chemical spray that was especially hazardous to him because of his asthma, and several times placed in a stripped cell for days.
58. On approximately June 15, 1998, Mr. Rasho was transferred to an elevated security wing. There, his condition has continued to worsen. By late September 1998, the staff had noted self-inflicted lacerations on his arms, wrists, and abdomen that occurred on June 25, July 3, July 20, August 2, August 4, August 20, September 6, and September 17. By September 1998, Mr. Rasho’s arms and wrists were brightly marked with the many slashes he had made to them; one arm was swollen from infection. By then, and through today, Mr. Rasho talks frequently about killing himself. He has been placed on suicide watch in the Health Care Unit many times, once after being found in his cell with a rope around his neck. While on suicide watch, like Mr. Boyd, Mr. Rasho has been stripped naked, placed in four-point restraints against his will, and forcibly injected with powerful mind-altering medications against his will.
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59. Many times Mr. Rasho has made alarming statements about his state of mind directly to mental staff professionals. On July 22, 1998, he told psychiatrist Dr. Frank Hayes, “The only way I am leaving Tamms is in a body bag.” (Dr. Hayes succeeded Dr. Gilbert as Tamms’ psychiatrist. Dr. Gilbert worked at Tamms part-time from approximately April to June; before that, beginning when Tamms opened, the facility had no psychiatrist on duty. After Dr. Gilbert’s departure, Dr. Hayes worked full-time, on contract, from about June to September 1998. Then, Dr. James Adams, who is an internist and not a psychiatrist, visited Tamms twice a month to oversee the care of prisoners with mental problems. In about April 1999, Defendant Dr. Chandra became the psychiatrist at Tamms.) On August 2, 1998, after Mr. Rasho was admitted to the Health Care Unit vomiting blood, he told mental health worker Jill Stevens, “I been seeing the future . . . It fucks with me. It hurts my head. I'm sick. I'm starting to throw up blood again. I’m paranoid, nervous.”
60. Yet consistently, the attitude of the Tamms staff, including the mental health staff, is to ignore these obvious serious danger signals and to interpret Mr. Rasho’s cries for help as being manipulative and his motive to be sadistic, despite the fact that the person he is harming is himself. For example, several times when he wrote to Defendant Dr. Rhodes asking to talk to her, she sent back a message several days later asking him to send a formal written request.
61. Correctional and mental health staff even ignore acts of self-destruction that pose the risk of serious physical harm to Mr. Rasho. On August 20, 1998, with his arms already swollen from infected self-inflicted wounds, Mr. Rasho again cut his arm and began eating small pieces of his own flesh in front of a correctional officer. The officer ignored the medical emergency and also ignored Mr. Rasho’s pleas to speak with someone from the mental health unit. Eventually Mr. Rasho was removed from the cell and his arm was stitched. Despite the
21

obvious danger Mr. Rasho posed to himself, he was returned to the same cell and left unattended (and evidently still in possession of a dangerous instrument); again he cut himself, again requiring stitches to close the wound. Three days later, Jill Stevens came to visit and pronounced his primary diagnosis to be malingering. A day later, left in isolation and unwatched, Mr. Rasho pulled the stitches out of his arm and lost more than a half pint of blood before he was discovered bleeding in his cell.
62. Despite the disdain of defendants for Mr. Rasho’s serious mental problems, the psychiatric staff has not hesitated to medicate Mr. Rasho heavily. Since coming to Tamms, he has received various combinations of Prozac and Wellbutrin (which are antidepressants), Sinequan (an anti-depression and anti-anxiety drug); BuSpar, (an anti-anxiety drug); valproic acid (a medication for seizures); and Risperdal, Thorazine, and Haldol (behavior-altering antipsychotic drugs).
63. Most recently, Mr. Rasho has been transferred to a newly-created “Specialized Treatment Unit” at Tamms, where he and four other seriously mentally ill prisoners receive therapy calculated to modify their behavior but not to treat their underlying illnesses.
64. The combination of insensitive, hostile treatment, and haphazard administration of potent mind-altering drugs has been devastating for Mr. Rasho, who wishes everyday to be released from Tamms. B. Class Plaintiff Faygie Fields
65. Faygie Fields is a 41-year-old man from Cook County, Illinois, who has been incarcerated in a facility run by the Department since approximately 1986 and at Tamms since March 1998. Mr. Fields was sent to prison for murder and is scheduled to be released in 2024. Mr. Fields has a long history of serious mental problems dating back to his pre-adolescence
22

when he was diagnosed with paranoid schizophrenia. At the trial for the murder of which he was convicted in 1984 (when he was 26), Mr. Fields’s mental health was raised (albeit unsuccessfully) as a defense to his guilt and in connection with his sentencing. At that time, he was diagnosed as having chronic schizophrenia, a diagnosis that undoubtedly is accurate today.
66. One of the most painful events in Mr. Fields’s life was the death of his mother in 1997. When he was denied the right to attend his mother’s funeral while incarcerated at Stateville, Mr. Fields became violent and had a fight with a guard and the warden.
67. On or about March 11, 1998, Mr. Fields was transferred to Tamms; in approximately October 1998, he was transferred to an elevated security wing. The intense isolation at Tamms has exacerbated Mr. Fields’s delusions and feelings of persecution, symptoms that typify his schizophrenia. Over the months he has been at Tamms, Mr. Fields has come to believe that Tamms staff members are trying to kill him in retaliation for his outburst at Stateville. He thinks they are putting drugs in his food trays, which he believes give him migraine headaches and “cramped stomach pains with stress and emotion.” He believes that Tamms was built on a burial site where spirits are resting. He believes that the spirits visit him; but they are not friendly. He is increasingly afraid to visit his lawyer, for fear another inmate will kill him.
68. Many times Mr. Fields has tried to harm himself or his surroundings at Tamms on account of his active psychosis, and he has been punished for his actions. For example, twice after he attempted suicide by swallowing a piece of his mirror, he was found guilty of damaging or misusing state property. When guards found him with a homemade rope around his neck attempting to hang himself, they gave him a ticket for destroying the sheet he had torn to make a
23

rope; the Adjustment Committee found him guilty and ordered him to pay restitution for the torn sheet.
69. All people with serious mental illnesses deteriorate when they are subjected to sensory deprivation and punished for problematic behavior caused by their illnesses, as systematically occurs at Tamms. But these conditions are especially horrific for someone with deteriorated schizophrenia, like Mr. Fields As a consequence of the anti-treatment he is receiving at Tamms, Mr. Fields is losing whatever tenuous hold he now has on reality, and is sliding into a world of near continual delusions. C. Class Plaintiff Brian Nelson
70. Brian Nelson is a 35-year-old man from Cook County, Illinois, who has been under the Department’s jurisdiction since he was 18. He was sent to prison for murder and armed robbery and is scheduled to be released in 2015.
71. Although Mr. Nelson was not seriously mentally ill before he came to Tamms, in the time he has been there, he has become so.
72. The intense isolation at Tamms, combined with the incessant screaming of some prisoners (who likely are seriously mentally ill) has meant that for many nights Mr. Nelson has been unable to sleep, sometimes causing such alarming symptoms that he has been moved to the Health Care Unit. Also fueling his depression is Mr. Nelson’s sense that his transfer to Tamms and his treatment there reward misbehavior and punish good conduct. Mr. Nelson had earned his share of tickets in the early years of his incarceration. But that changed when, in early 1997, he was transferred to a medium security facility in New Mexico under the jurisdiction of the state of Illinois (pursuant to the Interstate Corrections Compact). His good conduct in the New Mexico prison earned him the right to live in the general population – not segregation – and a job
24

as a tailor. On or about April 27, 1998, defendants transferred Mr. Nelson to Tamms on administrative detention status and then quickly put him in disciplinary segregation, which they justified by a ticket he received in 1996 before going to New Mexico. Mr. Nelson’s good conduct at Tamms has garnered him no extra segregation time. But when he finished serving segregation time on his 1996 ticket, he was transferred to administrative detention status at Tamms. Defendants have told Mr. Nelson that he probably will not leave Tamms until his incarceration ends many years from now.
73. As is typical for many seriously mentally ill prisoners, while at Tamms Mr. Nelson’s physical problems have worsened. Mr. Nelson has a long-standing history of seizures and headaches that were for the most part controlled by medication. Since being at Tamms, his seizures and headaches have increased in frequency and intensity. Adding to the problem is the staff’s failure to take the seizures seriously and to institute prompt, appropriate medical intervention. For example, in early November, 1998 without notifying him, defendants gave Mr. Nelson a substitute pill for the Dilantin he has taken for ten years to control seizures. The new medicine knocked him out; he was taken to the Health Care Unit, where he had excruciating headaches, blurred vision, dangerously high blood pressure, and a feeling of unsteadiness and numbness on one side, symptoms that understandably alarmed him. The symptoms continued, but Mr. Nelson did not see a physician for more than ten days. Then, Dr. Powers chose only to prescribe Inderal, an inexpensive antihypertensive agent that should not be given to Mr. Nelson because it can trigger or exacerbate a serious depression. Medical care workers offered Mr. Nelson confusing and contradictory explanations for the change in medicine and told him that his symptoms were psychological. Defendant Dr. Rhodes minimized the importance of Mr. Nelson’s symptoms and said that their cause was physical, not mental.
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74. Today, Mr. Nelson has a major depressive illness and serious medical symptoms that require investigation. He cannot sleep or concentrate while awake; he cries often and feels hopeless and lonely. The sense he had in New Mexico of doing something constructive that would lead to a productive life after prison has been replaced with feelings of anger and violence. Mr. Nelson expects that he will not survive to leave Tamms, and he is receiving no treatment that might convince him otherwise. D. Class Plaintiff Robert Boyd
75. Robert Boyd is a 24-year-old man from Cook County, Illinois, who was a prisoner at Tamms from about April 1, 1998, until his transfer on or about July 22, 1999, to the Department’s mental health unit, located at Dixon Correctional Center. Mr. Boyd has been incarcerated in institutions run by the Department since 1993, initially on a charge of auto theft. He is scheduled to be released in 2014.
76. Before coming to Tamms, Mr. Boyd had an extensive psychiatric history that defendants knew about. As a juvenile, he was incarcerated at the Cook County Juvenile Temporary Detention Center, where a long stay in segregation status precipitated massive psychological problems that led to a year-long hospitalization at the Illinois State Psychiatric Institute. After that, while incarcerated at institutions run by the Department, Mr. Boyd attempted suicide several times, cut himself many times on the arms and neck, and acted aggressively toward staff and other prisoners, thereby triggering his placement in the health care unit of a prison for mental health reasons at least four times. During much of his incarceration, Mr. Boyd has been given massive doses of psychotropic drugs, including the major tranquilizers Serentil and Thorazine and the drug lithium carbonate (used to treat manic episodes of bipolar
26

affective disorder, also known as manic depression). In addition, for many years Mr. Boyd has been treated for a seizure disorder diagnosed at least once as grand mal epilepsy.
77. Nevertheless, for several months before he was transferred to Tamms, Mr. Boyd had gone without receiving any tickets for disciplinary infractions, without requiring anti-seizure medication or behavior-altering drugs, and without requiring other intervention by mental health staff.
78. On or about April 1, 1998, Mr. Boyd was transferred to Tamms. He immediately began to have psychological problems. Within the first month of his stay, Mr. Boyd was unable to sleep, he began hearing voices, and he experienced extreme anxiety. In addition, he engaged in self-defeating acts of rebellion, such as withholding his food tray and tearing the cover off his mattress and destroying his light and call button, all acts that triggered punishment that increased his mental problems.
79. Soon Mr. Boyd began hallucinating. He screamed and talked to imaginary people in his cell, once explaining to staff that he was busy having a party. Another time, he saw demons crawling out of his toilet and walls. He sat in a tent he had made from his blanket, explaining that he was hiding from five drunken correction officers who had threatened him. He began to think his food was being poisoned, that the walls were closing in on him, that the guards were conspiring with one of the prisoners to kill him.
80. Eventually, Mr. Boyd became violent toward himself. He repeatedly cut his arms and neck, bit his shoulders, and bashed his head into a wall.
81. The reaction of the Tamms correctional, medical and mental health staff to Mr. Boyd’s pain ranged from annoyance to anger. Once, after he returned from suicide watch on the Health Care Unit, one of the guards winked at him, pretended to blow kisses, and told him, “Cut
27

yourself,” which, he did. Another evening, when Mr. Boyd had cut his neck and arm very badly, Defendant Dr. Powers refused to stitch up the cuts until morning many hours later, when the wounds required approximately 26 stitches.
82. Other times, in response to Mr. Boyd’s aggressiveness, guards maced him and pushed him in his cell. They bruised his shoulders and arms while placing him in restraints against his will. They slammed his head into a wall and broke open his forehead.
83. A time of grave crisis came for Mr. Boyd in late October 1998, when he learned that his father had died suddenly. Mr. Boyd became acutely suicidal and was placed on suicide watch, a procedure in which the sole treatment consists of being placed in isolation in a cold, stripped, cell, without clothes and without conversation, for several days in a row. Throughout his stay at Tamms, Mr. Boyd was placed on suicide watch many times. At times, while in the isolation of suicide watch, Mr. Boyd was placed in four-point restraints for hours at a time and forcibly injected with high doses of a tranquilizer that made him unaware of his surroundings. Other times he was simply observed, naked, by the guards and nurses. Rarely was there an attempt at therapeutic conversation; the mental health workers told him that talking to them was a privilege that he must earn by agreeing not to kill himself. Instead of talking to Mr. Boyd, mental health workers observed him from another room while he lay naked and alone, until he could win his clothes back, a piece at a time, by agreeing not to hurt himself. At the same time, these mental health professionals made no effort to address the underlying problems that accounted for Mr. Boyd’s suicidal feelings.
84. Because of his many trips to the Health Care Unit, the punishment he has received for his conduct, and his own fears, Mr. Boyd rarely went out of his cell to exercise. In September 1998 he was transferred to an elevated security wing, a section of Tamms (called the
28

“cuckoo ward” by the guards) which is saved for prisoners who are acutely mentally ill and those who are especially willfully disruptive – the mad and the bad. No special mental health treatment was provided for Mr. Boyd or other prisoners on the elevated security wing; to the contrary, the noise level is so high and the sense of danger and chaos so great, that mental health workers visit prisoners on those wings less frequently than other wings.
85. Mr. Boyd tried to counter the harmful isolation of Tamms through consultation with mental health workers; but a series of stratagems prevented this from happening. First, no psychiatrist was available to talk; the doctor, when he was available for an appointment, did not engage in talking therapy. Next, the non-physician mental health workers told Mr. Boyd that he did not need their services because he was not sick; they even expressed skepticism about whether he was ever hospitalized in a psychiatric setting. (This fact should have been easy to confirm, but it was not, because Mr. Boyd’s psychiatric records are incomplete, disorganized, and knowingly crafted to avoid documenting the extensiveness and severity of his psychiatric history.) Then, when Mr. Boyd tried to see Defendant Dr. Rhodes, she told him she did not believe his symptoms were real, or she sent a social worker to talk. When he tried to talk to the social worker, she would say that talking to her was a privilege that she would not grant as long as he kept threatening suicide or cutting himself and bashing his head – that is, as long as he was sick. When he finally did get to talk to someone, usually a social worker, he was taken to a room where he was seated with his legs shackled to the floor and his arms handcuffed in back. Often guards were standing nearby, making private conversation impossible. If the guards were near, Mr. Boyd typically asked for and obtained a promise of confidentiality, but repeatedly he realized the promise had been broken when a guard teased him about something he has said in confidence to the social worker.
29

86. Despite defendants’ knowledge of the seriousness of Mr. Boyd’s symptoms, the diagnoses the mental health staff advanced for him seemed random and trivial. He was variously described as being an “immature, energetic, adolescent male”; as having a mixed personality disorder with antisocial and narcissistic traits; as having post-traumatic stress disorder; as having an intermittent explosive disorder; and as suffering from poor adjustment to Tamms and ineffective coping. Despite Mr. Boyd’s trivial diagnoses, while at Tamms he was treated with Prozac for depression, valproic acid and Tegretol for seizures, and Thorazine and Haldol for acute psychosis.
87. Beginning in March 1999, Mr. Boyd was in the Health Care Unit nearly as much as he was out of it. Although the mental health staff continued to describe him as manipulative and deceitful, he continued to harm himself by cutting his body and banging his head against the cell walls and doors. On July 12, 1999, he injured himself so seriously he was transferred to a private hospital for emergency care. On or about July 22, 1999, he was transferred from Tamms to the Department’s mental health unit at Dixon Correctional Center. On October 6, 1999, he was transferred from Dixon to Menard Correctional Center. Since leaving Tamms, Mr. Boyd’s mental and physical health and behavior have improved significantly, but defendants maintain that they may transfer him back to Tamms at any time.
3. Defendants have unnecessarily and wantonly inflicted severe pain on plaintiffs by exposing them to the conditions at Tamms.
88. Defendants are aware that the excessively harsh and psychologically damaging conditions at Tamms exacerbate existing mental illnesses and trigger serious mental illnesses in prisoners who previously were not seriously ill. Despite this knowledge, they continue to send severely mentally ill prisoners to Tamms, allow them to remain there for long periods of time as
30

their illnesses worsen, and allow other prisoners to remain after the conditions at Tamms have triggered serious mental illnesses in them. In exposing these prisoners to the conditions at Tamms, defendants have unnecessarily and wantonly inflicted pain on them.
COUNT I (Deliberate Indifference to Serious Mental Health Needs in Violation of the Eighth and Fourteenth Amendments) 1-88. Plaintiffs reallege paragraph 1-88 as if fully set forth herein. 89. In demonstrating deliberate indifference to the plaintiffs’ mental health needs as described above, the individual defendants violated the rights of plaintiffs and the plaintiff class to be free of cruel and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution.
COUNT II (Unconstitutional Conditions for Seriously Mentally Ill Prisoners
in Violation of the Eighth and Fourteenth Amendments) 1-88. Plaintiffs reallege paragraphs 1–88 as if fully set forth herein. 89. In subjecting plaintiffs to the unconstitutional conditions described above, the individual defendants violated the rights of plaintiffs and the plaintiff class to be free of cruel and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution.
COUNT III (Violation of State-Created Liberty or Property Interest
Under the Fourteenth Amendment) 1-88. Plaintiffs reallege paragraphs 1-88 as if fully set forth herein. 89. Pursuant to 405 ILCS 5/2-102, seriously mentally ill prisoners, as recipients of services for purposes of the Illinois Mental Health And Developmental Disabilities Code, are entitled to be provided with adequate and humane care and services in the form of mental health treatment by mental health professionals who exercise their professional judgment in delivering
31

this treatment. The right created by the state Mental Health Code is a liberty or property interest protected under the due process clause of the Fourteenth Amendment.
90. In acting in the manner described above, the individual defendants violated the rights of plaintiffs and the plaintiff class to these state-created liberty or property interests under the Fourteenth Amendment to the U.S. Constitution.
COUNT IV (Violation of the ADA)* 1-88. Plaintiffs reallege paragraphs 1-88 as if fully set forth herein. 89. Tamms is operated under the control of the Department, which is a public entity as that term is defined in 42 U.S.C. § 12131. 90. Each named plaintiff and each member of the plaintiff class is an otherwise qualified individual with a disability as defined under the ADA and its implementing regulations. 91. The Department has discriminated against the plaintiffs on account of their disabilities in the following ways: a) Causing plaintiffs to suffer unjustified isolation by sending them to Tamms and keeping them there despite defendants’ knowledge that they suffered from serious mental illnesses; b) Failing to reasonably accommodate the class members’ disabilities and instead discriminating against them in ways that increase the severity of their illnesses by such methods as adjudicating disciplinary charges without reference to relevant mental health records and by
* Plaintiffs’ counsel are aware that the Seventh Circuit has held that Congress lacks authority to enact Title II of the ADA, authorizing liability against a public entity, Walker v. Snyder, 2000 WL 626752. See also Erickson v. Board of Governors for Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000). Many courts have held otherwise, however, (see Erickson, 207 F.3d at 948). The U.S. Supreme Court has approved Title II ADA claims (see, for example, Olmstead v. L.C., 119 S.Ct. 2176 (1999)), and is likely to consider the constitutionality of Title II soon see 68 U.S.L.W. 1577). Plaintiffs’ counsel believe that the Court likely will decide that Congress did not exceed its authority in enacting the ADA, and therefore a claim based on the ADA is included here.
32

failing to assist mentally ill inmates in the grievance process and instead acting to thwart their efforts to file grievances and pursue them through the administrative process;
c) Denying class members access to programs, activities, and services of the Department granted at Illinois prisons other than Tamms such as contact with other prisoners or access to prison jobs, rehabilitative or educational programming, group therapy, outdoor exercise, communal religious programming, an adequate law library, the use of art supplies and other personal property that could enrich the quality of their lives, the ability to talk to friends and relatives by telephone, and an appropriate setting for contact visitation; and
d) Segregating some class members at Tamms on the elevated security wings, which are especially chaotic, noisy, isolated and less mental health treatment than offered elsewhere at Tamms.
92. In acting in the manner described above, the Department has unlawfully discriminated against plaintiffs in violation of the ADA.
COUNT V (Violation of Section 504 of the Rehab Act) 1-88. Plaintiffs reallege paragraphs 1-88 as if fully set forth herein. 89. The Department receives federal financial assistance, thus making it subject to Section 504 of the Rehab Act, 29 U.S.C. § 794. 90. Each named plaintiff and each member of the plaintiff class is an “otherwise qualified individual with a disability” as defined in the Rehab Act and implementing regulations. 91. Plaintiffs reallege paragraph 91 of Count IV, as if fully set forth herein. 92. In acting in the manner described above, the Department has unlawfully discriminated against plaintiffs, in violation of the Rehab Act.
COUNT VI
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(Declaratory Relief) 1-88. Plaintiffs reallege paragraphs 1-88 as if fully set forth herein. 89. There is an actual controversy between the parties requiring the court to declare the rights and other legal relations of the parties.
COUNT VII (Injunctive Relief) 1-88. Plaintiffs reallege paragraphs 1-88 as if fully set forth herein. 89. Unless enjoined from doing so, defendants will continue to willfully violate the rights of plaintiffs and the plaintiff class. These continuing violations constitute irreparable injury for which plaintiffs have no adequate remedy at law. WHEREFORE, plaintiffs request this Court to grant the following relief: A. Certify the plaintiff class of all seriously mentally ill prisoners who are now, have been before, or will be hereafter incarcerated at Tamms. B. Declare that the actions and inaction of defendants described herein have violated and continue to violates the plaintiffs’ rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. C. Enjoin defendants from engaging in any action or conduct, or from failing to act in any way, that violate the plaintiffs’ above-mentioned rights. D. Order defendants to take all action necessary to remedy the violations of their above-mentioned rights. E. Award plaintiffs a judgment against defendants separately and jointly for compensatory damages in an amount deemed proper by the fact-finder. F. Award plaintiffs a judgment against defendants separately and jointly for punitive damages in an amount deemed proper by the fact-finder.
34

G. Award plaintiffs a judgment against defendants separately and jointly for their attorneys' fees and costs.
H. Award plaintiffs a judgment against defendants separately and jointly for any other relief that the Court deems just and proper.
Respectfully submitted,
ASHOOR RASHO, FAYGIE FIELDS, BRIAN NELSON and ROBERT BOYD, Individually and on behalf of the plaintiff class

Jean Maclean Snyder Locke E. Bowman MacArthur Justice Center University of Chicago Law School 1111 E. 60th Street Chicago, IL 60637 (773) 753-4405
Mark J. Heyrman Mandel Legal Aid Clinic University of Chicago Law School 1111 E. 60th Street Chicago, IL 60637 (773) 702-9611

By_______________________________________ Jean Maclean Snyder One of their attorneys
James P. Chapman 140 S. Dearborn Street Chicago, Illinois 60603 (312) 580-2206

35

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ASHOOR RASHO, FAYGIE FIELDS,

)

BRIAN NELSON, and ROBERT BOYD,

)

Individually and on behalf of the plaintiff class, )

)

Plaintiffs,

)

)

vs.

)

)

DONALD SNYDER, JR., et aI.,

)

)

Defendants.

)

Civil No. OO-S28-DRH

REPORT AND RECOMMENDATION

PROUD, Magistrate Judge:

Pursuant to 28 U.S.c. §§ 636(b)(l)(B) and (C), this Report and Recommendation is respectfully submitted to the District Court.

Before the Court is a motion to dismiss and memorandum in support thereof filed by defendants Powers and Chandra. (Docs. 11 and 12). A review of the record reveals that a motion to dismiss was previously tiled on behalf of Powers and Chandra and the other seven defendants. 1 (Doc. 9).

It appears that there is some confusion as to who is representing Powers and Chandra, as

opposed to Powers and Chandra attempting to take a "second bite at the apple." The present motion

was prepared by retained counsel, attomey Patrick Londrigan of the law finn Heyl, Royster, Voelker

& Allen, while the previous motion was prepared by Assistant Illinois Attomey General Katherine

This Court recently submitted a Report and Recommendation regarding that previously tiled motion. Therefore, insofar as the present motion adopts the defendants' arguments from that first motion, those issues have already been addressed on behalf of defendants Powers and Chandra.
1

Anthony. The Court record indicates that both Londrigan and Anthony have entered their appearances on behalf of Powers and Chandra. In any event, because Powers and Chandra are before the Court raising different issues, particular to them as individuals, this Court has elected to consider the merits of the second motion to dismiss, rather than striking it. Similarly, this Court construes "Plaintiffs' Response to Defendants' Motions to Dismiss Complaint" (Doc. 24) as being responsive to this second motion to dismiss, as well as to the first.
The Complaint On July 6, 2000, the plaintiffs, Illinois Department of Corrections inmates housed at Tamms Correctional Center, who are allegedly mentally ill, tiled the above-captioned civil rights suit, pursuant to 42 U.S.c. § 1983. (Doc. 1). Plaintiffs set forth 27 pages of factual allegations, intenningling allegations regarding named plaintiffs with general assertions regarding the "class," upon which seven claims are premised. The seven enumerated claims are as follows: Count I - The individual defendants were/are deliberately indifferent to plaintifIs' serious mental health needs in violation of the Eighth and Fourteenth Amendments. Count II - Unconstitutional conditions of confinement for seriously mentally ill inmates imposed by the individual defendants constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Count III - The individual defendants have violated the plaintiffs' state-created liberty or property interest in being provided with adequate and humane care in the fonn of mental health treatment by mental health professionals who exercise their professional judgment in delivering treatment (created by the Illinois Mental Health and Developmental Disabilities Code, 405 ILCS 512102), thereby denying them due process under the Fourteenth Amendment. Count IV - The Illinois Department of Corrections discriminated against the plaintiffs on
2

account of their serious mental illness in violation of the Americans with Disabilities Act, 42 U.S.c.
*12101 et seq. (ADA).
Count V - The Department of Conections discrinunated against the plaintiffs on account of
* their serious mental illness in violation of the Rehahilitation Act, 29 U.S.c. 794 (Rehah Act).

The plaintiffs seek declaratory relief (Count VI), as well as injunctive relief, and

compensatory and punitive damages (Count VII).

The named defendants are all sued in their individual and official capacities.

These claims may be familiar to the District Court as plaintiffs voluntarily dismissed a

virtually identical law suit in June 2000, Boyd v. Snyder, 99-280-DRH ("Boyd I"). Of note,

defendant Chandra was not named in Boyd I.

Arguments for Dismissal

Defendants Powers and Chandra argue that dismissal is wananted pursuant to Fed.R.Civ.P.

12(b)(6) for the following reasons:

1.

* Plaintiffs failed to exhaust available administrative remedies prior to
tiling this action under 42 U.S.c. 1983, as required by Section

803(d) of the Prison Litigation Refonn Act of 1996 (PLRA) (Title VII

ofPub.L. 104-134, 110 Stat. 1321 (effective April 26, 1996) codified

as 42 U.S.c. § 1997e(a)).

2.

* Plaintiffs failed to allege sufficient personal involvement by Powers
and Chandra to sustain liahility under 42 U.S.c. 1983.

3. Plaintiffs have failed to state a viable Eighth Amendment claim for "deliberate indifference to a serious medical need" (Count I).

4. Plaintiffs have not alleged injuries sufficient to satisfy the physical u~ury requirement under 42 U.S.c. § 1997e(e).

(See Doc. 12). This Court construes the defendants' arguments as pertaining only to claims asserted

agaulst them in their individual capacities (Counts I-III).

3

Fed.R.Civ.P. 12(b)(6) v. Fed.R.Civ.P. 56 Defendants' motion to dismiss is premised upon Federal Rule of Civil Procedure 12(b)(6), which dictates that if matters outside the pleadings are presented to and not excluded by the court, the 12(b)(6) motion shall be treated as a motion for summary judgment and disposed of in accordance with Federal Rule of Civil Procedure 56. Although defendants do not submit any additional matters for consideration, plaintiffs do, having attached an inch-thick stack of exhibits relative to the exhaustion issue. (Doc. 24). Because the only copy of the amended complaint from Boyd v. Snyder, 99-280-DRH (which served as the grievance upon which this case is based) and the other grievances tiled by the plaintiffs are contained in plaintiffs' response (Doc. 24, Tabs 1-8), the Court has little choice but to consider these materials and apply the Rule 56 standard of review. However, insofar as no materials outside of the pleadings are considered with regard to the other arguments for dismissal, the Court considers the Rule 12(b)(6) standard of review still applicable. Consequently, in their responses to this Report and Recommendation regarding exhaustion, all parties may present any materials made pertinent by the switch to the Rule 56 standard. Fed.R.Civ.P. 12(b). No additional materials shall be presented by the parties in relation to the other arguments for dismissal, as the Rule 12(b)(6) standard is still being utilized. The Rule 12 and Rule 56 standards will be set forth as necessary below.
1. Exhaustion of Administrative Remedies The Court of Appeals for the Seventh Circuit held in Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7tll Cir. 1999), that exhaustion of administrative remedies pursuant to 42 U.S.c. § 1997e(a), while not jurisdictional per se, is a "precondition" to suit, regardless of the apparent futility of pursuing an administrative remedy, regardless of whether money damages are
4

sought as a tangential remedy, and regardless of notions of judicial economy. Exhaustion of administrative remedies is required before a case may be brought, even if exhaustion is accomplished during pendency of the case. See 42 U.S.c. § 1997e(a); and Perez, 182 F.3d at 534-37. Recently, in Booth v. Churner, _ U.S. _,121 S.Ct. 1819 (2001), the Supreme Court of the United States upheld the exhaustion requirement, even when only money damages are sought. The high court emphasized that procedural exhaustion is required "regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible." (ld., 121 S.Ct. at1824).
The Illinois Department of Corrections (rDOC) has adopted a grievance procedure for inmates whereby an inmate fIrst takes his complaint to a correctional counselor; if this does not resolve the problem, he is to file a written grievance on an institutional form within six months of the incident or occurrence complained of. Each institution has one or more designated grievance otticers who review such grievances. The grievance otticer reports his or her findings and recOlml1endations to the chief administrative otticer, i.e., the warden, within fifteen days, "whenever possible," and the warden is to advise the inmate of his or her decision within ten days after receipt ofthe grievance officer's report. In an emergency, an inmate may send his grievance directly to the warden. If the warden detennines that there is a substantial risk of ummnent personal injury to the inmate, the grievance is to be decided within three days.
The ummte may appeal the warden's disposition of the grievance in writing to the director of the Department of Corrections withiIl 30 days of the warden's decision. The director reviews the grievance and the responses of the grievance otticer and warden, and detennules whether the grievance requires a hearing before the Administrative Review Board. If it is detennllled that the grievance is merit]ess or can be resolved without a hearulg, the inmate is to be advised of this dispo sition withul 30 workulg days of receipt of the grievance. Otherwise, the grievance is referred to the Adlnllilstrative Review Board, which may hold hearulgs and examule witnesses. The Board
5

is supposed to submit a written report of its tindings and recommendations to the director of the Department of Corrections within 30 working days of receipt of the grievance, "whenever po ssible"; presumably within 30 working days of the Board's receipt of the grievance, not the director's. The director then has ten days to make a final detennination, again "whenever possihle." 20 Ill.Adm.Code § 504.810-850 (1998).
The complaint alleges that defendant Powers is the Medical Director of Tmmm, and that "[hle oversees the Health Care Unit at Tamms, which is responsible for providing medical and
mental health services for prisoners." (Doc. 1, p. 7, en 24). Defendant Chandra is descrihed as the
psychiatrist at Tamms, and it is alleged that "[h]e provides mental health services to prisoners at
Tmmm and administers psychotropic drugs to them" (Doc. 1, pp. 7-8, en 26). As set forth above,
Powers, Chandra mId the other individual defendants are named in Counts I-III (the constitutional dallns), III their individual mId official capacities. In addition, Counts IV and V (the ADA and Rehab Act clallns), brought agallIst the Illinois Department of Corrections, are premised upon the actions of Powers, Chandra and the other named defendants, lllsofar as they acted on behalf of the Department. Counts VI and VII set forth the remedies sought-- declaratory mId llljunctive relief, as well as dmnages.
Combing through the myriad of allegations this Court tinds that plaintiffs allege that there are systemic deticiencies III the staffing, facilities, and procedures of the mental health care system
at Tarmm, which fall under Powers' and Chandra's responsibility. (Doc. 1. p. 14, en 47(e)). Of the
individual plaintiffs, only Nelson and Boyd make specific allegations of llldividual wrollgdolllg-both agalllst Powers.
Nelson alJeges that for symptoms of excruciatlllg headaches, hlurred vision, dangerously high blood pressure, a feeling of unsteadiness, and numhness on one side "Dr. Powers chose only to prescrihe Illderal, an lllexpellsive antihypertensive agent that should not be given to Mr. Nelson
6

because it can trigger or exacerbate a serious depression." (Doc. 1, p. 25, 'I( 73). Boyd alleges that after he, Boyd, had cut his own neck and ann very badly, "Dr. Powers refused to stitch up the cuts untilmoming many hours later, when the wounds required approximately 26 stitches." (Doc. 1, pp. 27-28, '1(81). Both of these claims would fall under the ambit of Count I, the "serious medical need" claim.
A review of the Boyd I complaint/grievance reveals that Chandra is not mentioned at all, having not even started working at Tamms until April 1999. (Doc. 24, Tab 3; and Doc. 1, p. 21, '1(59). While this Court is only conceming itself with the claims against Powers and Chandra in their individual capacities, insofar as systemic allegations are contained in the Boyd I complaint/grievance, this Court does not perceive it crucial that the defendants be specifically named. Thus, all systemic allegations are considered exhausted by this Court, which may eventually prove to include conduct by Powers and Chandra in their official capacities. As to Nelson and Boyd's allegations against Powers in his individual capacity, both were contained in the Boyd I complaint/grievance and are therefore exhausted. (Doc. 24, Tab 3, <JI9[ 52 and 80, and Doc 1, Tab C).
It should be noted that plaintiff Boyd did exhaust a claim that Powers refused to believe Boyd had seizures, but no such claim appears in the present complaint. (Compare Doc. 24, Tab 3, '1(57; and Doc. 1, pp. 26-30). In addition, plaintiff Rasho exhausted a claim that defendant Chandra exacerbated his mental condition, but this claim against Chandra personally is not in the present complaint. (Compare Doc. 24, Tab 7; and Doc. 1, pp. 18-24).
In summary, no claims against defendant Chandra in his individual capacity my be pursued as no claims of individual wrongdoing have been exhausted. Consequently, all individual capacity claims against Chandra in Counts I-III should be dismissed. Only Boyd's Count I claim that defendant Powers, in his individual capacity, delayed stitching him up, and Nelson's Count I claim
7

that Powers, in his individual capacity, only prescribed Inderal have been exhausted. No other claims against Powers in his individual capacity appear in the complaint.
Personal Involvement To state a civil rights claim under Section 1983, a plaintiff must allege that: (1) the defendant(s) deprived the plaintiff of a right secured by the Constitution and laws of the United States, and (2) the defendant(s) acted under color of state law. Stevens v. Umsted, 131 F.3d 697, at 700 (7th Cir. 1997). Generally, the doctrine of respondeat superior cannot be used to impose Section 1983 liability on a supervisor for the conduct of a subordinate violating a plaintiffs constitutional rights. Lanigan v. Village of East Hazel Crest, Illinois, 110 F.3d 467, 477 (7th Cir. 1997). Although pro se prisoners' pleadings warrant the Court considering whether a defendant's position justifies an inference of personal responsibility at tlus stage, plaintiffs are proceeding with counsel and are therefore not entitled to such leluency. Luck v. Rovenstine, 168 F.3d 323,327 (7th Cir. 1999); cf Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996). Plaintiffs allege that defendant Powers, as Medical Director at Tamms, "oversees" the Health Care Ulut, and that defendant Chandra, as the psychiatrist at Tamms, provides mental health services and admiIusters psychotropic drugs. (Doc. 1, pp. 7-8). The aforementioned description of defendant Powers clearly reflects Ius supervisory role, which is relevant only to claims against hiIn in his official capacity. However, as set forth iII the preceding analysis of exhaustion, plaiIltiffs do allege individual involvement by Powers-relative to stitchiIlg up Boyd's cut and prescribing only Inderal for Nelson. (Doc. 1, p. 25, '/173; and Doc. 1, pp. 27-28, ~I 81). Those are the only two claims where personal involvement by Powers iII Ius individual capacity is sufficiently pled. Plaintiff's have failed to allege any personal iIlVolvement hy defendant Chandra iII ills
8

individual capacity. Therefore, no claims against Chandra in his personal capacity may proceed. Count I
Deliberate Indifference to a Serious Medical Need Defendants Powers and Chandra contend that plaintiffs have failed to state a viable Eighth Amendment claim in Count I regarding alleged deliberate indifference to plaintiffs' serious medicaVmental health needs. As explained above, at this point, the only viable claims which would fall under the ambit of Count I, are: (1) that Powers delayed in stitching up Boyd's neck and wrist cuts; and (2) that
Powers prescribed only Inderal for Nelson. (Doc. 1, p. 25, 1! 73; and Doc. 1, pp. 27-28, 1! 81).
Generally, the Eighth Amendment obligates prison officials to "provide humane conditions of confinement; ... [to] ensure that inmates receive adequate food, clothing, shelter and medical care, and Lto] 'take reasonable measures to guarantee the safety of the inmates.'" Farmer v. Brennan, 511 U.S. 825, 834,114 S.Ct. 1970, 1976 (1994); see also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976). The Eighth Amendment is violated when an official exhibits "deliberate indifference"--whell an official "knows of and disregards an excessive risk to llmlate health or safety[;l the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious hann exists, and he must also draw the inference. II Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. This standard is subjective, and is the equivalent of recklessness III the criIninallaw sense. Id. Mere negligence will not create liability, nor will the provision of medical treatment other than that preferred by the inmate. Estelle, 429 U.S. at 107; Burns v. Head Jailor, 576 F. Supp. 618 (N.D. Ill. 1984).
For Eighth Amendment purposes III the medical care context, the seriousness of a medical problem is gauged by such factors as the severity of the problem, the potential for hann if care is denied or delayed, and whether hann actually resulted from the lack of medical attentioll. See
9

Burns, 576 F.Supp. at 620. TIlls is an objective detenninatiol1. Davis v. Jones, 936 F.2d 971, 972 (7th Cir. 1991). Liability will not attach where the injury appeared slight, but later tumed out to be serious; however, where an injury appeared serious and later turned out to be slight, liability will attach--anything else would be gambling with another's health or life. Id. The ultimate detennination regarding the seriousness of an injury is best left to a physician, or the seriousness of the injury must be so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Id.; see also Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996).
Insofar as the defendants argue that plaintiffs have failed to allege a "serious medical need," tIus Court considers the plaintiffs' allegations sufficient at this stage in the proceedings. In order to have a claim dismissed under Fed.R.Civ.P. 12(b)(6) the moving party must meet a high standard. The purpose of a motion to dismiss is to test the sutticiency of the complaint, not to decide the merits of the case. Under the "simplified notice pleading" of the Federal Rules of Civil Procedure, the complaint's allegations should be construed liberally, and "the complaint should not be dislnissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of ills claim which would entitle lum to relief." Conley v. Gibson, 355 U.S. 41, 46 (1957). Stated another way, the plaintiff's claims must survive dislnissal if "relief could be granted under any set offacts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).
Relative to Powers' alleged delay in stitclung up Boyd's neck and wrist cuts, ullnecessary pain and suffering alone may be sufficiently serious for Eighth Amendment purposes. See Estelle, 429 U.S. at 103. Also, delay in providing medical care may be sufficient for liability. Kelley v. McGinnis, 899 F.2d 612 (7th Cir. 1990). With regard to Nelson's claim that Powers prescribed Inderal, this lIlay ultimately pan out to be no more than a disagreement regarding the proper course of treatlIlent, but at this stage in the proceedings this claim is sufficiently pled. This Court further
10

notes that the systemic aspects of Count I also are sufficiently pled, in that a broad "picture" of the plaintiffs' individual mental illness is set forth ill the complaint. Therefore, Count I should proceed.
Prior Showing of Physical Injury Suits by prisoners grounded solely on claims of psychological injury are recogIllzed under the Eighth Amendment, as "[t]he Constitution 'does not countenance psychological torture merely because it fails to inflict physical injury.'" Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997) (quoting Babcock v. White, 102 F.3d 267, 273 (7th Cir. 1996». However, "[njo Federal civil action may be brought by a prisoner confined in a jail, prison or other conectional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.c. § 1997e(e). In Zehner v. Trigg, 133 F.3d 459 (7III Cir. 1997), the Court of Appeals found the Section 1997e(e) limitation on damages constitutional. The appellate court relied in part on Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 433 (1997), a FELA case analyzing a similar restriction on psychological damages, wherein the physical injury requirement was viewed by the Supreme Court as stemming the threat of unlimited and unpredictable liability for psychological injuries. Zehner, 133 F.3d at 463. Relative to Count I, the "serious medicalueed claim," plaintiff Nelson describes suffering from depression, headaches, seizures, high blood pressure and hluned vision-all since aniving at Tamms, which implicitly persisted because Dr. Powers only prescribed Iudera!. (See Doc. 1, pp. 2425). Boyd describes Dr. Powers as leaving his cuts untreated for an extended period. (See Doc. 1, p. 28). Therefore, plaintiffs have alleged a physical injury in relation to the two individual claims perfected against Dr. Powers in Coullt I.. As detailed ahove, this Court has found no viable claims as to Dr. Chandra. This Court previously recommended that plaintiff Boyd' s claim that Dr. Powers failed to treat
11

his cuts for a prolonged period, and Nelson's claim that Powers prescribed Inderal, could not support an "excessive force" claim in relation to Count II, and that money damages were unavailable for Count II. TIns Court previously recommended that Court III be dismissed in its entirety. In any event, insofar as Count III alleges that plaintiffs were denied due process, this Court does not perceive that any physical damages have been alleged.
Accordingly, this Court recommends that the only claims upon which damages for mental or emotional injuries are available are plaintiff Boyd's Count I allegation that defendant Powers delayed in stitching up his injuries, and Nelson's Count I allegation that Powers misprescribed Inderal. As previously recommended, money damages for mental or emotional injuries alleged in Counts II and III should not be available.
Reconmlendation For the aforestated reasons, it is the RECOMMENDATION of tills Court that the defendants'motion to dismiss (Doc. 11) be GRANTED IN PART AND DENIED IN PART as indicated with respect to each issue addressed above. If the District Court adopts this recommendation in full, the principal consequences would be that: (1) all individual capacity claims against defendant Chandra in Counts I-III would be disnnssed, as no claims have been exhausted, and no personal involvement is alleged; (2) defendant Powers would remain as a defendant in his individual capacity in Count I only, and only insofar as Powers is alleged to have delayed in stitching up Boyd's cut, and Powers is alleged to have
misprescribed only Inderal for Nelson (Doc. 1, p. 25, ~[ 73; and Doc. 1, pp. 27-28, i 81); and
damages for mental and/or emotional injuries stennning from these two allegations are available; (3) all individual capacity claims against defendant Powers ill Counts II and II would be dismissed, as
12

no such claims have been exhausted and no personal involvement by Powers has been pled.

SUBMITTED: August 2, 2001

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CLIFFORifl PROUD?"
u. S. MAGISTRATE JUDGE

13

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PURSUANT to Title 28 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the United States District Court for the Southern District of Illinois, any party may serve and file written OBJECTIONS to this Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law within' ten days of service.

Please note: You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is appropriate to file OBJECTIONS, if any, to the Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law of the U. S. Magistrate Judge.

Failure to file such OBJECTIONS shall result in a waiver

of the right to appeal all issues, both factual and legal, which are

addressed in the the Report and Recommendation/Proposed

Findings of Fact and Conclusions of Law. Video Views, Inc. v

Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir.

1986).

You should mail your OBJECTIONS to the Clerk, U.S.

District Court at the address indicated below:

o 301 West Main St.

129 750 Missouri Ave.

Benton IL 62812

P.O. Box 249

East St. Louis, IL 62202

?_.,v~sed 9/29/99

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ASHOOR RASHO, FAYGIE FIELDS,

)

BRIAN NELSON, and ROBERT BOYD,

)

Individually and on behalf of the plaintiff class, )

)

Plaintiffs,

)

)

vs.

)

)

DONALD SNYDER, JR., et aI.,

)

)

Defendants.

)

Civil No. OO-S2S-DRH

REPORT AND RECOMMENDATION

PROUD, Magistrate Judge:

Before the Court is a motion to dismiss filed hy defendants Snyder, Elyea, Hopkins, DeTella, Welhom, Powers, Rhodes, Chandra and the Illinois Department of Con'ections, a supporting memorandum, plaintiffs' response thereto, and defendants' reply. (Docs. 9, 17, 24, and 26).
** Pursuant to 28 U.S.c. 636(b)(1)(B) and (C), this Report and Recommendation is respectfully

submitted to the District Court.

The Complaint On July 6, 2000, the plaintiffs, Illinois Department of Conections inmates housed at Tamms

COITectional Center, who are allegedly mentally ill, filed the ahove-captioned civil rights suit,
* pursuant to 42 U.S.c. 1983. (Doc. 1).
Plaintiffs' prefatory "Nature of the Action" is deceiving, indicating that plaintiffs are alleging

merely cruel and unusual punishment and seeking treatment and the end to discrimination against them. (See Doc. 1, p. 2). In fact, plaintiffs set forth 27 pages of factual allegations, upon which they then premise seven claims. Obviously, the plaintiffs have not heeded the directive in Federal Rule of Civil Procedure 8(e) that pleadings be "simple, concise, and direct," nor have plaintiffs taken

advantage of the liberal federal notice pleading standard. The plethora of "evidence" pled, with allegations regarding named plaintiffs intenningled with general assertions regarding the "class" further complicates matters. Drawing exclusively from the seven enumerated clain1s, the complaint alleges the following on behalf of the named plaintiffs and a proposed class of all similarly situated inmates at Tamms:
Count I - The individual defendants were/are deliberately indifferent to plaintiffs' serious mental health needs in violation of the Eighth and Fourteenth Amendments.
Count II - Unconstitutional conditions of confinement for seriously mentally ill inmates imposed by the individual defendants constitutes cruel and unusual punislmlent in violation of the Eighth and Fourteenth Amendments.
Count III - The individual defendants have violated the plaintiffs' state-created liberty or property interest in being provided with adequate and humane care in the fonn of mental health treatment by mental health professionals who exercise their professional judgment in delivering treatment (created by the Illinois Mental Health and Developmental Disabilities Code, 405 ILCS 512102), thereby denying them due process under the Fourteenth Amendment.
Count IV - The Illinois Department of Conections discriminated against the plaintiffs on account of their serious mental illness in violation of the Americans with Disabilities Act, 42 U.S.c. § 12101 et seq. (ADA).
Count V - The Department of Conections discriminated against the plaintiffs on account of their serious mental illness in violation of the Rehabilitation Act, 29 U.S.c. § 794 (Rehab Act).
The plaintiffs seek declaratory relief (Count VI), as well as injunctive relief, and compensatory and punitive damages (Count VII).
These claims may be familiar to the District Court as plaintiffs voluntarily dismissed a virtually identical law suit in June 2000, Boyd v. Snyder, 99-280-DRH.
2

Arguments for Dismissal The defendants responded to plaintiffs' Amended Complaint by filing a motion to dismiss and supporting memorandurn, presenting seven arguments for dismissal, one of which is that

plaintiffs failed to exhaust available administrative remedies prior to filing this action under 42 U.S.c § 1983, as required by Section803(d) of the Prison Litigation Ref01111 Act of 1996 (PLRA) (Title VII of Pub.L. 104-134, 110 Stat. 1321 (effective April 26, 1996) codified as 42 U.S.C § 1997e(a». (Doc. 17). More specifically, defendants contend that plaintiffs have not exhausted

administrative remedies in regard to the allegations in paragraphs 34, 35, 47a-f, 47h, 47j, 63, 64 and 91 b of the complaint. Because exhaustion is a precondition for hringing suit, this issue will he addressed first. See Perez v. Wisconsin Deparlment of Corrections, 182 F.3d 532, 534-535 (7th Cir.1999).
The other arguments for dismissal raised by the defendants are:

2. Plaintiffs have not alleged injuries sufficient to satisfy the physical injury requirement under 42 U.S.C § 1997e(e).

3. Plaintiffs have failed to allege sufficient personal involvement on the part of defendants Snyder, DeTella, Elyea, Hopkins and Welho111 to sustain liability under 42 U.s.C § 1983.

4. The complaint fails to state a cause of action under the ADA or Rehab Act.

5. The complaint fails to state a due process claim under the Illinois Mental Health and Developmental Disahilities Act.

6. The defendants are all entitled to qualified immunity, as no clearly established rights were violated, and the conditions at Tamms do not violate the Eighth Amendment; and the individual defendants sued in their official capacities and the IDOC are immune from damages under the Eleventh Amendment.

7.

Plaintiffs' requests for injunctive relief are inadequately pled.

3

Fed.R.Civ.P. 12(b)(6) v. Fed.R.Civ.P. 56 Defendants utilize the caption "Motion to Dismiss," but they do not base their motion on a specific procedural rule. Federal Rule of Civil Procedure 12(b)(6) pertains to responsive pleadings seeking dismissal for failure to state a claim upon which relief can be granted-the type of pleading the subject motion appears to be. However, Rule 12(b) dictates that if matters outside the pleadings are presented to and 110t excluded by the court, the 12(b)(6) motion shall be treated as a motion for summary judgment and disposed of in accordance with Federal Rule of Civil Procedure 56. Although defendants do not submit any additional matters for consideration, plaintiffs do, having attached an inch-thick stack of exhibits relative to the exhaustion issue. (Doc. 24). Because the only copy of the amended complaint from Boyd v. Snyder, 99-280-DRH (which served as the grievance upon which this case is basedl) is contained in plaintiff's response (Doc. 24, Tab 3), the Court has little choice but to consider tins material and apply the Rule 56 standard of review. However, insofar as no materials outside of the pleadings are considered with regard to the other arguments for dismissal, the Court considers the Rule 12(b)(6) standard of review still applicable. Consequently, in their responses to this Report and Recommendation regarding exhaustion, all parties may present any materials made pertinent by the switch to the Rule 56 standard. Fed.R.Civ.P. 12(b). No additional materials shall be presented by the parties in relation to the other arguments for dismissal, as the Rule 12(b)(6) standard is still being utilized. The Rule 12 and Rule 56 standards will be set forth as necessary below.
lFrom a practical standpoint, the plaintiffs' many prior grievances (Doc. 24, Tabs 4-8) became irrelevant once the amended complaint/grievance was submitted. Defendants have taken issue only with those enumerated paragraphs which are not verbatim ii·Oln the amended complaint/grievance.
4

1. Exhaustion of Administrative Remedies The Court of Appeals for the Seventh Circuit held in Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7t11 Cir. 1999), that exhaustion of administrative remedies pursuant to 42 U.S.c. § 1997e(a), while not jurisdictional per se, is a "precondition" to suit, regardless of the apparent futility of pursuing an administrative remedy, regardless of whether money damages are sought as a tangential remedy, and regardless of notions of judicial economy. Exhaustion of administrative remedies is required before a case may be brought, even if exhaustion is accomplished during pendency of the case. See 42 U.S.c. § 1997e(a); and Perez, 182 F.3d at 534-37. Recently, in Booth v. Churner, _U.S. _,121 S.Ct. 1819 (2001), the Supreme Court of the United States upheld the exhaustion requirement, even when only money damages are sought. The high court emphasized that procedural exhaustion is required "regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible." (Id., 121 S.Ct. at1824). The Illinois Department of Corrections (lOOC) has adopted a grievance procedure for inmates whereby an inmate first takes his complaint to a correctional counselor; if this does not resolve the problem, he is to file a written grievance on an institutional foml within six months of the incident or occurrence complained of. Each institution has one or more designated grievance officers who review such grievances. The grievance officer reports his or her findings and recommendations to the chief administrative officer, i.e., the warden, within fifteen days, "whenever possible," and the warden is to advise the inmate of his or her decision within ten days after receipt of the grievance officer's report. In an emergency, an inmate may send his grievance directly to the warden. If the warden detemlines that there is a substantial risk of imminent personal injury to the inmate, the grievance is to be decided within three days. The inmate may appeal the warden's disposition of the grievance in writing to the director of the Department of Corrections within 30 days of the warden's decision. The director reviews the
5

grievance and the responses of the grievance officer and warden, and detennines whether the grievance requires a hearing before the Administrative Review Board. If it is detennined that the grievance is meritless or can be resolved without a hearing, the inmate is to be advised of this disposition within 30 working days of receipt of the grievance. Otherwise, the grievance is referred to the Administrative Review Board, which may hold hearings and examine witnesses. The Board is supposed to submit a written report of its findings and recommendations to the director of the Department of Corrections within 30 working days of receipt ofthe grievance, "whenever possible"; presumably within 30 working days of the Board's receipt of the grievance, not the director's. The director then has ten days to make a final determination, again "whenever possible. 20 Ill.Adm.Code § 504.810-850 (1998).
Defendants contend that plaintiffs have not exhausted administrative remedies with regard to the allegations in paragraphs 34, 35, 47a-f, 47h, 47j, 63, 64 and 91 b of the complaint. Plaintiffs counter that the defendants have forfeited their right to require exhaustion by impeding plaintiffs' efforts to exhaust at every turn by refusing to grant or deny grievances based on procedural rules which defendants subsequently acknowledged did not even exist. PlaintiHs further argue that the objectionable paragraphs are not legal or factual issues, but rather are merely "details" of the claims pled.
Insofar as plaintiffs contend that the defendants have forfeited their right to reqUIre exhaustion, with waiver of the exhaustion requirement being the appropriate remedy or sanction for obstructionist tactics utilized by prison authorities to stymy a perspective prisoner-plaintiff. Perez and Booth make it clear that the Court has no discretion in this area. See Perez, 182 F.3d at 535; and Booth, 121 S.Ct. at 1824. Furthennore, if a plaintiff has not attempted to grieve an issue, difficulties in pursuing the grievance through the administrative process are irrelevant.
6

The plaintiffs in tlns case were eventually able to pursue their grievance through the entire administrative process. The grievance included a copy of the amended complaint from Boyd v. Snyder, 99-280-DRH. However, plaintiffs admittedly added a few new "details" to the complaint. Therefore, the Court must detennine whether these "details" are distinct problems or claims, materially different from the problems or claims presented through the grievance process.
Because of the federal notice pleading standard, a prisoner's complaint is often less detailed than Ins or her grievance. In any event, there is no requirement under 42 U.S.c. § 1997e(a) that the complaint milTor the grievance word for word; nor is there a specificity requirement under the Illinois grievance procedures. The purpose of the exhaustion requirement is to give prison authorities an opportunity to resolve or 11alTOW issues before a suit is tiled. See Perez, 182 F.3d at 535. Booth emphasizes that bringing the problem to the attention of prison authorities is the goal of Section 1997e(a), as opposed to aITiving at the solution desired by the plaintiff Most recently, Smith v. Zachary, 2001 WL 723010 (7Ut Cir. June 28, 2001), elaborated that grievances provide "prompt notice of problems," and the administrative review process, at a minimum, gives some initial consideration to "the basics of who-did-what-to-whom").
Of course, since this case has not been certified as a class action, the Court is concemed only with whether the four named plaintiffs have exhausted all issues. Insofar as the amended complaint/grievance refers to various systemic problems affecting all plaintiffs or all the mentally ill inmates, the allegations will be considered exhausted as to the four named plaintiffs, as prison ot'ticials reviewing the amended complaint/grievance recognized that the individual plaintit't's were and are a part of the collective. 2 (See Doc. 1, Tab C).
2Wllile the defendants may initially be inclined to balk at tlns, it is important to keep in mind that tlns in 110 way alters the factual and legal standards for proving the requisite personal involvement of the defendants, or damages.
7

Paragraph 34 (Doc.!, p. 10) Paragraph 34 appears under the subsection "ALLEGAnONS OF FACT." It alleges "Mentally ill prisoners also are punished by the use of excessive force by prison guards"- followed by general assertions that officials unofficially condone such behavior through "an atmosphere of terror and brutality, " where prisoner complaints aren't investigated and guards go unpunished. None of the seven counts of the complaint specifically assert an "excessive force" clailu Count II does allege that the "unconstitutional conditions" violated the plaintiffs' Eighth Amendment rights to be free from cruel and unusual punishment, based upon paragraphs 1-88 of the complaint. "Excessive force" does fall under the ambit of the Eighth Amendment and is considered a "condition of confinement." Smith v. Zachary, 2001 WL 723010 (7th Cir. June 28, 2001). However, a different legal standard applies to such claims. See Hudson v. McMillian, 503 U.S. 1, 7-11 (1992); and Rhodes v. Chapman, 452 U.S. 337, 345-347 (1981). In any event, neither the complaint in tIlls case, nor the amended complaillt/grievance allege that a named defendant exerted excessive force agaillst a named plaintiff. Thus, the four plaintiffs have failed both to state a viable claim, and to administratively exhaust this issue. Regardless of the type of relief sought, how are prison officials to attempt to investigate or remedy such a problem- plaintiffs' grievance omits the "who" and the "to whom" of the problem, and only vaguely alludes to the "what." Plaintiffs Rasho and Boyd's individual grievances do raise allegations of particular incidents of excessive force, but not by named defendants; they also do not allege the systemic problems mentioned ill paragraph 34. (See Doc. 24, Tab. 4). Therefore, this Court recommends that it be clarified that paragraph 34 canHot fonn the basis of a claim for relief, by itself or ill relation to Count II, the "conditions of confinement" claim In short, there is no excessive force claim.
8

Paragraph 35 (Doc. 1, pp. 10-11) The allegations in paragraph 35 of the complaint fairly minor those in paragraph 43(c) of the amended complaint/grievance. Therefore, paragraph 35 can serve as a basis for liability, as the plaintiffs pursued the amended complaint/grievance until it was denied by the Administrative Review Board in all respects. (Doc. 1, Tab C). Paragraph 47(a) (Doc. 1, p. 15) Paragraph 47(a) mirrors paragraphs 28 and 43(a) of the amended complaint/grievance. Therefore, paragraph 47(a) can serve as a basis for liability, as the plaintiffs pursued the amended complaint/grievance until it was denied by the Administrative Review Board in aU respects. (Doc. 1, Tab C). Paragraph 47(b) (Doc. 1, p. 15) Paragraph 47(b) fairly mirrors paragraph 43(b) of the amended complaint/grievance. Therefore, paragraph 47(b) can serve as a basis for liability, as the plaintiffs pursued the amended complaint/grievance until it was denied by the Administrative Review Board in all respects. (Doc. 1, Tab C). Paragraph 47(c) (Doc. 1, p. 15) Paragraph 47(c) alleges that punishment is masquerading as treatment at Tamms- four examples are set forth as subparagraphs (i)-(iv). Subparagraph (i) minors paragraphs 28, 43(j) and 43(k) of the amended complaint/grievance. Therefore, 47(c)(i) can serve as a basis for liability, as the plaintiffs pursued the amended complaint/grievance until it was denied by the Administrative Review Board in all respects. (Doc. 1, Tab C). Subparagraph 47(c)(ii) pertains to guards handling inmates more roughly than is necessary
9

when [mentally ill] inmates are being brought to the Health Care Unit, or while they are in the Unit. As discussed above in regard to paragraph 34, the nature of an excessive force claim (even for purposes of declaratory or injunctive relief) make it virtually impossible for prison authorities to attempt to investigate or remedy such a problem- plaintiffs' grievance omits the "who" and the "to whom" of the problem, and only vaguely alludes to the "what." Therefore, 47(c)(i) cannot serve as the basis for liability on its own, or as the basis of any other constitutional claim, as it cannot be said to be fairly exhausted.
Subparagraph 47(c)(iii) pertains to withholding "talking therapy." TIllS allegation was presented in the amended complaint/grievance as paragraph 43(c)(iv). Therefore, 47(c)(iii) can serve as a basis for liability, as the plaintiffs pursued the amended complaint/grievance until it was denied by the Admilllstrative Review Board in all respects. (Doc. 1, Tab C).
Subparagraph 47(c)(iv) of the complaint generally alleges that prisoners are being denied their right to send and receive mail (including legal mail), and their right to toiletries. These problems are not raised ill the amended complaint/grievance. Plaintiff Rasho individually tiled a grievance regarding defendant Rhodes keeping him from receiving legal mail in the Health Care Unit. (Doc. 24, Tab 5). Therefore, only Rasho may utilize a deillal of legal mail as a basis for liability. None of the other aspects of 47(c)(iv) may serve as the basis for liability for Rasho or any of the other plaintiffs.
Paragraph 47(d) (Doc. 1, p. 16) Paragraph 47(d) of the complaint retlects the allegations set forth in paragraphs 43(d) and 67 of the amended complaint/grievance. Therefore, paragraph 47(d)can serve as a basis for liability, as the plaintiffs pursued the amended complaint/grievance until it was denied by the Administrative Review Board in all respects. (Doc. 1, Tab C).
10

Paragraph 47(e) (Doc. 1, p. 16) Paragraph 47(e) alleges that defendants Rhodes and Chandra allow security concerns to compromise their prisoner-plaintiffs, e.g. breaching confidentiality by sending reports to non-medical personnel, and keeping inmates uncomfortably shackled during treatment sessions, with guards present in the room Plaintiff Boyd's individual concel1lS regarding confidentiality of mental health sessions and records is retlected in paragraph 56 of the amended complaint/grievance. Plaintiff Nelson's personal concel1lS about being uncomfortable situated during treatment sessions, and his confidentiality concel1lS were pursued via the grievance system (See Doc. 24, Tab 6). Therefore, Boyd and Rasho may pursue their respective issues, but that is the extent that paragraph 47(e) has been exhausted. Paragraph 47(0 (Doc. 1, p. 16) Paragraph 47(f) of the complaint mInors paragraph 43(e) of the amended complaint/grievance regarding elevated security wing F-l, except that paragraph 47(f) encompasses the recent addition of a second elevated the complaint, refening to "elevated security wings." This Court does not perceive a material difference between the grievance and the complaint. Therefore, Paragraph 47(t) is deemed exhausted. Paragraph 47(h) (Doc. 1, p. 17) In paragraph 47(h) of the complaint the plaintiffs complain of delayed assessment and treatment of the mentally ill or decompensating inmates. Three reasons for delay are specified: (i) sketchy records; (ii) deliberate delay in responding by conectional officers; and (iii) a systemic refusal to treat. These allegations are a reasonably fair reflection of those presented in paragraphs 43(g) and 43(m) of the amended complaint/grievance. Therefore, paragraph 47(h)can serve as a basis for liability, as the plaintiffs pursued the amended complaint/grievance until it was denied by
the Administrative Review Board in all respects. (Doc. 1, Tab e).
11

Paragraph 47(j) (Doc. 1, p. 17) The allegations in paragraph 47(j) of the complaint are representative of those presented in paragraphs 43(i) mId 65 of the amended complaint/grievance mld are therefore deemed exhausted. Paragraph 63 (Doc. 1, p. 22) Paragraph 63 pertains specifically to plaintiff Rasho, alleging that he has been placed in a Specialized Treatment Unit where he and four others receive therapy designed to modify their behavior but not treat their illness. Plaintiff asserts that plaintiff Rasho' s individual grievances regarding the Specialized Treatment Unit serve to exhaust the issue raised in paragraph 63. However, a comparison reveals that Rasho was not grieving behavior moditication or any other sort of treatment. (See Doc. 24, Tab 7). Rasho was grieving the conditions of the Unit, not treatment or behavior modification. Therefore, paragraph 63 cannot serve as a basis for Uability. Paragraph 64 (Doc. 1, p. 22) Paragraph 64 states: "The combination of insensitive, hostile treatment, and haphazard administration of potent mind-altering drugs has been devastating for Mr. Rasho, who wishes every day to be released from Tamms." This paragraph cannot be said to be a problem or claim per se, as it is entirely too vague to be said to allege a constitutional violation. Therefore, paragraph 64 cmmot fonn the basis of liabiUty. Paragraph 91(b) (Doc. 1, p. 32-33) Paragraph 91(b) is a part of Count IV, the ADA claim. It alleges that the IDOC discriminated against plaintiffs on account of their disabilities by failing to reasonably accommodate class members' disabilities and thereby increasing the severity of their illnesses by such methods as adjudicating discipUnary charges without reference to their mental health records, and failing to assist them with the grievance process, and thwarting their efforts to exhaust their grievances. Plaintiffs Rasho and Nelson did pursue grievances asserting that their efforts to exhaust were being
12

obstru(;ted. (See Doc. 24, Tab 8). None of Rasho or Nelson's grievances pertained to disciplinary charges. Therefore, only plaintiffs Rasho and Nelson may use paragraph 91(b) as a basis for liability, and only regarding alleged ohstruction of their efforts to pursue grievan(;es.
2. Prior Showing of Physical Injury Suits by prisoners grounded solely on daims of psyd1010gkal injury are recognized under the Eighth Amendment, as "[tlhe Constitution 'does not (;OI.llltenance psydlOlogkal torture merely be(;ause it fails to intlkt physi(;al injury.'" Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997) (quoting Babcock v. White, 102 F.3d 267, 273 (7th Cir. 1996». However, "[nJo Federal (;ivil action may be brought by a prisoner (;oniined in ajail, prison or other (;OlTe(;tional fa(;ility, for mental or emotional injury suffered while in (;ustody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). In Zehner v. Trigg, 133 F.3d 459 (7r11 Cir. 1997), the Court of Appeals found the Section 1997e(e) limitation on damages (;onstitutional. The appellate court relied in part on Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 433 (1997), a FELA (;ase analyzing a similar restriction on psychologi(;al damages, wherein the physi(;al injury requirement was viewed by the Supreme Court as stennning the threat of unlimited and unpredictable liability for psychological injuries. Zehner, 133 F.3d at 463. Defendants contend that the only physical injuries alleged by the plaintiffs were self-inflicted, and thus insuftkient to satisfy the "physical il~ury" requirement. A review of the (;omplaint reveals multiple general assertions that the overall conditions at Tamms have (;aused mentally ill inmates "tomlenting pain," and have driven those inmates to attempt suicide and physi(;ally mutilate thenlselves. (See Doc. 1, pp. 3, 9-10, and 14). It is also alleged that unidentified inmates have heen sprayed in the face with (;austic, burning (;hemkals. (See
13

Doc. 1, pp. 10 and 17). Plaintiff Rasho' s individual injuries consist of attempted suicide, selfmutilation, and vomiting blood (cause unspecified). (See Doc. 1, pp. 18, 20-22). Plaintif'f Fields, who has also attempted suicide at Tamms, complains of emotional pain, migraine headaches and stomach pains. (See Doc. 1, p. 23). Plaintiff Nelson describes suffering from depression, headaches, seizures, high blood pressure and blulTed vision-all since alTiving at Tamms, and implicitly as a result of Dr. Powers not prescribing the proper medication(s). (See Doc. 1, pp. 24-25). Plaintiff Boyd has allegedly suffered the effects of attempted suicide and self-mutilation. (See Doc. 1, pp. 26-8). In addition, Boyd describes Dr. Powers, a named defendant, as leaving his cuts untreated for an extended period, and unidentified guards macing him, bruising him, and slamming his head into a wall, cutting open his forehead. (See Doc. 1, p. 28).
Defendants cOlTectly perceive that pennitting self-inf1icted injuries to satisfy Section 1997e(e) would tum the rey uirement on its ear and destroy Congress's attempt to distinguish valid from invalid claims. In Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997), a claim for money damages premised upon "the telTor, psychological hann and deterioration, and suicide attempts" was found not to constitute a "physical injury" for purposes of Section 1997e(e). Therefore, the plaintiffs' self-inflicted physical injuries, which allegedly resulted from the conditions of confinement at Tamms, cannot support their clailJ1.'> for money damages, and those claims must be dismissed insofar as money damages are sought. Nevertheless, in Doe, the Court of Appeals noted that, although money damages were not available for such a claim, injunctive and declaratory relief remain available without a prior physical injury. Doe, 110 F.3d at 524, FN 4.
With regard to exhaustion of administrative remedies, and paragraph 34 in particular, this
14

Court has concluded that plaintiffs have failed to exhaust their administrative remedies as to any individualized excessive force claims which could arguably fall under Count II. Consequently, with regard to Count II alone, plaintiff Boyd's claim that Dr. Powers failed to treat his cuts for a prolonged period, and that guards physically injured him, fail despite his properly pleading a physical injury. Insofar as Boyd alleges that Dr. Powers' delay in stitching up his injuries caused bin1 hanD, a Count I "deliberate indifference to a serious medical need claim" remains viable. The other general allegations about being maced and suffering "pain" are too amorphous to be construed as pleading a physical injury for purposes of Count II and Section 1997e(e).
TIns Court does not perceive any physical injuries to have been pled in regard to Count III, the due process claim. In any event, for reasons set forth below, tlns Court is recommending that Count II be dismissed.
Accordingly, this Court recommends that the claims for monetary damages set forth in Count I against all defendants except Powers3 , and all claims for money damages in Counts II and III be disnnssed (just insofar as monetary damages are sought for mental or emotional injuries); these claims should proceed insofm' as other remedies are sought.
3. Personal Involvement Defendants Snyder, DeTella, Elyea, Hopkins and Welbom argue that they cannot be held liable via a theory ofrespondeat superior in Counts I-III, which are brought pursuant to 42 U.S.c.
*1983. To state a civil rights claim under Section 1983, a plaintiff must allege that: (1) the
defendant(s) deprived the plaintiff of a right secured by the Constitution mId laws of the United
3Powers' liability will be addressed by separate Report and Recommendation. 15

States, and (2) the defendant(s) acted under color of state law. Stevens v. Umsted, 131 F.3d 697, at 700 (7th Cir. 1997). Generally, the doctrine of respondeat superior cannot be used to impose Section 1983 liability on a supervisor for the conduct of a subordinate violating a plaintiffs constitutional rights. Lanigan v. Village of East Hazel Crest, Illinois, 110 F.3d 467, 477 (7th Cir. 1997). This is not a heightened pleading requirement as plaintitls suggest. Although pro se prisoners' pleadings walTant the Court considering whether a defendant's position justifies an inference of personal responsibility at this stage, plaintifJs are proceeding with counsel and are therefore not entitled to such leniency. Luck v. Rovenstine, 168 F.3d 323, 327 (7th Cir. 1999); cf Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996).
Plaintiffs allege that defendants Snyder, as IDOC Director, Eleyea, as IDOC Medical Director, Hopkins, as IDOC Chief of Medical Services, DeTella, as IDOC Associate Director, and Welborn, as Warden of Tamms, all have "overall responsibility," or in Welbom's case, ''ultimate responsibility," for the complained of conditions of confinement. (Doc. 1, p. 7). In addition, it is alleged that Snyder has "personal, first-hand knowledge of the operations at Tamms;" and that DeTella has "personal knowledge of most transfer decisions, including the decision to transfer many of the seriously ill prisoners who have been sent to Tamms." (Doc. 1, p. 7).
None of the aforementioned allegations of personal involvement are sufficient to sustain individual liability under Section 1983- they all describe supervisory authority, not actual personal involvement. PlaintifJs appear to confuse establishing the requisite mens rea by showing a pattem of conduct or systemic and gross deficiencies with pleading personal involvement- such logic puts the cart before the horse. PlaintifJs have not pled that any of the aforementioned supervisory
16

defendants personally fonnulated or implemented any of the complained of po lides and practices; therefore, they cannot face personal liability. See Armstrong v. Squadrito,152 F.3d 564, 581 (7th Cir. 1998). Therefore, defendants Snyder, DeTella, Elyea, Hopkins and Welborn cannot be held personally liable, in their individual capacities, in Counts I-III. However, insofar as Counts I-III are brought against them in their official capacities, these claims may proceed, as personal involvement is not required.
4. The Adequacy of Plaintiffs' ADA and Rehab Act Claims The ADA Claim Plaintiffs' ADA claim, Count IV, is brought pursuant to Title II of the Act, 42 U.S.c. § 12131. Plaintiffs concede that controlling precedent in the Seventh Circuit dictates that Title II ADA claims can only proceed in state court, but they explain that Count IV was fonnulated in expectation that that precedent would soon be upset when the Supreme Court ruled on Board of Trustees of the University of Alabama v. Garrett. (Doc. 24, pp. 14-15). Board (~lTrustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) has been decided. The Supreme Court ruled that Title I claims against a state are barred by the Eleventh Amendment, which is what the Seventh Circuit concluded in Ericson v. Board (~l Governors for Northeastern Illinois University, 207 F.3d 945 (7lh Cir. 2000). Garrett (and Ericson) involved Title I, not Title II. Nevertheless, the high court can be said to have affinned the underlying rationale upon which the Seventh Circuit based its decision regarding Title II, Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000). In any event, Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), still controls, holding that Title II ADA claims cannot proceed in federal court, but rather should be brought in state court. Therefore, Count IV, the ADA claim, should be dismissed. The Rehab Act Claim Count V alleges that the IDOC violated Section 504 of the Rehab Act, 29 U.S.c. § 794. To
17

state a prima facie case, plaintiffs must allege: (l) that they are "handicapped individuals" under the Act; (2) that they are "otherwise qualified" for the benefit(s) sought; (3) that they were discriminated against solely by reason their handicap(s); and (4) that the program or activity in question receives federal financial assistance. Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 119 (7111 Cir. 1997). Defendants argue that: (1) the plaintiffs have not properly pled that they are "disabled" for purposes of the Act; (2) plaintiffs are not "otherwise qualified" for the benefit(s) sought; and (3) plaintiffs have not been denied access to programs or services that non-disabled inmates enjoy, nor have they been denied reasonable accommodation.
"Disability" is defined as "a physical or mental impainnent that substantially limits one or more major life activities." 29 U.S.c. § 705. The Rehab Act regulations provide a representative list, defming the teml to include "functions such as caring for one's self, perfonning manual tasks, walking, seeing, hearing, speaking, breathing, leaming, and working." 45 C.F.R. § 84.3(j)(2)(ii).
Conley v. Gibson, 355 U.S. 41, 46 (1957). All well-pled facts and allegations in the plaintiffs complaint must be taken as true. Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986). The plaintiff is entitled to all reasonable inferences that can be drawn from the complaint. Ellsworth v. Racine, 774 F.2d 182, 184 (7th Cir. 1985). Under those parameters, this
Court has no trouble in concluding that, if the descriptions of the plaintiffs' individual situations set forth in the complaint are true, they would each qualify as "disabled" under the Act. (See Doc. 1, pp. 18-30; see also Bragdon v. Abbott, 524 U.S. 624, 638-639 (1998». The descriptions of the plaintiffs in the complaint evoke a vemacularism of the day, "they just aren't right."
With regard to the assertion that plaintiffs are not "otherwise qualified", their Rehab Act claim is premised upon the following: (1) their being unjustifiably isolated by being sent to Tamms; (2) failure to accommodate their mental conditions by adjudicating their disciplinary chmges
18

without reference to their mental health records and by not assisting them in navigating the grievance process; (3) denying them access to programs, activities and services such as: contact with other prisoners, access to jobs, rehabilitation and educational programs, group therapy, outdoor exercise, communal religious programs, an adequate law library, art supplies and personal property, telephone privileges, and contact visits; (4) segregating some of them on an elevated security wing where it is chaotic, noisy and isolated, and where less mental health treatment is offered than elsewhere in Tamms.
"'Otherwise qualified' means that were [they] not handicapped, [plaintiffs] would have
qualified for the program or treatment Ithey were1denied because of [their] handicap. 'An otherwise
ljualitied person is one who is able to meet all of the program's reljuirements in .\pite of [theirl handicap. '" Grzan, 104 F.3d at 120 (quoting Southeastern Community College v. Davis, 442 U.S. 397,406 (1979». The purpose of a motion to dismiss is to test the sufticiency of the complaint, not to decide the merits of the case. Conseljuently, whether plaintiffs are truly "otherwise qualified" constitutes a mixed ljuestion of law and fact which must remain for trial.
For the aforestated reasons, the Rehab Act claim, Count V should proceed. 5. The Viability of Plaintiffs' Due Process Claim
Count III alleges that the individual defendants have violated the plaintift·s' state-created liberty or property interest in being provided with adeljuate and humane care in the fonn of mental health treatment by mental health professionals who exercise their professional judgment in delivering treatment (created by the Illinois Mental Health and Developmental Disabilities Code, 405 ILCS 512-102), thereby denying them due process under the Fourteenth Amendment. Defendants contend that plaintiffs have no liberty or property interest stemming from the Illinois Mental Health and Developmental Disabilities Code (MHDDC). More specifically, it is argued that plaintiffs are not "recipients of services" under the MHDDC and the MHDDC is inapplicable to the IDOe.
19

In pertinent part, the MHDDC provides that "LaJ recipient of services shall be provided with adequate and humane care and services in the least restrictive environment, pursuant to an individual services plan ...." 40S ILCS S/2-102(a). "Services" are defined as "treatment or habilitatioll." 40S ILCS S/I-11S. "Treatment" is limited that which is provided hy "mental health facilities." 40S ILCS S/I-128. A "mental health facility" is detined as "any licensed private hospital, institution, or facility or section thereof, and any facility, or section thereof, operated by the State or a political subdivision thereof for the treatment of persons with mental illness and includes all hospitals, institutions, clinics, evaluation facilities, and mental health centers which provide treatment for such persolls." 40S ILCS S/I-114. However, a "State-operated mental health facility" is nalTowly defined as "a mental health facility operated by the Department [of Human ServicesJ." 40S ILCS S/I114.1; and S/1-10S. Plaintiffs completely ignore Section 1-114.1, focusing only on Section 1-114. There is nothing in the record to suggest that Tamms is anything but a Department of COlTections facility, and that the mental health professionals at Tannns fall under the amhit of the IDOC.4
Insofar as the plaintiffs could he said to he receiving "habilitation," such services must be provided by "developmental disabilities facilities. 40S ILCS S/I-I11. A "developmental disability facility" is defined as being "licensed or operated by or under contract with the State or a political suhdivision thereof which admits persons with a developmental disahility few residential and habilitation services." 40S ILCS S/I-107. This Court does not perceive Tamms to fall under that definition. Furthennore, application of the MHDDC to the IDOC would conflict with 730 ILCS 5/37-7, which leaves the mental health care of committed persons to the IDOC. See generally C.}. v.
4The plaintiffs' situation is distinguishahle from that of the plaintiffs in Barichello v. McDonald, 98 F.3d 948 (7u\ Cir. 1996), in that the Barirhello plaintiffs were involuntarily connnitted as untit to stand trial, and they were treated at the Elgin Mental Health Center, which was run by the Department of Mental Health and Developmental Disahilities.
20

Department ofMental Health and Developmental Disabilities, 693 N.E. 2d 1209, 1213 (Ill.App. 1sl Dist. 1998) (recognizing that, with regard to those acquitted by reason ofinsanity who have been involuntarily conmIitted for mental health treatment, in the event of a conflict with the MHDDC, the Code of Corrections, 730 ILCS 5/5-2-4(k), controls).
For the aforestated reasons, this Court does not find that the MHDDC is applicable to the plaintiffs and the IDOC; thus the MHDDC canHot provide the basis of the plaintiffs' due process claint Consequently, Count III should be dismissed.
6. The Eleventh Amendment and Qualified Immunity The Eleventh Amendment Defendants Snyder, Elyea, Hopkins, DeTella, Welbom, Powers, Rhodes and Chandra are all sued in both their individual capacities and their official capacities. (Doc. 1, pp. 7-8). Counts I-III pertain only to the individual defendants. The IDOC is also sued, obviously as an agency of the State of Illinois. (Doc. 1, p. 6). Counts IV and V pertain only to the IDOC. Counts VI mId VIl, which only set forth the remedies plaintiff seek in relation to Counts I-V, relate to all of the individual defendants, as well as the IDOC. Insofar as Counts I-III are premised upon 42 U.S.c. § 1983, the money damages sought via Count VII may only be sought from the defendants individually; otlicial capacity suits are actually suits against the State and the Eleventh Amendment bars such damages actions. Kentucky v. Graham, 473 U.S. 159, 166-167 and 169 (1985). Therefore, all Section 1983 claims against the individually named defendants in their official capacities for money damages (Counts I-III and VIl) should be dismissed in that limited respect. Insofar as injuIlctive and declaratory relief is sought against these individuals in their official capacities, those claim.'.;, Counts I-III by way of Counts VI and VII, remain viable. Canedy v. Boardman, 91 F.3d 30, 33 (71h Cir. 1996); see also Will v.
21

Michigan Department of State Police, 491 U.S. 58,71 FN 10 (1989). Similarly, the Eleventh Amendment bars claims for money damages from the IDOC. Will
v. Michigan, 491 U.S. 58 (1989). Therefore, insofar as Counts IV and V, by way of Count VII, seek money damages, theses claims must be dismissed in that limited respect.
Qualified Immunity Defendants further argue that the individual defendants are entitled to qualified immunity in relation to all damages claims. Qualitied immunity shields govemment officials perfomnng discretionary functions ii-om liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of wInch a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Defendants acknowledge that prison inmates have an Eighth Amendment right to be confined under conditions that provide "adequate food, clothing, shelter, and medical care_" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984». However, defendants stress that it is established that prison conditions may be harsh and uncomfortable without violating the Eighth Amendment's prohibition against cruel and unusual punishment. See Farmer, 511 U.S. at 833-34;and Dixon v. Godinez, 114 F.3d 640,642 (7th Cir. 1997). Citing Bruscino v. Carlson, 854 F.2d 162 (7111 Cir. 1988), finding no fault with the harsh conditions of confinement at the maximum security U.S.P. Marion, Illinois, defendants assert that the conditions of continement at Tamms have essentially passed constitutional muster. The glaring t1aw in the defendants' logic is that Bruscino pertains to U.S.P. Marion, not Tamms. Even if Tamms were run along the lines of Marion, the plaintiffs' general claim is that the conditions at Tamms have crossed the line, so to speak- that Tamms is worse than U.S.P. Marion. Such nnxed questions of law and fact cannot be decided in a motion to dismiss. The Court could sift through the myriad of individual examples of allegedly unconstitutional conditions set forth in
22

the complaint and strike some of the examples, but that would ignore that the plaintiffs are essentially challenging the totality of the conditions of confinement at Tamms. Although some conditions, when considered alone, do not constitute an Eighth Amendment violation, the cumulative effect may. Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997). Therefore, this Court considers it premature to rule on the defendants' qualified immunity argument.
7. Injunctive Relief Defendants consider plaintiffs' claim for injunctive relief, Count VII, to be inadequately pled. More specifically, defendants assert that plaintiffs have failed to demonstrate that they have no adequate remedy at law, and that irreparable hann will result. Defendants correctly cite Abbott Labs. v. Mead Johnson & Co., 971 F. 2d 6, 11-12 (711! Cir. 1997) for the proposition that in order to obtain a preliminary injunction the aforementioned elements must be demonstrated. However, the plaintiffs have not sought a preliminary injunction. The fonnat of plaintiffs' complaint is not helpful, in that the prayer for injunctive relief is set forth as a separate claim, tied to the substantive claims (which are themselves a mishmash of individual capacity and official capacity claims). Under the liberal federal notice pleading standard, at tIns stage in the proceedings, on a motion to dismiss, dismissal would be inappropriate. Of course, the scope of any injunction that could issue would be linnted in accordance with 18 U.S.c. § 3626.
Recommendation For the aforestated reasons, it is the RECOMMENDATION of this Court that the defendants' motion to disnnss (Doc. 9) be GRANTED IN PART AND DENIED IN PART as indicated with respect to each issue addressed above. If the District Court adopts tlns recOImnendation in full, the principal consequences would be that: (1) the claims for monetary damages set forth in Count I against all defendants except
23

Powers , and all claims for money damages in Counts II and III he dismissed (just insofar as

monetary damages are sought for mental or emotional injuries); these claims should proceed insofar

as other remedies are sought. pursuant to 42 U.S.c. § 1997e(e); (2) all claims against defendants

Snyder, DeTella, Elyea, Hopkins and Welhom in their individual capacities (Counts I-III) would be

dismissed; (3) Count IV, the ADA claim, would he dismissed for lack of jurisdiction; and (4) Count

III, the due process claim, would be dismissed for failure to state a claim Only Counts III and IV

would he dismissed in their entirety; Counts I, II, V, VI and VII would survive in some manner; and

no defendants would be dismissed out of the entire case.

SUBMITTED: August 2, 2001

n ' (l CU~ F~D .

=t.<t' g". ~-i--r--:{
PROUD/ -

~~

u. S. MAGISTRATE JUDGE

24

' ,

.

i l!'( )}

N O -

-

PURSUANT to Title '78 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the United States District Court for the Southern District of Illinois, any party may serve and file written OBJECTIONS to this Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law within- ten days of service.

Please note: You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is appropriate to file OBJECTIONS, if any, to the Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law of the U. S. Magistrate Judge.

Failure to file such OBJECTIONS shall result in a waiver

of the right to appeal all issues, both factual and legal, which are

addressed in the the Report and Recommendation/Proposed

Findings of Fact and Conclusions of Law. Video Views, Inc. v

Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir.

1986).

You should mail your OBJECTIONS to the Clerk, U.S.

District Court at the address indicated below:

o 301 West Main St.

129 750 Missouri Ave.

Benton IL 62812
"-",'-'leed 9/29/99

P.O. Box 249 East St. Louis, IL 62202

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

FILED

ASHOOR RASHO, FAYGIE FIELDS, BRIAN NELSON, and ROBERT BOYD, Individually and on behalf of the plaintiff class,

SEP 18 2001~
ClERK. U.S. DISTRICT COURT SOUTHERN DISTRICT OF ILLi,\j':"llS
EAST ST lOUIS CFF,CE

Plaintiffs,

vs.

DONALD SNYDER, Jr., Director, Illinois Department of Corrections,WILLARD O. ELYEA, M.D., Medical Director, Illinois Department of Corrections, DENNIS HOPKINS, M.D., Chief of Mental Health Services, Illinois Department of Corrections, GEORGE E. DETELLA, Associate Director, Illinois Department of Corrections, GEORGE WELBORN, Warden, Tamms Correctional Center, MARVIN POWERS, M.D., Medical Director, Tamms Correctional Center, KELLY RHODES, Ph.D., Supervising Clinical Psychologist, Tamms Correctional Center, RAKESH CHANDRA, M.D., Psychiatrist, Tamms Correctional Center, and ILLINOIS DEPARTMENT OF CORRECTIONS, a public entity,

Defendants.

No.OO-CV-0528-DRH

MEMORANDUM AND ORDER

Herndon, District Judge:

On July 6, 2000, the Plaintiffs, a group ofprison inmates held at Tamms Correctional

Center, filed this action complaining of the terms and conditions of their confinement. (Doc. 1).

Although all the defendants together filed one motion to dismiss, this Memorandum and Order takes

up another motion to dismiss filed by two ofthose defendants, Marvin Powers and Rakesh Chandra.

(Doc. 11). On August 2,2001, Magistrate Judge Proud issued a Report and Recommendation ("the

Report") pursuant to 28 U.S.C. §636(b)(1)(B). (Doc. 47). The Report recommends that this Court

grant in part and deny in part Powers' and Rakesh's motion to dismiss, based inter alia on the

plaintiffs' failure to exhaust administrative remedies, and their failure to allege the direct, personal

involvement of these defendants.

The Report was sent to the parties with a notice informing them of their right to

appeal by way offiling "objections" within ten days of service ofthe Report. To date, neither party has filed objections. 1 The period in which to file objections has expired. Therefore, pursuant to 28

U.S.C. §636(b), this Court need not conduct de novo review. Thomas v. Arn, 474 U.S. 140, 149-52

(1985).

Accordingly, the Court ADOPTS the Report (Doc. 47). Powers' and Rakesh's

motion to dismiss (Doc. 11) is GRANTED IN PART and DENIED IN PART. The individual

capacity claims against Chandra in Counts I, II, and III are DISMISSED. Defendant Powers

remains as a defendant in his individual capacity in Count I only, and only as to the allegation that

he delayed stitching up Boyd's cut, and that he allegedly mis-prescribed the drug Inderal for Nelson

(Doc. 1, p. 25, ~73; Doc. 1, pp. 27-28, ~81). All individual capacity claims against Powers in Counts

II and III are DISMISSED.

IT IS SO ORDERED.

k Signed this

day of C;;tpt(ft\h.r

,2001.

I~--
DAVID R. HERNDON United States District Judge

lThe failure to file objections with the district judge waives the right to appeal all issues, both factual and legal. See Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986); Lorenzten v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cr. 1995), cert. denied 517 U.S. 1136 (1996).
2

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

FILED

ASHOOR RASHO, FAYGIE FIELDS, BRIAN NELSON, and ROBERT BOYD, Individually and on behalf of the plaintiff class,

SEP 18 2001_V
SOCULTEHREKR, NU.SD.ISDTISRTICRTICOTFCIOLL'lilJ,·R~:';i:3 EAST ST. LOUIS OFFiCE

Plaintiffs,

vs.

DONALD SNYDER, Jr., Director, Illinois Department of Corrections, WILLARD O. ELYEA, M.D., Medical Director, Illinois Department of Corrections, DENNIS HOPKINS, M.D., Chief of Mental Health Services, Illinois Department of Corrections, GEORGE E. DETELLA, Associate Director, Illinois Department of Corrections, GEORGE WELBORN, Warden, Tamms Correctional Center, MARVIN POWERS, M.D., Medical Director, Tamms Correctional Center, KELLY RHODES, Ph.D., Supervising Clinical Psychologist, Tamms Correctional Center, RAKESH CHANDRA, M.D., Psychiatrist, Tamms Correctional Center, and ILLINOIS DEPARTMENT OF CORRECTIONS, a public entity,

Defendants.

No.OO-CV-OS28-DRH

MEMORANDUM AND ORDER Herndon, District Judge:
On July 6, 2000, the Plaintiffs, a group ofprison inmates held at Tamms Correctional Center, filed this action complaining of the terms and conditions of their confinement. (Doc. 1).

The Defendants moved to dismiss the Complaint on various grounds. On August 2, 200 I, Magistrate Judge Clifford Proud submitted a Report and Recommendation ("the Report") pursuant to 28 U.S.C. §636(b)(I)(B). (Doc. 48). The Report recommends that this Court grant in part and deny in part the Defendants' motion to dismiss, based inter alia on the plaintiffs' failure to allege the personal involvement ofsome defendants, the Court's lack ofjurisdiction, and the failure to state a claim upon which relief can be granted.
The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" within ten days of service ofthe Report. To date, neither party has filed objections. 1 The period in which to file objections has expired. Therefore, pursuant to 28 u.S.C. §636(b), this Court need not conduct de novo review. Thomas v. Arn, 474 U.S. 140, 149-52 (1985).
Accordingly, the Court ADOPTS the Report (Doc. 48). The Defendants' motion to dismiss (Doc. 9) is GRANTED IN PART and DENIED IN PART. The claims for monetary damages set forth in Count I against all defendants except Marvin Powers, M.D., are DISMISSED. All claims for money damages in Counts II and III, only insofar as they are sought for mental or emotional injuries, are DISMISSED; Counts II and III shall proceed insofar as the Plaintiffs seek other remedies. All claims against defendants Donald Snyder, George DeTella, Willard O. Ellyea, M.D., Dennis Hopkins, M.D., and George Welborn, in their individual capacities, as set forth in Counts I, II, and III, are DISMISSED. Count III (Due Process) is DISMISSED entirely, for failure to state a claim upon which relief can be granted. Count IV (Americans with Disabilities Act) is
IThe failure to file objections with the district judge waives the right to appeal all issues, both factual and legal. See Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986); Lorenzten v. Anderson Pest Control, 64 F.3d 327, 330 (1h Cr. 1995), cert. denied 517 U.S. 1136 (1996).
2

DISMISSED entirely, for lack ofjurisdiction. No Defendant is dismissed out of the entire case.

IT IS SO ORDERED.

~ Signed this

day of

S-.tttt~

,2001.

~~~
DAVID R. HERNDON United States District Judge

3

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ASHOOR RASHO, FAYGIE FIELDS, BRIAN NELSON, and ROBERT BOYD,
Plaintiffs, vs. DONALD N. SNYDER, JR., et aI.,
Defendants.

)

)

)

)

)

)

Civil No. 00-528-DRH

)

) )

FILED

)

NOV 0 6 2001

REPORT AND RECOMMENDATION PROUD, Magistrate Judge:

CLERK. U.S. DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS OFFICE

Before the Court is the plaintiffs' motion for class certification and their memorandum of

law in support thereof, along with defendants' response and plaintiffs' reply. (Docs. 29, 38, 41

and 45). Pursuant to 28 U.s.c. §§ 636(b)(l)(B) and (C), tlllS Report and Recommendation is

respectfully submitted to the District Court.

The Nature of the Case

The named plaintifls, Rasho, Fields, Nelson and Boyd, all prisoners at Tamms

Correctional Center!, contend that they and all other "seriously mentally ill prisoners" housed at Tamms, presently and in the future2, are subject to conditions of confinement and systemic

deliberate indifference to their mental health needs amounting to cruel and unusual pUlllshment

!Boyd was transferred from Tanmls, but he argues that ills claims are not moot because they are capable of repetition- presumably meaning that he could be transferred back to Tamms at any time. (See Doc. 45, p. 22 fn 10; see also fn2 of this Order).
2Plaintifls recognize that, because only declaratory and injunctive relief is sought on behalf of the class, inmates who were but are not now at Tamms would not be a part of the class, except insofar as they nllght subsequently retum to Tamnls. (Doc. 45, p. 3 fnl).
1

in violation of the Eighth Amendment, and in violation of the Rehabilitation Act, 29 U.S.c. § 794. 3 (Doc. 1). With respect to the proposed class claims for declaratory and injunctive relief (Counts VI and VII), plaintiffs pray that the Court will declare the rights and relations of the parties, enjoin the defendants from further treading on plaintiffs' rights, and taking any action deemed necessary to further that end. (See Doc. 1, pp. 34-35).
Although the complaint includes 27 pages of factual allegations, in general terms plaintiffs contend that extreme social isolation, restricted environmental stimulation, severely restricted movement, and harsh punishment for problematic behavior caused by mental illness cause "tonnenting pain." (Doc. 1, p. 3). Plaintiffs further allege that the overall mental health care system at Tmmns does not comport with constitutional standards, particularly with respect to screening and diagnosis. (Doc. 1, pp. 5 and 15). Plaintiffs perceive a cycle where the combination of conditions cause seriously mentally ill inmates to decompensate mentaIJy, which leads to problematic behavior, which leads to punishment (often masquerading as treatment), which worsens their mental illness, leading again to more problematic behavior. (See Doc. 1, pp. 8-11). Plaintiffs opine that "Tmmns lacks the cOImnitment of a psychiatrist to oversee individual monitoring and treatment, mId instead utilizes multiple pill-pushing psychiatrists who under-diagnose mental ilhlesses mId let security concems compromise their duties to their prisoner-patients. (Doc.I, p. 16).
3Count III, alleging a Fourteenth Amendment violation of state-created liberty and/or property interests stelmning from the Illinois Mental Health mId Developmental Disabilities Code, 405 ILCS 5/2-102), and Count IV, alleging discrimination under the Americans with Disabilities Act, 42 V.S.c. § 12101 et seq., have both been dismissed.
2

Federal Rule of Civil Procedure 23
Class certification pursuant to Federal Rule of Civil Procedure requires a two-stage
analysis. First, the "prerequisites" to a class action must be met:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a).
Second, a class action must be "maintainable," in that one of the following applies:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate tinal injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court tinds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation conceming the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P.23(b).
3

Plaintiffs believe that they comport with all of the prerequisites of Rule 23(a), as well as Rule 23(b)(1) and (2). Defendants oppose class certification arguing that plaintiffs do not meet the Rule 23(a) prerequisites, and their claims are not maintainable under Rules 23(b)(l) or (2). The thrust of defendants' opposition is aimed at the "numerosity" and "commonality" requirements. Defendants contend that there are far too few inmates presently at Tamms who fit the class definition to warrant class status, and that the individual nature of each inmate's confinement, illness and treatment predominates over their shared experience of confinement. Defendants repeatedly indicate that since the filing of this action a special treatment unit has been established for seriously mentally ill inmates, and that new policies prevent seriously mentally ill inmates from being transferred to Tamms, "except in the rarest of cases." (Doc. 41, p. 4).
Class Definition "It is axiomatic that for a class action to be certified a 'class' must exist." Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981). "If the conceived injury is abstract, conjectural or hypothetical. .. instead of real, immediate or direct, the complaint fails to cite an actual case or controversy under Article III of the Constitution." 0 'Shea v. Littleton, 414 U.S. 488, 493-94 (1974). Therefore, the class definition must be clarified before any meaningful analysis under Rule 23 may be undertaken. According to the complaint:
TIus action is brought by the named plaintiffs on behalf of all prisoners who are now...40r will be hereafter incarcerated at Tannns who have serious mental illnesses, defined as a substantial disorder of thought and mood which significantly impairs the judgment, behavior, and capacity to recognize reality or
4Again, plaintiffs no longer desire to include those inmates who were at Tmmns in the past, but have since left, so the reference to those who "have been before" is omitted.
4

cope with the ordinary demands life within the prison environment and is manifested by substantial pain or disability. (Doc. 1, p. 4). Defendants do not attack the class definition per se; rather, in accordance with Rule 23(a)(1), they argue that there are simply too few "seriously mentally ill" inmates presently at Tamms to make joinder impracticable. Defendants contend that only Rasho fits the definition. (Doc. 41, Exhibit B, pp. 3-4). Defendants further argue that new Department of Corrections Administrative Directive 05.12.110 drastically limits the possibility that seriously mentally ill inmates will be transferred into Tamms in the future-thereby limiting the prospective class. Plaintiffs assert that the class is sufficiently identifiable as initially defined. However, plaintiffs' expert utilizes a broader definition of "serious mental illness." (Doc. 45, Exhibit 1). Plaintiffs insist that all four of them fit the definition. (Doc. 45, Exhibit 1, p. 5). Nevertheless, plaintiffs propose an altemate defInition, a so-called "records definition," premised upon Illinois Department of Corrections Administrative Directive 05.12.110, § II(G)(3), which is now utilized to identify those whose mental status may preclude their placement at Tamms. (Doc. 41, Exhibit B attachment: IDOC Admin. 05.12.110). Under the proposed altemate scheme, medical and lnaster tile records would be reviewed for indicia of serious mental illness or serious mental health concems. As plaintiff acknowledges, "[t]he benetits of this definition are obvious: class members could be identified based on undisputed factors." (Doc. 45, p. 11). Administrative Directive 05.12.110 dictates a pre-placement review of medical and master tile records for indicia of serious mental illness- so called "concems." For purposes of
5

the Directive, "seriously mentally ill" is defined as being found to have current symptoms, or currently being treated for certain Axis I diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV). (Doc. 41, Exhibit B attachment: IDOC Admin. 05.12.110, § 2(E) (emphasis added)). However, in most situations, Section 3(G) encompasses those with mental health concems noted within the past two years. This Court recommends adopting a general two-year time limit.
It should be noted that even if Section II(G)(3) criteria/concems are appreciated, it merely triggers further review by Mental Health staff to detennine whether the inmate is "seriously mentally ill," and whether placement at Tamms is appropriate, either in general placement or in the Special Treatment Unit. (Doc. 41, Exhibit B attachment: IDOC Admin. 05.12.110, § II(G)(5)). Thus, the altemate records definition would include those inmates who may not have been ultimately deemed "seriously mentally ill" by prison officials but who plaintiffs contend should be receiving mental health treatment and who are being subjected to the allegedly objectionable conditions of confinement.
A medical condition is serious if failing to treat it could lead to further significant injury or unnecessary and wanton infliction of pain. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.1997). A medical condition is likely to be serious when it causes chronic and substantial pain, significantly affects the individual's daily activities, or involves an injury that a reasonable doctor or patient would find important and worthy of treatment. ld. The records definition would appear to capture all imnates with psychological injuries that have merited some notation within the last two years. The records definition also seems to confonn with plaintiff's' burden of showing that the officials are "aware of facts from which the inference could be drawn that a
6

substantial risk of serious hann exists, and they must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 937 (1994).
Plaintiffs suggest altering the Directive to (1) include those diagnosed with certain disorders which can be considered life-long, regardless of whether the inmate is symptomatic or in treatment; and (2) number and intensity of symptoms of the (Axis I) disorder. (Doc. 45, Exhibit 1, pp. 3-4; and Exhibit 2). Including those who are not symptomatic or in treatment in this case is counter to the interests of the nmned plaintiffs and those who already would fall within the scope of Directive 05.12.110, § II(G)(3). (See discussion in re Typicality below). Broadening the defInition to include those with "mmly" signs mld symptoms is amorphous and destroys the appealing ease of using the records definition. The recommended two-year parmneter is sufficient to protect plaintiffs' concems.
Administrative Directive 05.12.110, § II(G)(3)- unaltered- is moderately broader than plaintiffs' initial proposed class definition, but it is far more discemable. It is also consistent with the notion that the Eighth Amendment protects against conditions that are sure or very likely to cause future hann See Helling v. McKinney, 509 U.S. 25, 33-34 (1993). Thus, this Court recommends adoption of the altemate class defInition proffered by plaintiff, the so-called "records definition," albeit without the two modifications suggested by plaintiffs. With regard to whether the class should include those who may be transferred to Tamms in the future, for reasons addressed in relation to the adequacy of representation, this Court does not find that plaintiff's have met their burden on this point. Consequently, the recommended class should be limited to those presently at Tmnms.
7

Numerosity As plaintiffs and defendants note, there is no magic number which satisfies the Rule 23(a)(1 ) requirement that joinder of all members of a class be impracticable. Nevertheless, plaintiffs note that Toney v. Rosewood Care Center, Inc. of Joliet, 1999 WL 199249 (N.D.Ill. March 31, 1999), held that 40 is generally believed to be sufficient. 5 Plaintiffs estimate the number of class members to be 44 and 113, based on a 1997 study that estimated that 8-19% of prisoners have psychiatric disorders that result in significant functional disabilities. (Doc. 38, pp. 4-5 fn 5 (citing Jeffrey L. Metzner, M.D., An Introduction to Correctional Psychiatry: Part I, J.Am. Acad. Psychiatry Law, Vol. 25, No. #,1997, p. 376). Defendants claim the number of class members presently at Tamms is no more than five. (Doc. 41, p. 4 (citing Exhibit B, Affidavit of Dr. Hopkins, Chief of Mental Health Services for the IDOC». There are problems with each side's estimates. Plaintiffs' calculations assume that the average is 10-20%, which is inconsistent with the source study cited, which indicates 8-19 %. If Tamms houses between 260-500 inmates, as the Warden's affidavit indicates (see Doc. 41, exhibit A), the potential class range would be between 21 and 95 inmates. Because Tamms has never held more than 280 inmates, the more realistic range is between 22 and 53 inmates- if'the 8-19% average is accurate, which defendants dispute. More important, the study cited by plaintifIs is not specific to Tamms, so the 8-19% figure is not dispositive. In contrast, defendants' estimate of five is at least supported by the affidavit of Dennis P.
5Reliance on Toney and other district court cases, whether from within or outside the Seventh Circuit, is misplaced, as a district court's decision does not have precedential authority. Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998).
8

Hopkins, the psychologist who is Chief of Mental Health Services for the Illinois Department of Corrections, who arrived at his estimate after reviewing all Tmmns inmates' initial screening mld orientation evaluations and relevant testing. (Doc. 41, Exhibit B, ,)[15). Of course, Hopkins is himself a defendant, so his records review and conclusion must be taken with a grain of salt. Insofar as defendants attempt to limit the "future" class members, defendmlts can say with certainty only that Directive 05.12.110 is likely to limit the number of seriously mentally ill inmates housed at Tmmns, not that the Directive eliminates their housing at Tmmns. (See Doc. 41, Exhibit B, ')[ 6).
This Court has not conducted mly additional evidentiary hearings regarding class certification. This Court frnds the briefs, affidavits and exhibits submitted by the parties to be sufficient. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001) (directing that a judge make whatever factual and legal inquiries are necessary under Rule 23 when a key factor is in dispute, resolving disputes based on evidence received, even if only by affidavit). One would assume that the parties have put forth their best evidence. See Local Rule 7.1(a). Based on the evidence received, plaintiffs have not carried their burden. '''[A]ctual, not presumed confonnance with Rule 23(a) remains ... indispensable.'" Szabo v. Bridgeport Machines, Inc., 249 F.3d at 677 (quoting General Telephone Co. v. Falcon, 457 U.S. 147,160 (1982».
Even accepting the 22-53 estimate extrapolated using plaintiffs' study, joinder is not out of the question. Pmticularly since it is likely that a large number of opt-outs will occur once potential class members recognize that money dmnages are not available to them in this case.
9

Commonality Rule 23(a)(2) requires that there be "questions of law or fact common to the class." "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2). Common nuclei of fact typically manifest where ... the defendants have engaged in standardized conduct towards members of the proposed class. . .. [F]actual variations among class members' grievances do not defeat a class action." Keele v. Wexler, 149 F.3d 589,594 (7th Cir. 1998) (citations and internal quotations omitted). A. Conditions of Confinement (Count II) With regard to plaintiffs' conditions of confinement claim, common question of fact and law clearly exist. The alleged extreme social isolation, restricted enviromnental stimulation, severely restricted movement, and harsh punishment for problematic behavior appear to be conditions applicable to all inmates, the effects of which allegedly cause the seriously mentally ill "tonnenting pain." B. Medical/Psychiatric Indifference (Count I) Plaintiffs' medical/psychiatric indifference claim is pled as an attack on the overall mental health care system at Tamms. (Doc. 1, p. 5). Allegations of inadequate screening and identification of mental ilhless, and indifference to the treatment of the mentally ill prisoners are also pled as systemic problems. Thus, there is a common core of facts involved. C. The Rehab Act (Count V) A common nucleus of operative fact is not present in relation to plaintiffs' Rehab Act claim (Count V). A practice of not allowing seriously mentally ill inmates access to programs may exist, but that is one aspect of the factual inquiry necessary for a Rehab Act clann
10

To state a prima facie case under Section 504 of the Rehab Act (29 U.S.c. § 794), plaintiffs must allege: (1) that they are "handicapped individuals" under the Act; (2) that they are "otherwise qualified" for the benetit(s) sought; (3) that they were discriminated against solely by reason their handicap(s); and (4) that the program or activity in question receives federal financial assistance. Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 119 (7th Cir.1997).
"Disability" is detined as "a physical or mental impairment that substantially limits one or more major life activities." 29 U.S.C. § 705. The Rehab Act regulations provide a representative list, detining the tenn to include "functions such as caring for one's self, perfonning manual tasks, walking, seeing, hearing, speaking, breathing, leaming, and working." 45 C.F.R. § 84.3(j)(2)(ii). Conley v. Gibson, 355 U.S. 41, 46 (1957). As a class, seriously mentally ill inmates may very well be said to be "disabled" as a group.
In contrast, the "otherwise qualified" element requires each individual's situation to be evaluated. '''Otherwise qualified' means that were [theYI not handicapped, [plaintiffs] would have qualitied for the program or treatment [they were] denied because of [their] handicap. 'An otherwise qualified person is one who is able to meet all of the program's requirements in spite ofLtheir] handicap. '" Grzan, 104 F.3d at 120 (quoting Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979».
Plaintiffs cite Vaughn v. Sullivan, 83 F.3d 907 (7t1l Cir. 1996), as an example of a certified class action Rehab Act case. The Rehab Act claim at issue in Vaughn is distinguishable from what is at issue in this case. The Vaughn class consisted of non-blind disabled persons who, essentially, felt they were denied equal protection because a State benefits scheme gave more
11

favorable economic treatment to the blind by excluding a larger portion of their eamings from a benefits eligibility calculation. The only factor that distinguished between how recipients under the State benefits scheme were treated was whether or not the recipient was blind. In contrast, prison "benefits"-programs and privileges- may properly be denied for a variety of reasons, such as security concems. See 20 Ill. Admin. Code §§ 415.60 (placement in specialized mental health care setting), 420.40 (removaVreassignment), and 425.60 (religious activities). Class members' individual characteristics will certainly predominate over their one common characteristic, serious mental illness. Therefore, plaintiffs' Rehab Act claim (Count V) fails to meet the "commonality" prerequisite of Rule 23(a)(2), which precludes class certification.6
Typicality Rule 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. Cormnonality and typicality are closely related. ld. At first blush, it would seem that the systemic constitutional violations alleged by plaintiffs would each meet the typicality requirement, since both are premised upon certain "threshold" constitutional standards for conditions and/or treatment. These sorts of claims are often litigated in class fonn See Bruscino v. Carlson, 854 F.2d 162 (7th Cir. 1988) (class action challenging conditions of confinement at U.S.P. Marion); and Lightfoot v. Walker, 486 F.Supp. 504 (S.D.Ill. 1980) (class action challenging the adequacy of the health care system at Menard Correctional Center). However, the circumscribed class and the nature of the legal issues, particularly the possible defenses, cause individualized legal arguments to predominate. Neither
6Having failed to satisfy the cormnonality requirement, the Rehab Act claim will not be analyzed further in this Report and Recommendation. Should the District Court conclude that there is a COlmnon nucleus of fact, tins Court will gladly provide further analysis of tins claim
12

Count I nor Count II satisfy the typicality requirement. An appreciation of the elements of an Eighth Amendment claim helps to illuminate just how atypical the legal aspects of this case are likely to become.
The Eighth Amendment prohibits the infliction of "cruel and unusual punishment.,,7 U.S.Const. amend. VIII. Confinement in a prison and the accompanying "conditions of confinement" fall under the ambit of "punishment" subject to Eighth Amendment scrutiny. Rhodes v. Chapman, 452 U.S. 337, 345-356 (1981). Medical and mental health treatment are considered "conditions of confinement." See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Wilson v. Seiter, 501 U.S. 294, 303 (1991); and Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.1983).
There are two elements to an Eighth Amendment claim, one objective, the other subjective. First, the deprivation alleged must be, objectively, "sutticiently serious"- meaning a prison otticial's act or omission must result in the denial of "the minimal civilized measure of life's necessities." Second, the defendant prison otticial, subjectively, must have a "sutticiently culpable state ofmind"- meaning "deliberate indifference." Farmer, 511 U.S. at 834. The two-pronged objective/subjective test applies whether the offensive condition affects all inmates or only one. See Wilson v. Seiter, 501 U.S. 294, 300 fn 1 (1991).
Relative to the objective element, "[n]o static 'test' can exist by which courts detenmne whether conditions of confinement are cruel and unusual, for the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing
7The Eighth Amendment is applicable to the States via the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666 (1962).
13

society.'" Rhodes, 452 U.S. at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). However, Rhodes v. Chapman identifies three guiding principles applicable when conditions of confinement compose the punishment at issue: (1) conditions must not involve the "wanton and unnecessary infliction of pain;" (2) conditions may not be "grossly disproportionate to the severity of the crime warranting imprisonment;" and (3) conditions, alone or in combination, should not deprive imnates of "the minimal civilized measure oflife's necessities"- "basic human needs." Rhodes, 452 U.S. at 347.
With respect to "deliberate indifference," the subjective element: a prison otlicial cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the otlicial knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious hann exists, and he must also draw the inference. Farmer, 511 U.S. at 837. This element does not evaporate in class actions. See generally Wilson v. Seiter, 501 U.S. 294, 300-301 (1991). A fact fmder may conclude that a defendant drew this inference from "the very fact that the risk was obvious." Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996). A. Conditions of Confinement (Count II) The proposed plaintiff' class consists of only those Tannns inmates who are "seriously mentally ill," not all Tarruns inmates. Plaintiffs complain of the "harsh and psychologically injurious conditions." (Doc. 1, p. 2). More specifically, plaintiffs make a blanket assertion that the sensory deprivation, near-total isolation, restricted movement and harsh punishment, while hannful for most prisoners, are "more agonizing for the seriously mentally ill," and "bring tonnenting pain." (Doc. 1, p. 3; see also p. 5). Plaintiffs' legal claim can be said to be typical
14

with regard to individual and class members. In essence, plaintiffs cite a common cause having a common effect on similar! "eggshell" plaintiffs. However, such an "eggshell" theory, premised upon notions of pain, will undoubtedly raise a multitude of individualized legal defenses.
With regard to the objective element, plaintiffs must first overcome the fact that they have essentially conceded that the conditions of confinement are not unconstitutional per se, because not all inmates are alleged to be hanned. The obvious defense is to attack the notion that there is a common effect and a common cause. Each plaintiffs' mental condition will be explored in an attempt to show that blanket conclusions cannot be made. The conditions of confinement issues will quickly meld into individual diagnosis and treatment issues, which are supposedly not at issue in this case (see Doc. 45, p. 19), blurring the line between the two constitutional claims. Further complicating matters, there are now two different areas of the prison involved, the general population area and the new Special Treatment Unit (STU); some of the named plaintiffs are housed in the STU, some are not. (See Doc. 41, Exhibit B, pp. 3 and 5).
Similarly, the subjective element, deliberate indifference, will generate a multitude of legal defenses. The fact that not all inmates at Tamms are alleged to be affected begs the question, how were prison otIicials to know who would be caused an unconstitutional amount of pain?
B. Medical/Psychiatric Indifference (Count I) Plaintiffs' treatment claim generally revolves around the following allegations:
Defendants do not screen prisoners adequately when they are transferred to Tamms to detemrine if they are seriously mentally ill, they do not examine them adequately as they continue to reside at Tamms to detennine if they have decompensated to a greater degree than they would have at another facility, and they do not remove prisoners from Tamms even when they know that the
15

prisoner's placement at Tamms has caused him to decompensate mentally. (Doc. 1, p. 9).
Mental health treatment at Tamms lacks the commitment of a psychiatrist to identify and treat in an individualized manner those prisoners suffering from serious mental disorders. Instead, the prison has bee served by a series of psychiatrists whose main function if to oversee the individual monitoring, evaluation, and treatment of prisoners. (Doc. 1, p. 16). Systemic deficiencies in prison and/or psychiatric care, such as statling, facilities or procedures, are well suited for class treatment. See Wellman v. Faulkner, 715 F.2d 269 (7tlo Cir. 1983). However, the named plaintiffs' claims clearly illustrate that individual disputes about evaluation and treatment predominate, not systemic deficiencies. (See Doc. 1, pp. 18-30). For example, plaintiff Rasho complains that he does not have as good a relationship with his psychiatrist at Tamms as he had with his psychiatrist at Pontiac Correctional Center; he takes issue with the medications prescribed; he does not like the diagnosis of the Tamms health care professionals; and he takes issue with the behavior modification therapy offered at Tamms. Plaintiff Nelson complains about adverse side effects after his medications were changed; he also feels that Tamms mental health care staff minimize his symptoms. Plaintiff Boyd takes issue with being administered psychotropic drugs; he considers waiting ovemight to stitch his cuts to be too long; and he does not like the conditions of confinement of a suicide watch. Plaintitl"s focus on the easily discemable class detinition and the overarching, systemic claims, as they must to merit class certification. The use of a class action to examine the unique environment at Tamms, the impact on the mentally ill, and the mental health care system seems very appealing, but that does not mean that the Court can ignore the glaring realities of how the
16

case is likely to be litigated. See generally Isaacs v. Sprint, 261 F.3d 679 (7th Cir. 2001). The

Court may look beneath the surface of the complaint to conduct the Rule 23 inquiries and in

exercise of its discretion. Szabo v. Bridgeporl Machines, Inc., 249 F.3d 672, 677 (7th Cir.

2001). As this Court has attempted to illustrate, the many subtly different legal arguments

pertinent to these Eighth Amendment issues overwhelm the COimnon issues plaintiffs would

prefer to focus on.

Adequacy of the Class Representatives

Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect

the interests of the class." As a preliminary matter, to be an adequate class representative, the

named plaintiff(s) must fall within the class definition at the time the class action is certified.

Sosna v. Iowa, 419 U.S. 393, 403 (1975). In addition, Rule 23(a)(4) has been interpreted to

require the court to assess the class lawyer's competence before certifying a suit to proceed as a class action. Greisz v. Household Bank (Illinois), N.A., 76 F.3d 1012, 1013 (7th Cir. 1999).

A. Plaintiff Boyd and Prospective Transferees

Plaintiff Boyd has been transferred fi'om Tamms. "If a prisoner is transferred to another

prison, his request for injunctive relief against officials of the first prison is moot unless he can

demonstrate that he is likely to be retransferred. Allegations of a likely retransfer may not be based on mere speculation." Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (internal

citations and quotations omitted).

Boyd

argues

that

his

claims

are

not

moot

because

they

are

capable

of

repetition

8 -

8To fall within the "capable of repetition" exception to the mootness doctrine, the alleged injury must be of inherently limited duration and likely to happen again to the same complaining
17

presumably meaning that he could be transferred back to Tamms at any time. (See Doc. 45, p. 22 fn 10). Boyd offers no more than this assertion. Defendants counter that a new policy, Department of Corrections Administrative Directive 05.12.110, prevents seriously mentally ill inmates from being transferred to Tamm.'i, "except in the rarest of cases." (Doc. 41, p. 4; and Exhibit B, p. 4). Thus, defendants leave open the possibility of repetition. However, since plaintiff has the burden on this issue, this Court finds that the possibility of being retransferred to be too speculative to satisfy Rule 23(a)(4). Furthermore, this Court does not construe the complaint as attacking the new screening policy, so the interests of prospective seriously mentally ill transferees are not represented.
B. Plaintiffs Rasho, Fields and Nelson The parties disagree on the proper diagnosis for plaintiffs Rasho, Fields and Nelson. Utilizing the records definition, this Court finds that Rasho and Nelson fall within the class definition, but not Fields. Even Dr. Hopkins (Chief of Mental Health Services for the State of Illinois and a named defendant) finds that Rasho is severely mentally ill. Rasho has been placed in the Tamms "Special Treatment Unit"(Doc. 41, exhibit B, p. 5), which further indicates that he fits the records definition. It appears that Nelson falls under the records definition, in that he was diagnosed with and has been treated for a listed Axis I disorder within the last two years. (See Doc. 41, Exhibit 1, pp. 5-6).
party. Murphy v. Hunt, 455 U.S. 478, 482 (1982); see also Tobin/or Governor v. Illinois State
Ed. 0/ Elections, 2001 WL 1173227, *9 (7th Cir. Oct. 5, 2001).
18

Plaintiff Fields does not fall under the records definition as it stands now; he would if the definition were expanded to include those with an Axis I diagnosis, but who are not symptomatic or under treatment. (See Doc. 41, Exhibit 1, pp. 6-7; and Doc. 45, Exhibit B, p. 4). For reasons set forth in detail above, this Court does not recommend expanding the records definition.
C. Plaintiffs' Counsel Defendants do not take issue with plaintiffs' counsel. (See Doc. 41, pp. 17-18). The attomeys presently representing the plaintiffs are affiliated with the University of Chicago Law School. A review of the record in this case and its predecessor, Boyd v. Snyder, 99-2S0-DRH, demonstrates that the attomeys are committed in tenns of time and money to litigate this matter to fruition. Compared with many of the class actions prosecuted in this district, tins case is not likely to involve tremendous expenditures, or overly complex legal issues. This Court perceives plaintiffs' counsel as being more than adequate for the task at hand.
Propriety and Value of Utilizing the Class Action Device The Subdivision (b) of Rule 23 is aimed at evaluating the propriety and value of utilizing the class action device. See Fed.R.Civ.P. 23, Advisory Committee Notes, 1966 Amendment, Subdivision (b)(l). The considerations enumerated in Rule 23(b) ret1ect the difficulties likely to arise if separate actions were prosecuted, as well as factors relevant to the propriety of joinder under Federal Rule of Civil Procedure 19. Id. Rule 23(b) provides that a class action must be "maintainahle," in that one of the following applies: (1) the prosecution of separate actions hy or against individual members of the
19

class would create a risk of CA) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or CB) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate fInal injunctive relief or conesponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation conceming the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; CD) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P.23(b).
Plaintiffs argue that subdivisions (b)(l) and Cb)(2) both apply. (Doc. 45, p. 23).
Defendants counter that the predominate individual nature of the claims ensures that there is not
a risk of inconsistent verdicts; and that individual treatment issues relevant to the requisite mens
rea are antithetical to a class action and remedy. (Doc. 41, pp. 19-21).
For the reasons set forth above regarding "typicality," this Court is of the opinion that
proceeding as a class is not appropriate under either Rule 23(b)(l) or (2). In brief, Eighth
Amendment conditions of confinement and treatment claims are routinely prosecuted by
individuals in the same prison, even though the same conditions and treatment protocols often
apply systemically, because medical and/or mental health concems are by their very nature so
20

individual. Plaintiffs place themselves in an awkward legal posture by arguing that the conditions and treatment at Tamms offend the constitutional rights of only the seriously mentally ill, not all inmates. Despite plaintiffs' focus on common facts and issues, there is no keeping the defendants from focusing on individual concems with plaintitfs' "eggshell" theory. If a jury were to tind against one of the two representative plaintiffs, even if there were special interrogatories regarding the class, the inconsistent verdicts are likely to doom the class claims, to the prejudice of the unnamed class members.
RECOMMENDA TION For the aforestated reasons, it is the RECOMMENDATION of this Court that plaintiffs' motion for class certification (Doc. 38) be DENIED, and that the named plaintiffs, Rasho, Fields, Nelson and Boyd, proceed with their joined individual claims. Submitted: November 6, 2001

~C1~

. ( j ) ~

CLIFF D J. PROU;?

U. S. MAGISTRATE JUDGE

21

PURSUANT to Title 28 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the United States District Court for the Southern District of Illinois, any party may serve and file written OBJECTIONS to this Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law within ten days of service.

Please note: You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is appropriate to file OBJECTIONS, if any, to the Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law of the U. S. Magistrate Judge.

Failure to file such OBJECTIONS shall result in a waiver

of the right to appeal all issues, both factual and legal, which are

addressed in the the Report and Recommendation/Proposed

Findings of Fact and Conclusions of Law. Video Views, Inc. v

Studio 21J Ltd. and Joseph Sclafani, 797 F.2d 538 (7th eir.

1986).

You should mail your OB.ffiCTIONS to the Clerk, U.S.

District Court at the address indicated below:

o 301 West Main St.

~750 Missouri Ave.

Benton IL 62812

P.O. Box 249

-
2"·'"5"" 9/29/93

East St. Louis, IL 62202

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

FILED

ASHOOR RASHO, et al.,

MAR 2 7 2002 ~ 1../

Plaintiffs,

~·gi~~T~CJ,:~~6Is EAST ST LOUIS OFFICE

vs.

DONALD SNYDER, et al.,

Defendants.

No. OO-CV-0528-DRH

MEMORANDUM AND ORDER

Herndon, District Judge:

I. Introduction

Before the Court today is the Plaintiffs' motion for class certification.

(Doc. 29). On November 6, 2001, Magistrate Judge Clifford J. Proud submitted to

the Court a Report and Recommendation to deny that motion (Doc. 64), to which the

Plaintiffs filed timely written objections. (Doc. 72). On February 15, 2002, the Court

entered an order neither adopting nor rejecting the Report. but directing the

Defendants to submit further information, verified and in camera, on the issue of

numerosity. (Doc. 75). The Defendants have complied with that order. (Doc. 82).

After careful review of the submitted materials, and de novo review of the record, the

Court ADOPTS the Report (Doc. 64) and DENIES the Plaintiffs' motion for class

certification (Doc. 29), as explained in detail below.

II. Analysis

The Court reviewed those parts of the Report to which the Plaintiffs filed

timely, written objections de novo. FEDERAL RULE OF CIVIL PROCEDURE 72(b); SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1 (b); Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The [Court) may also receive further evidence or recommit the matter to the magistrate with instructions." 28 U.S.C. § 636(b)(I).
One of the issues addressed in the Report is whether the proposed class is suffiCiently numerous to justify treating this case as a class action. The Report evaluated the numerosity issue after adopting a class definition proposed by the Plaintiffs, the "records definition." (Doc. 64, p. 7; Doc. 45; Doc. 41, Exhibit B attachment: LD.O.C. Admin. 05.12.110). As stated in the Report, the Plaintiffs acknowledged that using the "records definition" they propose carries the obvious benefit that "class members could be identified based on undisputed factors." (Doc. 45, p. 11). The Report carefully analyzed the parties' arguments on numerOSity in light of this definition, and concluded that the Plaintiffs failed to carry their burden of showing that "the [proposed) class is so numerous that joinder of all parties is impracticable." FED. R. CIV. P. 23(a)(I); (Doc. 64, p. 9).
On February 15, 2002, the Court directed the Defendants to submit further information. (Doc. 75). The Court ordered the Defendants to review their records and to submit in camera a verified statement of "how many [Tamms) inmates meet the 'records definition' criteria of 'serious mental health concerns
2

The Defendants submitted the information in an appropriate manner. (Doc. 82). The Court has reviewed it. Defendants' submission reveals that only 15 inmates at Tamms meet the "records definition" proposed by the Plaintiffs.
FEDERAL RULE OF CIVIL PROCEDURE 23 provides, in pertinent part, that "one or more members of a class may sue or be sued as representative parties on behalf of all only if (I) the class is so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(I). In the Court's judgment. a group of 15 potential plaintiffs is not "so numerous that joinder ofall members is impracticable." That is particularly true in this case. where the potential plaintiffs are incarcerated together, such that geographical dispersion of the parties is not a factor weighing in favor of class certification. Cf" Gaspar v. Linvatec, 167 F.R.D. 51, 57 (N.D. III. 1996) (class of 18 members meets numerosity requirement where proposed class members were widely dispersed among several states; case cited by Plaintiffs).
The Court also notes that Plaintiffs argued in their Objections that "numerosity is presumed at the level of40 class members." a position "acknowledged by the commentators and the courts alike." (Doc. 72. p. 16). The Court does not suggest that the converse is also true; the Court recognizes that when numerosity is the issue. there are no "absolute limitations." General Tel. Co. of the Northwest, Inc. v. Equal Employment Opportunity Comm'n, 446 U.S. 318, 330 (1980). However. taking into account the particular facts of this case in light of the record as a whole. the Court does not believe that the Plaintiffs have met their burden of
4

which would suggest placement at the Tamms Corrections Center would be inappropriate' as set forth on page 11 of Plaintiffs Reply in support of their motion for class certification." (Doc. 75). The Court sought this information so it could decide the issue of numerosity based on facts in the Defendants' possession, while taking into consideration the serious confidentiality issues inherent in any disclosure of medical information. (Docs. 75, SO).
In deciding to proceed in this manner, the Court chose not to credit the statistical analysis offered by the Plaintiffs as to the potential size of the class. That analysis was based at least in part on statistical information pertinent to published research applicable to "nationwide estimates of seriously mentally ill prisoners," and thus not the population of Tamms. (Doc. 72, p. 13; Doc. 45, Ex. 1, ~IS)l. This distinction is important. Prisoners housed at Tamms are selected from the general population of Illinois inmates due to particular behavioral criteria. Complaint, ~~2S30 (Doc. 1). Thus, what is typical of the general prisoner population may not apply to those housed at Tamms. For this reason, the Court determined that Plaintiffs' statistical method is not likely to produce the most accurate description of the size of the potential class. In an attempt to discover the actual number, the Court demanded a verified submission that would reveal how many members of the Tamms population meet the "records definition" criteria proposed by the Plaintiffs.
IPlaintiffs' expert, Kathryn A. Burns, M.D., based her statistical estimate on her evaluation of the four named Plaintiffs, staffing levels at Tamms, and the "nationwide estimates." (Doc. 45, Ex. 1, ~ IS).
3

demonstrating that the size of the proposed class is "so numerous that joinder of all

members is impracticable." FED. R. CIV. P. 23(a)(1). The Court agrees with the

findings and conclusions of Mag. Judge Proud with respect to the issue of

numerosity, and ADOPTS the Report. (Doc. 64}.

Plaintiffs also objected to the Report's findings and conclusions with

respect to the issue of typicality. After careful de novo review, the Court has serious

reservations as to whether the Plaintiffs met their burden on typicality. However,

since the Court's resolution of the numerosity issue is suffiCient to deny their motion,

there is no need to decide typicality at this time.2

III. Conclusion

After careful de novo review of the record as a whole, including the

Defendants' in camera verified submission, the Court ADOPTS Magistrate Judge

Proud's Report. (Doc. 64). The Court therefore DENIES the Plaintiffs' motion for

class certification. (Doc. 29).

IT IS SO ORDERED.

'21 JV\ Signed this f'1....day of

ay~

,2002.

~~
DAVID R. HERNDON United States District Judge

2The Court also sees no need to resolve the issue Plaintiffs raised as to the adequacy of Faygie Fields as a class representative, since it has no bearing on the outcome of this dispute.
5

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

FAYGIE FIELDS, and BRIAN NELSON,
Plaintiffs, vs. DONALD SNYDER, JR., et al.,
Defendants.

)

)

)

)

)

)

Civil No. 00-528-DRH

)

)

)

)

REPORT AND RECOMMENDATION

PROUD, Magistrate Judge:

Defendants Snyder, Elyea, Hopkins, DeTella, Welborn, Rhodes and the Illinois Department of Corrections are before the Court seeking summary judgment pursuant to Federal Rule of Civil

Procedure 56(b). (Docs. 151, 152 and 157). Plaintiffs Fields and Nelson have filed a response,

including their own statement of facts. (Doc. 167). Defendants in turn have filed a reply. (Doc.

170). Pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), this Report and Recommendation is

respectfully submitted to the District Court. The Remaining Claims
On July 6, 2000, Ashoor Rasho, Faygie Fields, Brian Nelson and Robert Boyd, Illinois Department of Corrections inmates housed at Tamms Correctional Center, who are allegedly

mentally ill, filed the above-captioned action. (Doc. 1). At this juncture, only plaintiffs Fields and

Nelson remain. Furthermore, class action status has been denied. (Doc. 85). Of the original seven

claims, only five claims remain against the aforementioned seven remaining defendants1:

Count I:

The individual defendants were/are deliberately indifferent to

1Dr. Marvin Powers and Dr. Rakesh Chandra have been dismissed. (Doc. 118).

plaintiffs’ serious mental health needs in violation of the Eighth and Fourteenth Amendments.

Count II:

Unconstitutional conditions of confinement for seriously mentally ill inmates imposed by the individual defendants constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

Count V:

The Department of Corrections discriminated against the plaintiffs2 on account of their serious mental illness in
violation of the Rehabilitation Act, 29 U.S.C. § 794.

The plaintiffs seek declaratory relief (Count VI), as well as injunctive relief, and

compensatory3 and punitive damages (Count VII). (Doc. 1).

Arguments for Summary Judgment
Defendants argue:
1. Defendants are not deliberately indifferent to the plaintiffs’ conditions of confinement or mental health needs, relative to Counts I and II.

2. The Illinois Department of Corrections cannot violate the Rehabilitation Act, as alleged in Count V, as it has no knowledge that the plaintiffs are suffering from serious mental illnesses.

3. Plaintiffs are not “otherwise qualified” within the meaning of the Rehabilitation Act.

4.

There is no on-going violation which would justify declaratory

and/or injunctive relief.

(Docs. 151 and 152).

2Plaintiff Fields is the only plaintiff prosecuting this claim. (Doc. 167, p. 46 fn 10).
3Plaintiffs appear to disavow any claim for compensatory damages for past failures. Plaintiffs state: “The plaintiffs do not pray for damages for the defendants’ past failures to remove them from C-Max conditions of confinement. Rather, the plaintiffs allege an ongoing failure on the defendants’ part to address the continuing deterioration of their mental health status by continuing to confine them in the harsh, isolating conditions of C-Max.” (Doc. 167, p. 36 (emphasis in the original)). However, this Court considers this an unintended drafting error.
2

Federal Rule of Civil Procedure 56 Summary judgment is appropriate under Federal Rule of Civil Procedure 56 where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). The evidence is construed in the light most favorable to the nonmoving party and all justifiable inferences are drawn in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once the moving party has produced evidence to show that he or she is entitled to summary judgment, the non-moving party must affirmatively demonstrate that a genuine issue of material fact remains for trial. Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). In responding to a summary judgment motion, the non-moving party may not simply reiterate the allegations contained in the pleadings, more substantial evidence must be presented at this stage. “The object . . . is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990). Moreover, a genuine issue of material fact is not shown by the mere existence of “some alleged factual dispute between the parties” (Anderson, 477 U.S. at 247), or by “some metaphysical doubt as to the material facts, (Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).” “The court’s function is not to weigh the evidence but merely to determine if ‘there is a genuine issue for trial.’ We must ask whether ‘there are genuine factual issues that can properly be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’” First Bank & Trust v. Firstar Information Services, 276 F.3d 317, 321-322 (7th Cir. 2001) (internal citations to Anderson omitted).
Analysis
3

Deliberate Indifference Plaintiffs assert that they suffer from serious mental illnesses. More specifically, Fields allegedly suffers from schizophrenia, and Nelson allegedly suffers from severe major depressive disorder. (Doc. 167, pp. 21-22 and Exhibits T and U). In Count I plaintiffs allege that the defendants are deliberately indifferent to their serious mental health needs, in terms of treatment. They further allege in Count II that, in light of their mental illnesses, the conditions of confinement imposed by the defendants constitute cruel and unusual punishment. Counts I and II are essentially “two sides of the same coin,” and the plaintiffs’ mental health diagnoses are the linchpin of those claims. Generally, the Eighth Amendment obligates prison officials to “provide humane conditions of confinement; . . . [to] ensure that inmates receive adequate food, clothing, shelter and medical care, and [to] ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Estelle v. Gamble, 429 U.S. 97 (1976). The Eighth Amendment’s protections clearly extend to serious psychiatric and psychological afflictions. Sanders v. Sheahan, 198 F.3d 626, 628 (7th Cir. 1999); Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997). Anything that affects a prisoner’s quality of life in prison, including such things as terms of disciplinary or administrative segregation, the deprivation of exercise, adequate food and shelter, also falls within the ambit of “conditions of confinement.” Witzke v. Femal, 376 F.3d 744, 751 (7th Cir. 1004).
In evaluating Eighth Amendment claims, courts conduct both an objective and a subjective inquiry. The objective prong asks whether the alleged deprivation or condition of confinement is “sufficiently serious” so that “a prison official’s act or omission results in the denial of the minimal civilized measure of life’s necessities.” If the conditions complained of pass this threshold, courts then must determine the prison official’s subjective state of mind; that is, whether “he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”
4

Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004) (internal citations to Farmer v. Brennan are omitted)).
The Eighth Amendment is violated when an official exhibits “deliberate indifference”-when an official “knows of and disregards an excessive risk to inmate health or safety[;] the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. This standard is subjective, and is the equivalent of recklessness in the criminal law sense. Id. Mere negligence will not create liability, nor will the provision of medical treatment other than that preferred by the inmate. Estelle, 429 U.S. at 107; see also Burns v. Head Jailor, 576 F. Supp. 618 (N.D. Ill. 1984).
For Eighth Amendment purposes in the medical care context, the seriousness of a medical/psychiatric/psychological problem is gauged by such factors as the severity of the problem, the potential for harm if care is denied or delayed, and whether harm actually resulted from the lack of medical/psychiatric/psychological attention. See Burns, 576 F.Supp. at 620. This is an objective determination. Davis v. Jones, 936 F.2d 971, 972 (7th Cir. 1991). Liability will not attach where the injury appeared slight, but later turned out to be serious; however, where an injury appeared serious and later turned out to be slight, liability will attach--anything else would be gambling with another’s health or life. Id. The ultimate determination regarding the seriousness of an injury is best left to a healthcare professional, or the seriousness of the injury must be so obvious that even a lay person would easily recognize the necessity for a healthcare professional’s attention. Id.; see also Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996).
Dr. Chandra, the Tamms psychiatrist, diagnosed Fields with malingering and
5

polysubstance dependency and a self-reported history of head injury; and Nelson as malingering and having an antisocial personality disorder. (Doc. 157, Exhibit D, p. 4). Dr. Chandra does not consider them to be “seriously mentally ill.”4 (Doc. 157, Exhibit D, p. 3). Defendants acknowledge that there are questions of fact regarding the “correct” diagnoses and whether plaintiffs have serious mental illnesses. (Doc. 152, p. 13 fn 2). Nevertheless, defendants argue that those defendants who are not mental health professionals relied upon what their experts told them about the plaintiffs’ mental health status, therefore they cannot be said to have been deliberately indifferent. Defendants contend that Dr. Chandra (who is no longer a defendant) had the final say-so regarding the plaintiffs’ diagnoses– not defendant Rhodes, who is a psychologist and who oversees mental health services for inmates at Tamms, and who supervises all mental health staff, except psychiatrists; not defendant Elyea, medical director for the Illinois Department of Corrections; and not defendant Hopkins, chief of mental health services for the Illinois Department of Corrections, who allegedly has “minimal involvement in mental health decisions, by reviewing the mental health files of the plaintiffs.” (See Doc. 152, pp. 17-19, and Exhibits C and D).
Plaintiffs essentially attack the diagnoses offered by the defendants, the definition of a serious mental illness utilized by the Department of Corrections, the policies relating to housing and caring for the mentally ill at Tamms, and plaintiffs’ claim that their experts’ opinions are superior to those offered by the defendants and their experts. (See Doc. 167). Plaintiffs contend that the many questions of fact regarding all of those issues preclude summary judgment. Defendants counter that plaintiffs merely present conclusions, not supported by competent evidence of misdiagnoses. (Doc. 170). Whether plaintiffs’ interdependent arguments and
4Defendants also offer evidence that other mental health experts confirmed these or similar diagnoses.
6

evidence fall like a house of cards remains to be seen, that will depend on how various questions of fact are determined.
Clearly, there are many questions of fact regarding the parties’ experts and the plaintiffs’ mental health status– all of which are beyond the Court’s purview at this juncture. Nevertheless, this Court agrees with the defendants to a certain extent; plaintiffs have failed to present any evidence that it was unreasonable for those defendants with no expertise regarding mental health to rely upon the opinions of those with expertise who concluded the plaintiffs were not seriously mentally ill. A serious medical condition is one ‘that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.1997). When experts cannot agree on a diagnosis, lay people cannot be expected to know which opinion to rely on.
Dr. Chandra’s and Dr. Rhodes’ affidavits indicate that Dr. Chandra bore responsibility for diagnosing plaintiffs. Still, the record is murky regarding the role and authority of defendants Elyea, Hopkins and Rhodes, all of whom appear to have sufficient professional expertise to gauge whether plaintiffs were mentally ill and/or whether Dr. Chandra’s diagnoses were professionally reasonable. Defendants do no fully address each of those defendant’s involvement and the chain of command. Therefore, in this Court’s opinion, defendants Elyea, Hopkins and Rhodes cannot be granted summary judgment relative to Counts I and II.
Non-professionals’ reliance on experts’ opinions in these sorts of situations is not an absolute bar to liability. See Sanville v. McCaughtry, 266 F.3d 724, 739 (7th Cir. 2001); and Estelle v. Gamble, 429 U.S. at 107-108. However, there is absolutely no suggestion that defendant Snyder, as director of the Illinois Department of Correction, DeTella, as assistant director of the Illinois Department of Corrections, and Welborn, as warden of Tamms, had any
7

expertise regarding medicine or mental health. The evidence indicates that all contested decisions regarding treatment and conditions of confinement were premised upon the prison’s experts’ opinions. This Court cannot fathom how the defendants’ merely knowing (because of this litigation) that the plaintiffs’ experts contest those diagnoses amounts to deliberate indifference. Therefore, this Court recommends that defendants Snyder, DeTella and Welborn be dismissed from Counts I and II, as there is no evidence from which deliberate indifference can be inferred. It is also this Court’s recommendation that summary judgment not be granted relative to defendants Elyea, Hopkins and Rhodes on Counts I and II.
The Rehab Act Claim Count V alleges that the IDOC violated Section 504 of the Rehab Act, 29 U.S.C. § 794. To state a prima facie case, plaintiff Fields must allege: (1) that they are “handicapped individuals” under the Act; (2) that they are “otherwise qualified” for the benefit(s) sought; (3) that they were discriminated against solely by reason their handicap(s); and (4) that the program or activity in question receives federal financial assistance. Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 119 (7th Cir. 1997). Defendants argue that Fields is not “otherwise qualified” for the benefit(s) sought. Defendants generally refer to plaintiff’s behavioral/disciplinary problems, which are consistently used as the basis for precluding Fields from a host of prison perks and programs. (See Doc. 152, pp. 14-15). Plaintiff Fields views his behavioral/disciplinary problems as manifestations of his serious mental illness. From plaintiffs’ perspective, defendants’ policies, procedures and decisions regarding diagnosis, treatment and placement of mentally ill inmates rest on a shaky house of cards. “Disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities.” 29 U.S.C. § 705. The Rehab Act regulations provide a representative list, defining the term to include “functions such as caring for one’s self,
8

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 45 C.F.R. § 84.3(j)(2)(ii). Conley v. Gibson, 355 U.S. 41, 46 (1957).
With regard to the assertion that plaintiffs are not “otherwise qualified”, their Rehab Act claim is premised upon the following: (1) their being unjustifiably isolated by being sent to Tamms; (2) failure to accommodate their mental conditions by adjudicating their disciplinary charges without reference to their mental health records and by not assisting them in navigating the grievance process; (3) denying them access to programs, activities and services such as: contact with other prisoners, access to jobs, rehabilitation and educational programs, group therapy, outdoor exercise, communal religious programs, an adequate law library, art supplies and personal property, telephone privileges, and contact visits; (4) segregating some of them on an elevated security wing where it is chaotic, noisy and isolated, and where less mental health treatment is offered than elsewhere in Tamms.
“‘Otherwise qualified’ means that were [they] not handicapped, [plaintiffs] would have qualified for the program or treatment [they were] denied because of [their] handicap. ‘An otherwise qualified person is one who is able to meet all of the program’s requirements in spite of [their] handicap.’” Grzan, 104 F.3d at 120 (quoting Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979)). Again, the linchpin of the claim is whether plaintiff Fields is malingering, as defendants ans their experts assert, or seriously mentally ill, as plaintiffs and their experts assert. Questions of fact remain regarding the “correct” diagnosis, therefore summary judgment cannot be granted. Consequently, this Court recommends that the motion for summary judgment be denied relative to the Rehab Act claim, Count V.
Injunctive Relief Defendants consider plaintiffs’ claim for injunctive relief, Count VII, to be improper, in that there is no on-going violation.
9

The scope of any injunction that could issue would be limited in accordance with 18 U.S.C. § 3626 and Ex parte Young, 209 U.S. 123, 155-156 (1908). Ex Parte Young provides an exception to Eleventh Amendment immunity, permitting suit against a state official to enjoin prospective action that would violate federal law, only when the state official is sued in his or her official capacity. Ameritech Corp. v. McCann, 297 F.3d 582, 585-586 (7th Cir. 2002).
In Verizon Maryland, Inc. v. Public Service Comm. of Maryland, [535 U.S. 635 (2002)] the Court stated:
In determining whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Ameritech, 297 F.3d at 587 (internal quotations and cites omitted; numerical citation to Verizon Maryland inserted). Although plaintiffs’ complaint describes many incidents in the past, plaintiff clearly alleges ongoing violations. (See Doc. 1, pp. 6-30 and 34; see also Doc. 167, p. 36). Only one of the defendants, Dr. Rhodes, remains in the employ of the Department of Corrections. Pursuant to Federal Rule of Civil Procedure 25(d), plaintiffs correctly assert that the current officials should be automatically substituted as follows: Roger E. Walker for director Donald Snyder; Richard Bard for assistant director George DeTella; Dr. Amy Ray for chief of medical service Dr. Dennis Hopkins; and Shelton Frey for warden George Welborn. (Doc. 160, p. 2). The formalities of substitution need not be done at this juncture, but will certainly be clarified before trial. See Advisory Committee Notes in re Amendments to Fed.R.Civ.P.(d) (1). Insofar as the defendants are sued in their official capacities, the names in the complaint have virtually no effect on issues presently under consideration.
Recommendation
10

For the aforestated reasons, it is the RECOMMENDATION of this Court that the

defendants’ motion for summary judgment (Doc. 151) be GRANTED IN PART AND

DENIED IN PART. More specifically, this Court recommends: (1) defendants Donald N.

Snyder, Jr., George E. DeTella and George Welborn be granted summary judgment relative to

Counts I and II, as there is no evidence of deliberate indifference; (2) all other defendants should

be denied summary judgment. If the District Court were to adopt this Court’s recommendation,

defendants Elyea, Hopkins, Rhodes and the Illinois Department of Corrections would remain as

defendants, and Counts I, II and V would remain for trial.

DATED: January 24 , 2005

s/ Clifford J. Proud CLIFFORD J. PROUD U. S. MAGISTRATE JUDGE

11

PURSUANT to Title 28 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the United States District Court for the Southern District of Illinois, any party may serve and file written OBJECTIONS to this Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law within ten days of service.

Please note: You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is appropriate to file OBJECTIONS, if any, to the Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/ Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge.

Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v Studio 21,
Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).

You should e-file/mail your OBJECTIONS to the Clerk,

U.S. District Court at the address indicated below:

301 West Main St.

/ 750 Missouri Ave.

Benton IL 62812

P.O. Box 249

East St. Louis, IL 62202

Revised 9/29/99

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

FAYGIE FIELDS and BRIAN NELSON,

Plaintiffs,

v.

DONALD N. SNYDER , JR., Director Illinois Department of Corrections, WILLARD O. ELYEA, M.D., Medical Director, Illinois Department of Corrections, DR. DENNIS HOPKINS, Chief of Mental Health Services, Illinois Department of Corrections, GEORGE E. DETELLA, Associate Director, Illinois Department of Corrections, GEORGE WELBORN, Warden, Tamms Correctional Center, KELLY RHODES, Ph.D., Supervising Clinical Psychologist, Tamms Correctional Center, and ILLINOIS DEPARTMENT OF CORRECTIONS, a public entity,

Defendants.

No. 00-CV-0528-DRH

MEMORANDUM AND ORDER

HERNDON, District Judge:

I. Introduction

On July 6, 2000, Plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson,

and Robert Boyd, current and former seriously mentally ill prisoners at the closed

maximum security facility at Tamms Correctional Center (“Tamms”), filed a putative

class action against Donald N. Snyder, Jr., Director of the Illinois Department of

Corrections (the “Department”), Willard O. Elyea, M.D., Medical Director of the

Department, Dr. Dennis Hopkins, Chief of Mental Health Services of the Department,

George E. DeTella, Associate Director of the Department, George Welborn, Warden

Page 1 of 8

of Tamms, Marvin Powers, M.D., Medical Director of Tamms, Kelly Rhodes, Ph.D., Supervising Clinical Psychologist of Tamms, Rakesh Chandra, M.D., Psychiatrist at Tamms, and the Department, a public entity. (Doc. 1). At this juncture of the case, only Plaintiffs Fields and Nelson and Defendants Snyder, Elyea, Hopkins, DeTella, Welborn, Rhodes, and the Department remain. Class action status has been denied.
Plaintiffs remaining claims allege Defendants were deliberately indifferent to Plaintiffs’ serious mental health needs in violation of the Eighth and Fourteenth Amendments (Count I); Defendants imposed unconstitutional conditions of confinement for seriously mentally ill inmates in violation of Plaintiffs’ right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments (Count II); and Defendants discriminated against Plaintiff Fields on account of his serious mental illness in violation of the Rehabilitation Act, 29 U.S.C. § 794 (Count V). Only declaratory and injunctive relief remain at issue (Counts VI and VII) as Plaintiffs no longer seek money damages. (See Doc. 183, Pls.’ Response to Defs.’ Objections to the Report and Recommendation of Magistrate Judge Proud at pp. 1-2).
On January 24, 2005, Magistrate Judge Clifford J. Proud submitted a Report and Recommendation (“Report”) proposing that this Court grant in part and deny in part Defendants’ motion for summary judgment. (Doc. 175). Specifically, the Magistrate recommended that the Court grant summary judgment to Snyder, DeTella, and Welborn with respect to Counts I and II and deny summary judgment
Page 2 of 8

to the Elyea, Hopkins, Rhodes, and the Department. The Report was sent to the parties with a notice informing them of their right to appeal by way of filing “objections” within ten days of service of the Report. On February 15, 2005, Defendants filed objections to the Report. (Docs. 178 & 179). Thereafter, Plaintiffs filed a response to Defendants’ objections. (Docs. 183).
Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); S.D. ILL. LOCAL R. 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may “accept, reject or modify the recommended decision.” Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.
II. Summary Judgment Standard Summary judgment is proper where the pleadings and affidavits, if any, “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Wyatt v. UNUM Life Insurance Company of America, 223 F.3d 543, 545 (7th Cir. 2000); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of factual issues and entitlement to judgment as a matter
Page 3 of 8

of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court

must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333,

337-38 (7th Cir. 1999).

In response to a motion for summary judgment, the non-movant may not simply rest upon the allegations in his pleadings. Smith v. Sheahan, 189 F.3d

529, 532 (7th Cir. 1999). Rather, the non-moving party must show through

specific evidence that an issue of fact remains on matters for which he bears the burden of proof at trial. Smith v. Severn, 129 F.3d 419, 425 (7th Cir. 1997); Celotex, 477 U.S. at 324. In reviewing a summary judgment motion, the Court

does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. EEOC v. Sears, Robuck & Co., 233 F.3d 432,

436 (7th Cir. 2000).

III. Analysis1

A. Eighth Amendment Claims of Deliberate Indifference2

1 LOCAL RULE 73.1 provides that written objections shall “specifically identify the portions of the proposed findings, recommendations, or reports to which objection is made and the basis for such objections.” S.D. ILL. LOCAL R. 73.1(b). Thus, the Court will review the Magistrate’s Report only insofar as Defendants have made specific objections to it in conformity with the Court’s Local Rules.
2The Magistrate Judge analyzed Counts I and II together finding that the claim based on deliberate indifference to Plaintiffs’ serious medical needs (Count I) and the claim for unconstitutional conditions of confinement (Count II) are “essentially ‘two sides of the same coin.’” (Doc. 175 at p. 4). Neither party has objected to the Magistrate’s decision to combine the analysis of Counts I and II. (See Doc. 179, Defs.’ Mem. of Law in Support of Objections To the Report and Recommendation of Magistrate Judge Proud at pp. 4-5; Doc. 183, Pls.’ Response to Defs.’ Objections To the Report and Recommendation of Magistrate Judge Proud at p. 4 n.2).
Page 4 of 8

Defendants object to the denial of summary judgment arguing that while an issue of fact may exist as to whether or not Plaintiffs suffer from a serious mental illness, no evidence supports a finding that Defendants were deliberately indifferent. Defendants contend that the evidence reflects that Plaintiffs have been seen by mental health staff on hundreds of occasions, have been tested extensively, and have received therapy and other treatment. Defendants ask the Court to find as a matter of law that no evidence exists from which a reasonable trier of fact could find either that Defendants actually drew the inference that Plaintiffs were suffering from a serious mental illness or that Defendants consciously and culpably disregarded the risk that Plaintiffs were suffering from a serious mental illness.
The Court declines to accept Defendants’ invitation. Evidence that Plaintiffs have been seen by mental health staff, have been tested extensively, and have received therapy and other treatment does not definitively resolve the question of deliberate indifference for summary judgment purposes. See Sherrod v. Lingle, 223 F.3d 605, 611-12 (7th Cir. 2000)(“The question mandated by Farmer is whether the official knew of and disregarded an excessive risk to the inmate’s health, not whether the inmate was ignored.”); see also Sanville v. McCaughtry, 266 F.3d 724, 735 (“[D]eliberate indifference may be inferred . . . when the medical professional’s decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that
Thus, this Court will treat the claims together as well.
Page 5 of 8

the person responsible did not base the decision on such a judgment.”)(internal quotations and citations omitted). Here, Plaintiffs’ experts opine that Defendants appear to have intentionally misinterpreted (or refused to acknowledge) the signs and symptoms of Plaintiffs’ serious mental illnesses and to have indefensibly labeled them as malingerers. Plaintiffs contend that Defendants’ refusal to diagnose Plaintiffs as seriously mentally ill keeps Plaintiffs from receiving appropriate treatment and/or removal from closed maximum security facility at Tamms, an environment that is universally deemed inappropriate for the seriously mentally ill. Defendants vehemently deny this claim and have produced evidence to show, among other things, they did not have knowledge of Plaintiffs’ serious mental health needs and did not intentionally disregard Plaintiffs’ mental health problems. Based on the conflicting evidence before it, the Court finds this is simply not the case for summary judgment.
B. Rehabilitation Act Claim Defendants argue that the Magistrate erred in finding that summary judgment was inappropriate because the Magistrate failed to address Defendants’ argument that Plaintiff Fields was not otherwise qualified for the programs he seeks because of his behavior and that Plaintiff Fields was denied the benefits of the programs solely based on his handicap. The Rehabilitation Act protects a “qualified individual with a disability” from discrimination solely because of his disability in any program receiving federal
Page 6 of 8

financial assistance. 29 U.S.C. § 794(a). To make out a prima facie case under the Act, the plaintiff must show: that he “suffers from a disability as defined under the Act; that he was otherwise qualified for the job; that he was involved in programs receiving federal financial assistance; and that he was excluded from participation, denied benefits, or otherwise discriminated against solely because of his disability.” Branham v. Snow, 392 F.3d 896, 902 (7th Cir. 2004) (citing Silk v. City of Chicago, 194 F.3d 788, 798 n.6 (7th Cir.1999)). “‘Otherwise qualified’ means that were [he] not handicap, [Fields] would have qualified for the program or treatment [he] was denied because of [his] handicap.” Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 120 (7th Cir. 1997).
Defendants assert Plaintiff Fields was not otherwise qualified because restrictions at Tamms are based on behavior, not on handicaps. But Plaintiffs’ experts contend that Fields’ inappropriate behavior is a manifestation of his handicap, therefore, assuming we believe Plaintiffs’ experts, absent the mental illness, Fields may be otherwise qualified for the programs at Tamms. Similarly, Defendants blanket assertion that “Plaintiffs’ behavior and records were the deciding factor in determining the place and nature of their confinement” does not carry Defendants to victory on summary judgment given the questions of fact surrounding Fields’ disability and whether Fields’ behavior was tied to his disability. (Doc. 152, Defs.’ Mem. of Law in Support of Mot. For Summary Judgment at p. 15). Put simply, the Court agrees with the Magistrate that there is a genuine dispute of
Page 7 of 8

material fact precluding resolution of the Rehabilitation Act claim on summary judgment.
IV. Conclusion In sum, the Court REJECTS Defendants’ objections and ADOPTS Magistrate Judge Proud’s January 24, 2005 Report. (Doc. 175). Accordingly, the Court GRANTS in part and DENIES in part Defendants’ summary judgment motion. (Doc. 151). Specifically, the Court GRANTS Defendants’ summary judgment motion as to Defendants Snyder, DeTella, and Welborn with respect to Counts I and II and DENIES Defendants’ motion for summary judgment as to Elyea, Hopkins, Rhodes, and the Department. (Doc. 151). The Magistrate Judge is DIRECTED to reset the final pretrial conference as soon as practicable. IT IS SO ORDERED. Signed this 24th day of March, 2005.
/s/ David RHerndon United States District Judge
Page 8 of 8

 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS

RASHO,
vs. SYNDER, et al.,

Plaintiff(s), Defendant(s).

)

)

)

)

)

No. 00-CV-528 DRH

)

)

)

)

ORDER OF DISMISSAL

The Court having been advised by the counsel for the parties that the above action has been settled;
IT IS ORDERED that this action is hereby dismissed without costs and with the right, upon good cause shown within sixty (60) days, to reopen the action if settlement is not consummated.
IT IS SO ORDERED. DATED: This 25th day of May , 2005.
/s/ David RHerndon UNITED STATES DISTRICT JUDGE

 </s> FILED

THE UNITED STATES DISTRICT COURT

OCT - 1 2002~

FOR THE SOUTHERN DISTRICT OF ILLINOIS CLERK, U.S. DISTRICT C'oU'RT
SOUTHERN DISTRICT OF ILLINOIS EAST ST LOUIS OFFICE

ASHOOR RASHO, et. al Plaintiffs,
v.
DONALD SNYDER, et. al., Defendants.

)

)

)

)

)

No. 00 528 DRH

)

)

Judge Herndon

)

)

ORDER OF DISMISSAL Upon the written Stipulation of the parties filed herein, it is hereby ordered that (1) all claims of Robert Boyd against any of the defendants are dismissed with prejudice; and (2) all claims of the remaining plaintiffs, Ashoor Rasho, Faygie Fields, Brian Nelson and Robert Boyd, brought against defendants Powers and Chandra are dismissed with prej udice, in bar of action, costs paid, cause of action satisfied.

ENTERED: tr/t/1.t,fl-

Judge of the U.S. District Court Southern District of Illinois

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

ASHOOR RASHO, et al.,

Plaintiffs,

v. DONALD SNYDER, et al.,

No. 00-CV-528-DRH

Defendants.

ORDER

Before the Court is Plaintiffs’ Status Report Regarding Plaintiff Rasho. (Doc. 149).

Specifically, Plaintiffs’ counsel asks the Court to dismiss Plaintiff Rasho’s claims for lack of

jurisdiction on the ground of mootness because Mr. Rasho no longer resides at Tamms Correctional

Center. Defendants stipulate to the dismissal of Plaintiff Rasho’s remaining claims on the ground

of mootness. Accordingly, pursuant to FEDERAL RULE OF CIVIL PROCEDURE 41(a) the Court

DISMISSES without prejudice Plaintiff Ashoor Rasho’s remaining claims on the ground of

mootness.

IT IS SO ORDERED.

Dated: June 10, 2004

Entered: /s/ David RHerndon UNITED STATES DISTRICT JUDGE

 </s> FILED

IN THE UNITED STATES DISTRICT COURT

MA y 0 9 20fl.i

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ASHOOR RASHO, et aI.,

)

SO.ClJuTE:-.:I-H:-fXFiKR~..~7''u,'Si .O7srsl0(~)I/USR7IICSRTIOCO'FTTr I:-i;~~'"LE'..:'';''>),J'-6i~S

)

Plaintiffs,

)

)

v.

)

Civil No. OO-S28-DRH

)

DONALD SNYDER, et aI.,

)

)

Defendants.

)

ORDER

PROUD, Magistrate Judge:

Before the Court is defendants' motion for entry of a protective order. (Doc. 98).

Defendants note that in Boyd v. Snyder, 99-280-DRH, the predecessor to this case, an agreed

protective order was authorized by the Court which gave the parties free rein to designate

requested discovery materials and information "confidential" and/or to redact matters they

deemed inappropriate for release. (See Boyd, 99-280-DRH, Doc. 172). Defendants request that

an identical protective order be entered in this case.

This Court recognizes that in the prison context there are a variety oflegitimate and well-

recognized security and confidentiality concerns, and that pretrial discovery has traditionally

been conducted in private. Nevertheless, under Fed.R.Civ.P. 26(c) and the dictates of Citizens

First National Bank ofPrinceton v. Cincinnati Insurance Co., 178 F.3d 943 (7th Cir. 1999), and

Union Oil Company of California v. Leavell, ,220 F.3d 562 (7th Cir. 2000), the proposed

protective order cannot be sanctioned by the Court.

The proposed protective order is fatally flawed, in that the parties have made no specific

showing of good cause for the entry of a protective order, as required by Fed.R.Civ.P. 26(c), and

qq

the parties, particularly the defendants, are given free rein to designate material as confidential.

The determination of good cause cannot be left to the parties, that is the Court's prerogative.

As the Court of Appeals for the Seventh Circuit stated in Union Oil Company of

California v. Leavell:

[T]he tradition that litigation is open to the public is of very long standing. People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.

220 F.3d at 567-568 (internal citations omitted).

Insofar as it may be argued that the Court should enforce the protective order as an

agreement between the parties, or merely because a similar protective order was entered prior to

the Citizens First National Bank ofPrinceton and Union Oil Company of California decisions, in

keeping with Local Rule 26.1 (b)(1), it would be incongruous, against public policy, to enforce

the terms of the proposed protective order. The Court must strictly adhere to Rule 26(c).

IT IS THEREFORE ORDERED that the defendants' motion for entry of a protective

order (Doc. 98) is DENIED.

IT IS SO ORDERED. DATED: May 9, 2002

CL.f!.~< ~~
CLIFFORi>~ PROUD::::;:"
U. S. MAGISTRATE JUDGE

 </s> IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ASHOOR RASHO, et aI., Plaintiffs,
v
DONALD SNYDER, et at, Defendants.
PROUD, Magistrate Judge:

) ) ) ) ) ) ) ) )
ORDER

Civil No. OO-S28-DRH
FILED
JAN j 0 2003 r :,:'OCULTEEHARESKRNuSTDSic~.LD'OIr'fU~~ h~I':~J"I!(.C.)oFrFFCIi(OL~EUUNROT'k~.

Before the Court is plaintiffs' motion to compel the defendants to produce certain

requested documents in the absence of a protective order, and for the production of cel1ain other

documents with the benefit of the entry of a protective order- all relative to plaintiffs Third Set

of Requests for Production of Documents and For Permission to Enter Upon Land. (Doc. 122).

Because protective orders are the rare exception, not the rule, even with regard to those

documents plaintiffs agree warrant protection, the Court must discem whether protection is

appropriate under the dictates of Federal Rule of Civil Procedure 26( c), Citizens First National

Bank ofPrinceton v. Cincinnati Insurance Co., 178 F.3d 943 (7lh Cir. 1999), and Union Oil

Company of California v. Leavell, 220 F.3d 562 (7th Cir 2000). The defendants have not sought

a protective order themselves, and they have failed to respond to the subject motion;

nevertheless, because of the obvious security concems related to the Tamms "super-max"

correctional facility, the Court will carefully review the objections noted in defendants' response

to the production requests themselves.

Aereed Scope of Protection The items the p3.1ties agree wanant protection, and the proposed protective order submitted by plaintiffs, appear consistent with the Court's previous order relative to the scope of any protective order. (See Doc. 108). However, the COUlt finds paragraph 8 of the proposed protective order somewhat problematic. (See Doc. 122, Exhibit C). Paragraph 8 pennits counsel to fi'eely designate as confidential testimony obtained during discovery That provision should be modified to reflect that any such designated testimony is only conditionally protected, until such time as the appropriate p3.1ty seeks, and the COUl1 determines that protection is wananted. The COUlt cannot sanction the protection of testimony it has not reviewed. Simply cross-referencing p3.1·agraphs 8 and 11 will clarify the imp0l1 of a conditional designation and the necessity of obtaining Court approval of any such designation and protection. Provided such modification is made, the COUlt approves of the protective order drafted by plaintiffs.
Request No. 6- Videotapes Request No.6 seeks all videotapes recorded at Tamms of the plaintiffs. Defendants agree to make such videotapes available for viewing, but object to actual release of the tapes to plaintiffs, based on "safety and security concerns." (See Doc. 122, Exhibit B, Request #6). Several of the 26 tapes depict cell extraction situations, several in mental health settings, and one is of a plaintiff on the yard. Defendants object to release of extraction tapes because they show the techniques and duties of the tactical team members. Defendants further argue, "If these videotapes were to be produced without protective order prohibiting dissemination to third p3.1ties the defendants fears that inmates would be encouraged to create or provoke situations
2

which would necessitate the creation of videotape footage of themselves." (See Doc. 122, Exhibit B, Request #6).
Defendants' fear that inmates will create or provoke situations which would necessitate the creation of videotape footage of themselves reflects a desire for the inmates not to be seen by the public. The COUli has previously declined to offer protection fi'om bad or unwanted pUblicity and will not do so at this juncture.
Plaintiffs cOlTectly note that a videotape will capture little that the plaintiff being taped could not observe. However, that is not were the danger lies. First-hand observation and recollection do not equal the ability to repeatedly observe and analyze extraction techniques captured on tape. Defendants' fear of the general release of extraction tapes is justified. How to pennit both counsel and the inmate plaintiffs to all view the tapes is the problem
The defendants have failed to argue and establish why plaintiffs' counsel cannot be given copies of the tapes with the understanding that the tapes may not be shown or distributed to others outside the litigation team. Therefore, copies of the 26 tapes at issue must be produced to plaintiffs' counsel, under the same tenns contained in the protective order the COUli approved above. The Court is cetiain that the patiies can work out a scheme for inmate plaintiffs and their counsel to together view tapes in the prison.
Request No. 8- ADs and IDs Relative to Transfers Request No.8 seeks all rules, regulations, policies and procedures conceming transfers to and from Tamms for reasons related directly or indirectly to mental health. Defendants object to producing AD 05.06.130 and ID 05.06.130 because they reveal the procedure and necessary documents to effect the transfer of an inmate, which could lead to the fabrication or modification
3

of transfer fonTIS. This is a reasonable fear and a legitimate security concern Although the defendants have released "similar" directives in connection with this case, that does not necessarily waive protection of the directive at issue. Furthelmore, just because there may be some leaks in the release of sensitive infOlmation does not mean that the flood gates should be raised. Production of AD 05.06.130 and ID 05.06.130 will be pelmitted under the same telms contained in the protective order the COUlt approved above.
Request No. 9- STU Transfers and the Operations Procedure Manual Request No.9 seeks documentation regarding the Special Treatment Unit (STU), including infOlmation regarding transfer to and from the STU. For security reasons, defendants do not want to produce ID 05.505.005 and the STU Operations Procedure Manual. Defendants fear that inmates could gleen how to manipulate transfer to and fi'om the STU and how to circumvent search procedures and the like. Again, these appear to be valid security concerns, which can be ameliorated under the telms of the protective order approved above.
Request No. 11-IDOC Mental Health Treatment at Tamms Request No. 11 seeks all IDOC documentation regarding mental health treatment at Tamms. Defendants have security concerns about releasing IDs 04.03.103; 04.04.102; and 04.04.103; as well as a nursing manual. Defendants asselt that these documents could aid an inmate in manipulating transfer within various health care units, and disclose criteria for release, as well as crisis intervention techniques and restraints. These security concerns are legitimate; therefore, the defendants' production of the aforementioned documents shall be made in accordance with the telms of the protective order approved above.
4

Request No. 15- Conditions of Confinement Request No. 15 seeks all documentation regarding the conditions of confinement at Tamms. The following documents are at issue: D 05.504.001 regarding standards for prope1ty reduction; WB 98-20 regarding newspapers; and WBs 98-25, 98-46, 98-52 and 00-90 setting fOlth visiting room procedures, including searches. Defendants contend that D 05.504.001 would not only enable inmates to learn how to manipulate prope1ty restrictions, but would also create or provoke situations which would necessitate the creation of videotape footage of themselves. Fear of photography in this instance is not grounds for protection. Nevertheless, property restrictions are in integral part of discipline and security at Tamms Therefore, D 05.504 001 must be produced, in accordance with the tenns of the protective order approved above. In objecting to production of WBs 98-20, 98-25, 98-46, 98-52 and 00-90, defendants have failed to specify the grounds for protection, except to explain that "Institutional level policy and procedures directed to staff presents a safety and security concern if possessed by inmates in that they may circumvent the procedure or policy thereby thwarting the implementation or effectiveness of the procedure or policy." (Doc. 122, Exhibit BB, Request # 15). That rationale suggests that vi1tually all documents within the prison system should be subject to protection, which ce1tainly is not contemplated by the nanow scope of protection offered under Federal Ruel of Civil Procedure 26(c). However, because WBs 98-52 and 00-90 relate to search policies, the COU1t is willing to afford those documents protection, out of an over abundance of caution. Therefore, defendants must produce documents WBs 98-20, 98-25, 98-46 without benefit of a protective order. WBs 98-52 and 00-90 shall be produced, subject to the temlS of the protective
5

order approved above.

IT IS THEREFORE ORDERED that plaintiffs' motion to compel the defendants to

produce certain requested documents in the absence of a protective order, and for the production

of cel1ain other documents with the benefit of the entry of a protective order- all relative to

plaintiffs Third Set of Requests for Production of Documents and For Pelmission to Enter Upon

Land- (Doc. 122) is GRANTED IN PART AND DENIED IN PART, as detailed above. The

final protective order should be executed by the parties on or before January 24, 2003, and on or

before February 7, 2003, defendants shall comply with the C0U11's directives regarding

production.

IT IS SO ORDERED.

DATED: January 10,2003

C?<~~~~" CLIFFR J. P R O U. S. MAGISTRATE JUDGE

6

 </s> 44 F.Supp.2d 966 (1999)
Robert BOYD, Ashoor Rasho, Faygie Fields and Brian Nelson, Plaintiffs, v.
Donald SNYDER, Ronald Shansky, Marion Page, George Detella, George Welborn, Steven Hoepker, Charles Hinsley, Marvin Powers, Kelly Rhodes and IDOC, Defendants.
No. 99 C 56.
United States District Court, N.D. Illinois, Eastern Division.
April 13, 1999.
967 *967 James P. Chapman, Fagel & Haber, Chicago, IL, Locke E. Bowman, III, Jean MacLean Snyder, Chicago, IL, Mark Joseph Heyrman, Edwin F. Mandel, Chicago, IL, for plaintiffs.
Diann Karen Marsalek, Richard John Siegel, Chicago, IL, Susan Takata O'Leary, Illinois Department of Corrections, Chicago, IL, for defendants.
968 *968 MEMORANDUM OPINION AND ORDER
GETTLEMAN, District Judge.
Plaintiffs Robert Boyd, Ashoor Rasho, Faygie Fields, and Brian Nelson, inmates at Tamms Correctional Center ("Tamms"), have brought a six-count amended complaint against defendants Illinois Department of Corrections ("IDOC"), IDOC Director Donald Snyder ("Snyder"), Ronald Shansky, M.D. ("Dr.Shansky"), Marion E. Page, M.D. ("Dr.Page"), IDOC Deputy Director George E. DeTella ("DeTella"), Tamms Warden George Welborn ("Welborn"), Tamms Assistant Warden Charles L. Hinsley, Captain Steven Hoepker, Tamms Medical Director Marvin Powers, M.D., and Tamms Supervising Clinical Psychologist Kelly Rhodes, Ph.D. Plaintiffs allege: (1) deliberate indifference to the inmates' mental health needs in violation of the Eighth and Fourteenth Amendments; (2) living conditions for mentally ill inmates that violate the Eighth and Fourteenth Amendments; (3) violation of the state Mental Health Code, which creates a liberty or property interest under the Fourteenth Amendment; (4) violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; and (5) violation of the Rehabilitation Act, 29 U.S.C. § 504. Plaintiffs request class certification and injunctive relief.
Defendants have filed a motion pursuant to 28 U.S.C. § 1404(a) to transfer venue from the Northern District to the Southern District, where Tamms is located, arguing that transfer serves the convenience of the parties and witnesses and the interests of justice.
FACTS
Plaintiffs are seriously mentally ill inmates incarcerated at a "super maximum" security facility. Defendant Dr. Shansky, Medical Director of IDOC, has overall responsibility for providing Tamms inmates with health care, while defendant Dr. Page, Chief Psychiatrist for IDOC, has overall responsibility for the inmates' psychiatric care. Plaintiffs allege that they are subjected to extreme isolation, severely restricted movement, harsh punishments, and other psychologically harmful practices that exacerbate their mental illnesses. According to plaintiffs, the policies and practices at Tamms create a destructive cycle. Inmates respond to the harsh conditions by acting destructively towards themselves, others, and their environment. Defendants punish the inmates for this behavior, increasing their pain and making them more destructive. Some of the responses include violently removing an inmate from his cell, stripping him of all clothing and his cell of all property, and requiring him to live for days, naked and without the barest of essentials. Plaintiffs also allege that defendants forcibly sedate inmates and subject them to frequent full body cavity searches in an attempt to discover concealed weapons. Indignities

such as these inflict severe physical and psychological pain, making comparatively stable inmates unstable and rendering already mentally ill inmates even sicker.
DISCUSSION
I. Standard for Venue Transfer
A transfer is appropriate under § 1404(a) where the moving party demonstrates: (1) venue is proper in both the transferor and transferee court; (2) the transfer is for the convenience of parties and witnesses; and (3) the transfer is in the interest of justice. See Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986). "The weighing of factors for and against transfer necessarily involves a large degree of subtlety and latitude, and therefore, is committed to the sound discretion of the trial judge." Id.
Defendants, as the moving parties, must show that the "transferee forum is clearly more convenient" than the transferor forum. Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir.1989) (citing Coffey, 969 796 F.2d 217, *969 219-20 (7th Cir.1986)). Moreover, defendants must demonstrate that a transfer will promote the efficient administration of justice; they may not simply shift the inconvenience from one party to another. See Black v. Mitsubishi Motors Credit of America, Inc., 1994 WL 424112, at *2 (N.D.Ill. Aug.10, 1994).
II. Venue
In a case where jurisdiction is based on diversity of citizenship, venue is proper in: (1) a judicial district where any defendants resides, if all defendants reside in the same state; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred; or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a).
Venue is proper in the Northern District of Illinois under § 1391(a)(1) because two of the defendants reside in this district and all defendants reside in Illinois. Venue is also proper in the Southern District of Illinois under § 1391(a) (1) because four of the defendants reside there. Accordingly, venue is proper in both the proposed transferor and transferee court, and the court has power to transfer this case.
III. Convenience of the Parties and Witnesses
The court must also consider the relevant private and public interests in evaluating the convenience and fairness of a transfer of venue. The private interests include: the plaintiff's initial choice of forum; the situs of material events; the ease of access to sources of proof; the availability of compulsory process for the attendance of unwilling witnesses and the cost of obtaining the attendance of the witnesses; and the convenience to the parties, specifically their respective residences and their ability to bear the expense of litigating in a particular forum. Georgouses v. NaTec Resources, Inc., 963 F.Supp. 728, 730 (N.D.Ill.1997).
A. Plaintiff's Choice of Forum
The first private interest factor 0907 plaintiff's choice of forum 0907 favors litigating this action in the Northern District of Illinois. Under § 1404(a), "[a] plaintiff's choice of forum is entitled to substantial weight ... particularly when it is also the plaintiff's home forum." Vandeveld v. Christoph, 877 F.Supp. 1160, 1167 (N.D.Ill. 1995). According to the Seventh Circuit, "the domicile of [a] prisoner before he was imprisoned is presumed to remain his domicile while he is in prison." Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991). Plaintiffs allege that the Northern District is their home forum because all four named plaintiffs lived in Cook County before they were incarcerated, and intend to return there after they are released.

A plaintiff's choice of forum is not conclusive, however. "The plaintiff's choice is given less weight ... when the plaintiff sues derivatively or as a class representative, and where the cause of action did not conclusively arise in the chosen forum." Countryman on Behalf of Upstate New York Pension and Retirement Fund v. Stein Roe & Farnham, 681 F.Supp. 479, 482-83 (N.D.Ill.1987). Both of these factors are present in the instant case.
1. Plaintiffs' Home Forum
When "plaintiff alleges a class action, plaintiff's home forum is irrelevant." Georgouses, 963 F.Supp. at 730 (citing cases). The court nonetheless addresses plaintiff's argument that most of the plaintiff class resides in the Northern District. Ordinarily, courts give special weight to the plaintiff's place of residence because it is a presumptively more convenient place for the plaintiff to litigate the action. Although plaintiffs allege that at least 970 sixty-four percent of the inmates at Tamms *970 reside in the Northern District,[1] all potential class members are currently incarcerated at Tamms. Most members of the putative plaintiff class therefore are not actually located anywhere near their domicile. In addition, the percentage of the potential class that resides in each district will fluctuate as prisoners are transferred in and out of Tamms.
2. Situs of Material Events
Even if nearly all of the putative class members reside in Cook County, the court may give the plaintiff's choice of forum less weight if it is not the situs of material events. When "the conduct and events giving rise to the cause of action did not take place in the plaintiff's selected forum, `the plaintiff's preference has minimal value'" even if it is his home forum. Dunn v. Soo Line R. Co., 864 F.Supp. 64, 65 (N.D.Ill.1994) (quoting Robinson v. Town of Madison, 752 F.Supp. 842, 847 (N.D.Ill.1990)); see also Chicago, R.I. & P.R. Co. v. Igoe, 220 F.2d 299, 304 (7th Cir.1955).
The parties heatedly dispute the definition and location of the material events. Defendants argue that because plaintiffs are challenging the conditions of their confinement at Tamms, all events material to the case occurred in the Southern District. Consequently, defendants contend, the court should give plaintiffs' choice of forum no more weight than any other factor. Plaintiffs respond that the case challenges system-wide policies of defendant IDOC, and that therefore the material events occurred wherever these policies were created. Plaintiffs rely on a District of Columbia case in which the court denied a motion to transfer, even though the plaintiff was incarcerated in North Carolina and the material events had occurred at a Missouri prison, because the plaintiff was challenging a Bureau of Prisons policy developed in D.C. and applied nationwide. See Farmer v. Hawk, 1996 WL 525321, at *1-3 (D.D.C. Sept.5, 1996). According to plaintiffs' allegations, Dr. Shansky and Dr. Page are responsible for providing mental health care to inmates of Tamms, and are likewise responsible, along with Snyder (a resident of the Central District) for the alleged "systemic deficiencies" in the provision of such care. Plaintiffs argue that none of the people responsible for creating the challenged policies reside in the Southern District, and that therefore most of the material events occurred in the Northern District.
Defendants contend that Farmer is inapplicable because plaintiffs are challenging policies and practices developed exclusively at and for Tamms, not systemic IDOC policies. Defendants cite in support IDOC Rule 505, 20 Ill.Admin.Code tit. 1, § 505, which sets forth the specific policies and procedures for the Tamms prison (the only "closed maximum security facility" included in the regulation). Defendants also argue that even if the challenged policies could be defined as "department-wide policies," they were not developed in the Northern District, but in the Southern and Central Districts. In support, defendants cite the affidavit of Tamms Warden Welborn, who states in an affidavit that all meetings where Tamms policies were created and developed were held either at Tamms or at IDOC's Springfield office, and that Dr. Page did not attend any of those meetings.
Defendants do not refute plaintiffs' claim that Dr. Shansky was involved in creating the challenged policies. Whether Dr. Shansky participated or not is irrelevant, however, because plaintiffs do not present any evidence to 971 counter defendants' argument that no policy development meetings took place in the Northern District. *971 Moreover, because plaintiffs seek to enjoin further implementation of the allegedly offensive policies, the locus of policy implementation is more relevant than the locus of policy creation.

This conclusion would have even more force should plaintiffs succeed in this case. Enforcement of any injunctive or declaratory relief would focus almost exclusively on Tamms, its personnel and inmates. See, e.g., Law Bulletin Publishing, Co. v. LRP Publications, Inc., 992 F.Supp. 1014, 1021 (N.D.Ill.1998) (transferring a case to Florida because "a Florida court is in a better position to enforce and monitor any injunctive relief awarded."); Habitat Wallpaper & Blinds Inc. v. K.T. Scott Ltd. Partnership, 807 F.Supp. 470, 475 (N.D.Ill. 1992) (transferring a case to Massachusetts because the injunctive relief requested would need to be enforced in Massachusetts). The court finds that the Southern District is the primary situs of material events, and therefore accords plaintiffs' choice of forum little weight.
B. Access to Evidence
The court next considers the ease of access to sources of proof. Defendants argue that the files and records relating to plaintiffs and to the conditions of their incarceration are all at Tamms. See Carillo v. Darden, 992 F.Supp. 1024, 1026 (N.D.Ill.1998) (holding that this factor weighed in favor of transfer because "the records relating to this incident are located at the [prison]"). Plaintiffs counter that proof about their mental health status before they became inmates at Tamms can be found in the Northern District and elsewhere. According to plaintiffs, family members may be called upon to testify to an inmate's psychological condition before entering Tamms. The court agrees with plaintiffs that documents and records are easily transportable. See, e.g., Law Bulletin Publishing, Co., 992 F.Supp. at 1018 ("The court is satisfied ... that either party can easily bring to the district in which the case is litigated those documents that are not there already."); Arena Football League, Inc. v. Roemer, 947 F.Supp. 337, 341 (N.D.Ill.1996) ("Defendants have not demonstrated that they cannot bring the critical documents to this district."). Accordingly, this element does not weigh in favor of transfer.
C. Convenience of Witnesses
Defendants argue that the convenience of witnesses also favors the Southern District. Defendants rely on Welborn's affidavit, in which he states that he anticipates that most of plaintiffs' and defendants' witnesses will be either inmates or staff from Tamms. Plaintiffs admit that Tamms inmates and staff will be witnesses, but aver that because these people are either parties or employees of a party, their convenience is not as important as the convenience of non party-related witnesses. Plaintiffs assert that they plan to call: expert witnesses from Chicago and out-of-state; plaintiffs' family members, many of whom reside in Chicago; policymakers stationed in both Chicago and Springfield (the Central District); and officials or medical personnel from facilities where the named plaintiffs were previously incarcerated, most of which are in the Northern and Central Districts.[2]
The court will address each of plaintiffs' arguments. First, the convenience of expert witnesses is not a factor courts consider in deciding a transfer motion. See Blumenthal v. Management Assistance, Inc., 480 F.Supp. 470, 474 (N.D.Ill.1979); Binz v. Iowa Interstate Railroad, Ltd., 1999 WL 90642, *3 (N.D.Ill. Feb.10, 1999) (holding that plaintiff's "counsel, expert witnesses and the investigator ... are all paid individuals ... whose job it is to be present 972 in court"). Second, defendants argue that any inconvenience *972 to plaintiffs' family members is irrelevant because there is no evidence that they will offer testimony[3] and if they do, their testimony may be irrelevant. The court accepts plaintiffs' representations that family members may be called to testify about a plaintiff's past mental problems and whether and how those problems intensified after the inmate entered Tamms.
Finally, defendants argue that plaintiffs have not presented any evidence that nonparty psychiatrists from other institutions will testify. The court notes that although plaintiffs present evidence that the named plaintiffs have spent more time incarcerated in the Northern District than in the Southern District, there is no way of knowing where the rest of the class was incarcerated prior to Tamms.
Because the witnesses plaintiffs plan to call are located in all three districts (the family members in the Northern, the policymakers in the Northern and Central Districts, and the inmates and officials in the Southern District), this factor does not favor either plaintiffs or defendants.

D. Convenience of Parties
Defendants argue that the Southern District is more convenient for both parties because all of the plaintiffs are currently located there and four of the nine defendants reside there, while only two of the defendants, Dr. Page and Dr. Shansky, reside in the Northern District.[4] Plaintiffs respond that the Northern District is convenient for counsel on both sides, whereas the Southern District is far more convenient for defendants' counsel, because they have offices in Springfield as well as Chicago. Courts take the convenience of counsel into consideration, "but only if transfer would impose unnecessary costs on the parties." Kingsley v. Dixon Old People's Home Fund, Inc., 1996 WL 417548, at *2 (N.D.Ill. July 22, 1996). Plaintiffs argue that courts may consider whether transfer will impose such expenses on plaintiff that he may be forced to terminate the litigation. See Butterick Co. v. Will, 316 F.2d 111, 113 (7th Cir. 1963). Butterick is inapposite, however, because plaintiffs do not assert that the transfer would force them to abandon their suit.
Plaintiffs note that the cost in time and money to travel from Chicago to Tamms is burdensome, particularly on plaintiffs' public interest lawyers. The court is sympathetic to this reality, especially where, as here, plaintiffs' lawyers are employed by a not for profit organization that is performing an important public service. Plaintiffs' argument is premised on the assumption that the case will be heard by one of the two Southern District judges in Benton, Illinois which, like Tamms itself, is not served by a commercial airport. Yet, as defendants point out, the case could well be transferred (by lot) to one of the five judges who sit in East St. Louis, just across the Mississippi River from St. Louis, Missouri, a major transportation hub with frequent air service.
Finally, defendants argue that if the case remains in the Northern District, they will be saddled with the costs of transporting dangerous prisoners across the state unless the court transfers the case. Defendants add that moving the prisoners poses security risks. Plaintiffs counter that transporting the prisoners from the Federal 973 Metropolitan Correctional *973 Center ("MCC")[5] to the federal courthouse in Chicago will be easier than moving them from Tamms to a Southern District courthouse. Defendants reply that Tamms has its own courtroom facilities. The court concludes that unless the case is tried in the courthouse on Tamms' premises (which apparently cannot be used for jury trials), the parties will incur costs transporting plaintiffs from prison to courthouse, and plaintiffs may well have to be held in a state penal facility nearest the courthouse. Because it is unlikely that the case will be tried at Tamms if transferred, the court accords little weight to defendants' argument that failure to transfer will impose added costs and create a security risk.
The court finds that because transfer to the Southern District will impose extra travel time on both parties, and because plaintiffs' attorneys, regardless of the forum, will have to travel to Tamms to depose Tamms personnel and to meet with, depose, and otherwise prepare their clients for discovery and trial, transfer will not impose "unnecessary" costs on plaintiffs or their attorneys. See Kingsley, 1996 WL 417548, at *2 ("It is true, that if the case were heard in [the transferee forum], both parties' attorneys would be burdened with travel.... I am not persuaded that extra travel time would impose any hardship on plaintiff's attorneys."). Accordingly, the private interest factors weigh in favor of transfer.
IV. The Public Interests of Justice
In addition to the private interest factors, the court must also consider the following public interest factors that may warrant transfer: (1) the relation of the communities to the issue of the litigation and the desirability of resolving controversies in their locale; (2) the court's familiarity with applicable law; and (3) the congestion of the respective court dockets and the prospects for earlier trial. See Hughes v. Cargill, Inc., 1994 WL 142994, at *2 (N.D.Ill. Apr.14, 1994).
Defendants argue that residents of the city of Tamms and the surrounding area have a greater stake in the outcome of the instant case than residents of the Northern District. According to defendants, the prison employs 430 people, a sizeable chunk of the community considering that the town of Tamms itself has only 950 residents. Defendants assert that, consequently, the Tamms community has "a vested interest in whether the Tamms

Correctional Center stands or falls." Plaintiffs respond that the citizens of Cook County have more of an interest in the outcome of the case because the named plaintiffs committed the crimes for which they were incarcerated in Cook County and will probably return to the Northern District when released. Plaintiffs, who are all African Americans, also contend that plaintiffs will be more likely to get a jury of their peers in Cook County because the jury pool in the Northern District is twenty percent black, while the pool in the Southern District is just four percent black.
Both parties are incorrect. Defendants' argument is wrong because this suit does not seek the dismemberment of Tamms. Rather, it seeks to compel the administration of the institution to treat its inmates in compliance with the Constitution and the laws 0907 interests shared by all citizens of the state. Plaintiffs are wrong because, even accepting their declarations, only sixty-four to eighty percent of the potential plaintiff class may return to the Northern District. The remainder will be returning to various areas around the state. Moreover, plaintiffs' desire for 974 a more racially diverse jury pool rests on the controversial and rather pernicious notion that jurors *974 favor defendants of their own race and will make decisions based on these sympathies. Just as Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny prohibit the parties from basing their peremptory challenges "on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant," id. at 89, 106 S.Ct. 1712, the court cannot base a transfer decision on the assumption that black jurors will be more sympathetic to black plaintiffs. See generally Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right is it, Anyway?, 92 Colum.L.Rev. 725, 733 (1992) ("Surely a Court that prohibits litigants from relying on a race-based generalization to challenge jurors should not rely on that same generalization itself.").
The first public interest factor is therefore a "wash," at least based on the parties' arguments. Because the court has decided that the Southern District is the situs of the material events, the court concludes that the administration of justice will be served more efficiently if the case is litigated by a court that is "closer to the action." Paul v. Lands' End, Inc., 742 F.Supp. 512, 514 (N.D.Ill.1990).
The second factor of the interests of justice test also does not weigh in favor of either party, because the two courts are presumably equally familiar with the applicable law. The third factor, docket congestion, weighs slightly in plaintiffs' favor. Defendants present statistical evidence that the Northern District has a heavier overall caseload than the Southern District. Plaintiffs counter that the more important statistic is the median time from filing until disposition. Plaintiffs are correct that courts consider median filing-disposition time to be more significant than overall caseload. "[T]o anyone who understands the realities behind the statistics, the most meaningful figures in terms of court congestion are not the raw numbers of pending cases at year-end ... but these": (1) weighted filings per judge in each district; (2) median time from filing until trial; and (3) the percentage of cases in each district that are over three years old. Zalutsky, Pinski & DiGiacomo, Ltd. v. Kleinman, 747 F.Supp. 457, 463-64 (N.D.Ill.1990).
Plaintiffs cite statistics from 1992 to 1997 which suggest that the two districts disposed of cases in nearly the same amount of time, although the Northern District disposed of civil matters a bit more quickly (in an average of five months, as compared to the Southern District's eight months). Plaintiffs also argue that this court disposes of cases more quickly than Judge Gilbert in the Southern District (plaintiffs reach this conclusion by comparing the number of motions pending over six months and the number of cases pending over three years). As noted above, however, this comparison is irrelevant, because the instant case might just as easily end up on the docket of one of the other six judges in the Southern District. Given that plaintiffs have presented evidence that is more relevant to the inquiry, and that plaintiffs' evidence suggests that the Northern District disposes of civil cases marginally more quickly than the Southern District, the third factor weighs slightly in plaintiffs' favor.
CONCLUSION
After weighing all the relevant factors, the court concludes that this case should be transferred to the Southern District. Although a plaintiff's choice of forum is important, the court gives this factor less weight because plaintiffs are seeking class certification and because the court has concluded that the Northern District is not the situs of the material events. Moreover, the witnesses are dispersed across three districts, and all of the plaintiffs, a

number of the defendants, and many relevant records can currently be found in the Southern District. Although the court acknowledges that transfer will inconvenience plaintiffs' counsel, it will not impose "unnecessary" costs 975 on either party. The *975 court therefore concludes that, while the question is close and within the sound discretion of the court, the convenience of parties and witnesses and the interests of justice favor transfer.
Accordingly, the court grants defendants' motion to transfer this case to the Southern District of Illinois.
[1] Defendants' challenge to the original declaration plaintiffs offer in support of this point is generally wellfounded. Plaintiffs have, however, submitted supplementary material based on IDOC's website demonstrating that as many as eighty percent of the inmates may be from Cook County. Defendants do not dispute this number or the paragraphs of plaintiffs' declaration which discuss this statistic.
[2] According to plaintiffs, these officials will testify to the allegedly detrimental impact certain practices at Tamms have had on inmates.
[3] Defendants base this argument on Welborn's statement in his affidavit that the plaintiffs' visiting histories do not suggest that they have had much contact with their families since they were incarcerated. This is a rather disingenuous argument. According to plaintiffs' allegations, Tamms, which is located in a remote part of the state some 370 miles from Chicago, places severe restrictions on visiting that make visitation an extremely inconvenient and unpleasant experience for both visitor and inmate.
[4] The remaining three defendants, IDOC, DeTella, and Dr. Snyder, reside in the Central District.
[5] Because plaintiffs are not federal detainees, they may not be housed at the MCC during trial. The most common practice in prisoner civil rights trials is to house the plaintiff at a nearby state facility, such as Joliet or Stateville Penitentiaries, and transport them to court on a daily basis.
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 </s> Rasho v. Snyder, Not Reported in F.Supp.2d (2003)

2003 WL 716578 United States District Court,
S.D. Illinois.
Ashoor RASHO, et al., Plaintiffs, v.
Donald SNYDER, et al., Defendants.
No. 00–CV–0528–DRH. | Feb. 28, 2003.
Opinion
MEMORANDUM AND ORDER
HERNDON, J.
I. Introduction
*1 Plaintiffs, prisoners at Tamms Correctional Center, filed suit alleging that the conditions of their confinement violate their rights under the Eighth and Fourteenth Amendments to the United States Constitution and two federal statutes, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. Plaintiffs seek to maintain this case on a class basis, with the class consisting of “all prisoners who are now, have been before, or will be hereafter incarcerated at Tamms who have serious mental illnesses, defined as a substantial disorder of thought or mood which significantly impairs the judgment, behavior, and capacity to recognize reality or cope with the ordinary demands of life within the prison environment and is manifested by substantial pain or disability.” (Complaint, ¶ 7). The Court denied the Plaintiffs’ motion for class certification after determining that Plaintiffs failed to meet their burden of showing that the purported class met the numerosity requirement of FEDERAL RULE OF CIVIL PROCEDURE 23(a)(1). Before the Court today is the Plaintiffs’ motion to reconsider the denial of class certification. (Doc. 95). The Court conducted a hearing at Tamms Correctional Center, toured the prison, and spent several hours reviewing in camera the mental health files of all prisoners the Plaintiffs’ counsel recommended it review. For the reasons explained below, the Court DENIES the Plaintiffs’ motion to reconsider. (Doc. 95).

II. Background
Since the Plaintiffs first moved for class certification, there has been some controversy among the parties as to how to define the class most precisely. For the sake of clarity, the Court will provide a brief history of this controversy.
In March, 2001, shortly after the Defendants filed ultimately unsuccessful motions to dismiss the complaint, the Plaintiffs moved to certify the class. In their reply brief in support of that motion, Plaintiffs suggested that the Court adopt what they termed the “records definition” of the proposed class, based on an Illinois Department of Corrections Directive No. 05.12.110, “Placements at a Closed Maximum Security Facility” (“the Directive”) (Plaintiff’s Hearing Exhibit 1). Section G.3 of the Directive provides that a “mental health professional” shall review each inmate’s medical and master record files prior to his placement at Tamms to identify whether he has certain listed mental health symptoms. The Directive then sets forth ten criteria according to which each inmate must be evaluated to determine his fitness for placement at Tamms.
Plaintiffs’ proposed “records definition” modified some of the factors listed in the Directive. (Plaintiff’s Hearing Exhibit 2). Plaintiffs argued that their proposed modifications to the Directive would make the process of determining who would qualify as members of the proposed class an objective inquiry.
On November 6, 2001, Magistrate Judge Proud issued a Report and Recommendation (“Report”) that the motion be denied. (Doc. 64). Part of the Report recommended that the Court deny the motion because Plaintiffs failed to carry their burden of demonstrating that the proposed class would be sufficiently numerous. On January 25, 2002, Plaintiffs filed their objections to the Report. This Court did not initially adopt or reject the Report, but ordered the Defendants to file under seal additional information—the number of Tamms inmates whose records indicate they meet the Plaintiffs’ proposed class definition. (Doc. 75). The Plaintiffs objected to this procedure, arguing that they should be permitted to examine the same records that the Defendants reviewed for the required submission. The Court rejected that proposal out of concern for the confidentiality of the prisoners’ medical records. (Doc. 80).
*2 When the Defendants submitted a sworn, verified statement that the number of potential class members amounted to only fifteen inmates, the Court denied the Plaintiffs’ motion for lack of numerosity. (Doc. 85). Plaintiffs filed this motion to reconsider that decision.
1

Rasho v. Snyder, Not Reported in F.Supp.2d (2003)
(Doc. 95). In support of the motion, they submitted additional factual information suggesting that the number of potential class members was much higher than the fifteen inmates Defendants reported. The information included statements purportedly by Tamms staff members indicating that approximately thirty-five inmates were on the psychiatric and psychological “chronic caseloads.” Plaintiffs argued that all inmates on these “chronic caseloads” should have been listed in Defendants’ in camera disclosure, and concluded that the class must include at least fifty inmates presently at Tamms.
The Court set Plaintiffs’ motion to reconsider for hearing and ordered the Defendants to produce “the complete mental health records for all prisoners incarcerated at Tamms” for the Court’s review. (Doc. 107). The parties then jointly moved to continue the hearing and hold it at the courtroom at Tamms Correctional Center. Per 42 U.S.C. § 1997e(f)(2), the Court granted that motion and set the hearing for October 1, 2002, at Tamms.
At the Tamms hearing, the Court heard oral argument on an issue Plaintiffs raised in their moving papers—whether Defendants fully complied with the Court’s order to disclose the number of inmates who met the criteria. In response, the Defendants presented testimony from Dr. Kelly Rhodes, a licensed clinical psychologist and the Supervising Clinical Psychologist at Tamms since it opened in 1998. (Hearing Transcript at 17) (“Tr.”). Dr. Rhodes testified that she prepared the submission stating that only 15 inmates met the class definition. (Tr. at 17–18, 26). She stated that she understood that the class definition was the Directive (Plaintiff’s Hearing Exhibit 1), without Plaintiffs’ proposed modifications to it (Plaintiffs’ Hearing Exhibit 2). (Tr. at 21, 25, 35).
Dr. Rhodes addressed Plaintiffs’ claim that the approximately 35 inmates on the “chronic caseload” should have been counted as potential class members. Dr. Rhodes stated that her mental health staff sees each inmate at least once a month, and that the “chronic caseload” consists of all inmates seen for a number of reasons on a more frequent basis. (Tr. at 18–19). Thus, the “chronic caseload” includes inmates who do not suffer from a “serious mental illness,” but who might require more sustained attention from the mental health staff for reasons other than a mental illness. (Tr. at 18–19). Some of the reasons why such extra attention could be appropriate include the inmate’s imminent transition to a less secure facility, lack of social support in the community, or participation in an anger management program. (Tr. at 19).
Dr. Rhodes also compared the Directive (Plaintiffs’ Hearing Exhibit 1) to the modified criteria Plaintiffs suggested (Plaintiffs’ Hearing Exhibit 2). Dr. Rhodes explained that the Plaintiffs’ modifications do not provide a more objective basis for evaluating who should be

included in the class of seriously mentally ill inmates. (Tr. at 21, 22). Dr. Rhodes pointed out that Plaintiffs’ proposed modifications would include any inmate placed on “suicide watch status.” (Tr. 21–22) (Plaintiffs’ Hearing Exhibit 2, ¶ c). However, placement on suicide watch status requires only a statement by an inmate that he feels suicidal. (Tr. at 22, 31). No clinical judgment or behavioral issue informs the decision to place an inmate on suicide watch. (Tr. at 22, 31). Dr. Rhodes stated that many inmates seek placement on suicide watch status for reasons that have nothing to do with whether they actually intend to end their lives, but because they want a change of scene, or to speak with the duty warden, or to talk with friends who are also on suicide watch. (Tr. at 22, 37–38). Similarly, Dr. Rhodes pointed out that the Plaintiffs’ proposed modification would include any inmate who had received antipsychotic psychotropic medication. (Tr. at 23). This factor is also a poor objective indicator of whether an inmate has a serious mental illness, because such medications are often prescribed in an attempt to slow the patient’s reaction time to help with anger management and other issues. (Tr. at 23). Thus, drugs of this kind are sometimes prescribed at Tamms to address behavioral issues, not serious mental illnesses. (Tr. at 23).
*3 Dr. Rhodes stated that the list of fifteen inmates she prepared contains all the inmates who meet the criteria set forth in the Directive, Plaintiff’s Hearing Exhibit 1. (Tr. at 18). However, she pointed out that these fifteen do not all have serious mental illnesses according to recognized mental health standards. Dr. Rhodes testified that only six of the inmates currently at Tamms suffer from “serious mental illness” according to such recognized standards. (Tr. at 20–21).
At the conclusion of Dr. Rhodes’ testimony, the undersigned District Judge inquired of Plaintiff’s counsel which of the over two hundred Tamms inmates’ mental health records she wished the Court to review. (Tr. at 47–52). Plaintiff’s counsel responded by submitting Plaintiffs’ Hearing Exhibit 3. (Tr. at 52). This document, titled “Names—Possible Plaintiffs,” is a list of inmates Plaintiffs’ counsel represented as containing those persons whose mental health records would be most likely to include potential class members. (Tr. at 52–53). Plaintiffs’ counsel also submitted as Plaintiffs’ Hearing Exhibit 4 approximately fifty questionnaires that some Tamms inmates returned to her. (Tr. at 52–53). These inmates who returned these questionnaires comprise a subset of the inmates whose names are listed on Plaintiffs’ Hearing Exhibit 3.
The District Judge then toured the facilities at Tamms along with counsel for both parties. This comprehensive tour allowed the District Judge to personally examine the living areas and mental health treatment facilities on site, including the suicide watch ward. This area contains cells in a separate section of the prison, where inmates are
2

Rasho v. Snyder, Not Reported in F.Supp.2d (2003)
close to mental health staff. The suicide watch area offers a little more social contact than the regular housing sections, and, arguably, the conditions of confinement there are slightly less restrictive. Finally, the Court spent several hours reviewing in camera the mental health records of those inmates listed in Plaintiffs’ Exhibits 3 and 4, including all those inmates currently on the “chronic caseload.”
III. Analysis
Plaintiffs seek reconsideration of the Court’s order denying class certification for failure to demonstrate that the proposed class is sufficiently numerous to meet the requirements of FEDERAL RULE OF CIVIL PROCEDURE 23(a)(1). Strictly speaking, a motion to reconsider does not exist under the Federal Rules of Civil Procedure. Nevertheless, such motions are routinely presented, and the Court will consider them if timely filed. If filed within ten days of the entry of the judgment or order in the case, the motions are construed as motions to alter or amend under Federal Rule of Civil Procedure 59(e). See, Britton v. Swift Transportation Co., Inc., 127 F.3d 616, 618 (7th Cir.1997)(“the key factor in determining whether a ‘substantive’ motion is cognizable under Rule 59 or 60 is its timing”). If thereafter, then the Motion is construed as one filed per Rule 60(b). U.S. v. Deutsch, 981 F.2d 299, 300–01 (7th Cir.1992). The Plaintiffs filed their motion to reconsider more than a month after the Court denied their motion for class certification. Therefore, the motion to reconsider must be evaluated under Rule 60(b).
*4 FEDERAL RULE OF CIVIL PROCEDURE 60(b) provides, in relevant part,
“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).”
FED. R. CIV. P. 60(b). Plaintiffs provided some newly discovered evidence, consisting of statements attributed to Dr. Rhodes, Donald Snyder, the Director of Tamms, and other unnamed Tamms staffers. These various statements suggested that the number of potential class members exceeded the fifteen reported by the Defendants. Plaintiffs’ new evidence was sufficient to convince the Court that a second look, including close examination of

relevant mental health records, was in order.
This second look proved extraordinarily worthwhile. The hearing, facility tour, and on-site in camera inspection of inmate records suggested by Plaintiffs’ counsel1 provided an opportunity to consider evidence unavailable to the Magistrate Judge and the District Judge thus far. Touring the facility in particular allowed the Court to see first-hand the circumstances in which the potential class members live, which in turn provided invaluable background and context to the Court’s review of the records.
Taken together, the hearing, facility tour, and review of the inmate records convinced the Court that Plaintiffs’ proposed class definition is overly broad. The Court believes that using this definition (Plaintiffs’ Hearing Exhibit 2) would not provide greater objectivity in determining who belongs in the class, but might produce the opposite result instead. Indeed, Plaintiffs’ proposed records definition would include those inmates who regularly manipulate the psychiatric staff to achieve some minor change in their status or conditions of confinement.
The “suicide watch” at Tamms illustrates this danger. Plaintiffs’ proposed definition would include among the class all inmates who “have been placed on ‘suicide watch status’ ... more than twice or more than seven days for one episode.” (Exhibit 2, ¶ c). However, Dr. Rhodes testified that she places on suicide watch any inmate who states that he wants to be on suicide watch or that he feels suicidal. (Tr. at 22, 31). She does so out of a sense of caution (Tr. at 35–36), recognizing that an inmate who makes such statements does not necessarily have the actual intent to cause his own death. (Tr. at 36–37). He may have other motives, such as temporary residence in the somewhat less restrictive environment of the mental health treatment ward where conversation with fellow inmates may be possible. (Tr. at 22, 37–38). Similar criteria govern placement on the “chronic caseload,” whose members may include prisoners with serious mental illnesses among those needing anger management training or who simply crave extra attention. (Tr. at 18–20).
*5 The Court’s in camera review of the records substantiates Dr. Rhodes’ highly credible testimony. Time and again, the records demonstrated that inmates on suicide watch or the “chronic caseload” had ulterior motives rather than a serious mental illness. One of the inmates listed on both Exhibits 3 and 4 stated that his mental health complaint was denial of access to television. Another claimed that he was suicidal because the mental health staff sent a man to treat him instead of a woman. A third was angry because he did not get the new shoes he wanted, and a fourth because his prison jump-suit was too large. In a startling confirmation of Dr. Rhodes’ testimony, one inmate on suicide watch frankly
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Rasho v. Snyder, Not Reported in F.Supp.2d (2003)
conceded that he wanted that status so he could talk with a friend. This short list merely illustrates the Court’s findings. It is by no means exhaustive; similar examples abound.
The Questionnaires Plaintiffs submitted as Plaintiffs’ Hearing Exhibit 4 further strengthens the Court’s conclusion, and illustrates the peril of making the inmates masters of whether they join the class. For example, many of the inmates who returned the questionnaires answered “yes” when asked whether they received psychotropic drugs while at Tamms. However, the questionnaire did not ask, and the prisoners did not answer, whether these drugs were administered to treat a serious mental illness or as part of a behavior modification plan. In any event, the Court believes that the prisoners may not be the most reliable authorities on the subject of psychotropic medication. Many of the prisoners who answered the psychotropic question in the affirmative stated that they had been drugged with “benadryl.” The Court recognizes this drug as an over-the-counter antihistamine.
All the evidence, taken together and in context, convinced the Court that the Plaintiffs’ proposed class definition, Plaintiffs’ Hearing Exhibit 2, is much broader than necessary. It would include as class members inmates for whom there is no recorded evidence of serious mental illness. Further, the Plaintiffs’ proposed class definition would make the process of determining who belongs in the class more subjective, not less. An inmate who sees the mental health staff more than once a month2 or who says he is suicidal because he wants a temporary housing change would be included among those with serious mental illnesses. This would put inclusion in the proposed class at the discretion of the inmates themselves, who may occasionally succumb to the temptation of manipulating Tamms’ mental health system in service of ulterior motives—to put it mildly.
Now that the Court has had the opportunity to receive the testimony of Dr. Rhodes, testimony which the Court found to be credible and which was substantiated by the records, it is abundantly clear that the definition of the class should be “seriously mentally ill” as that phrase is more fully defined and clarified in the Directive, Plaintiffs’ Hearing Exhibit 1. Moreover, the Court accepts as credible Dr. Rhodes’ testimony that only fifteen current inmates meet the criteria set forth in the Directive. Based on the evidence submitted by Plaintiffs, the testimony presented at the hearing, the tour of the prison, and its own in camera review of the inmates’ records, the Court believes that the Defendants did not understate the number of potential class members. The Court therefore FINDS that the number of potential class members is too small to render “joinder of all members impracticable.” FED. R. CIV. P. 23(a)(1). Plaintiffs motion to reconsider
Footnotes

is therefore DENIED. (Doc. 95).
*6 This finding raises another issue. Dr. Rhodes testified that the number of inmates meeting the Directive’s criteria is fifteen, yet stated that only six inmates are “seriously mentally ill” according to accepted medical criteria. (Tr. 20–21). Since Plaintiffs seek to represent a class consisting of Tamms inmates who suffer from “serious mental illnesses” (Complaint ¶ 7), the discrepancy raises the possibility that even the Directive’s definition is excessively broad. However, the Court need not resolve this dispute at present. The only issue now before the Court is whether the new evidence presented is sufficient to grant the Plaintiffs’ motion to reconsider the denial of class certification for lack of numerosity. The Court’s finding that Dr. Rhodes’ testimony is credible and supported by the additional evidence it reviewed provides no basis for reconsideration of that order, and thus no need to determine whether the Directive’s definition is also overly broad.
Finally, ten days after the hearing and the Court’s review of the records, the Plaintiffs’ attorney submitted a document she titled “Plaintiffs’ Post–Hearing Submission Regarding Class Certification.” (Doc. 119). The Defendants objected to this submission and moved that it be stricken. (Doc. 121). Plaintiffs’ submission consists largely of additional argument from the facts produced at the hearing. Such additional argument is unnecessary, since the Plaintiffs’ counsel had ample opportunity to present an oral argument at the hearing. In addition, the Court came to its findings and conclusions on the motion based on its careful examination of the evidence before it, as well as Plaintiffs’ counsel’s oral argument. There is no need to strike the Plaintiffs’ post-hearing submission, so that portion of the Defendants’ objections consisting of a motion to strike is DENIED. (Doc. 121).
IV. Conclusion
The Court DENIES the Plaintiffs’ motion to reconsider its order denying class certification. (Doc. 95). The Court also DENIES the Defendants’ motion to strike the Plaintiffs’ post-hearing submission. (Doc. 121).
IT IS SO ORDERED.
Parallel Citations
25 NDLR P 207
	
  
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Rasho v. Snyder, Not Reported in F.Supp.2d (2003)

1

That is, those inmates on Plaintiffs’ Hearing Exhibits 3 and 4, which include every inmate on the “chronic caseload.”

2

A visit from mental health more than once a month for any reason at all is sufficient for placement on the “chronic caseload.” (Tr.

18–19). Thus, being on the “chronic caseload” is not objective evidence of serious mental illness.

	
  

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BOBRICK, CSTRANSF, TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:99-cv-00056

R, et al v. Washington, et al Assigned to: Hon. Robert W. Gettleman Demand: $0 Cause: 42:1983 Civil Rights Act Plaintiff B R
Plaintiff

Date Filed: 01/07/1999 Date Terminated: 04/13/1999 Jury Demand: Both Nature of Suit: 555 Civil Rights (Prison Condition) Jurisdiction: Federal Question
represented by Jean MacLean Snyder Law Offices of Jean Maclean Snyder 4845 S. Kenwood Avenue Chicago, IL 60615-2015 (773)285-5100 Email: jeansnyder@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
James P. Chapman Fagel & Haber 140 South Dearborn Street Suite 1400 Chicago, IL 60603 (312) 346-7500 ATTORNEY TO BE NOTICED
Locke E. Bowman, III MacArthur Justice Center Northwestern University School of Law 357 East Chicago Avenue Chicago, IL 60611 (312) 503-0844 Fax: (312) 503-1272 Email: l-bowman@law.northwestern.edu ATTORNEY TO BE NOTICED
Mark Joseph Heyrman Edwin F. Mandel Legal Aid Clinic 1111 East 60th Street Chicago, IL 60637 (773) 702-9611

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R A
Plaintiff F F
Plaintiff N B Individually and on behalf of the plaintiff class

represented by Jean MacLean Snyder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James P. Chapman (See above for address) ATTORNEY TO BE NOTICED
Locke E. Bowman, III (See above for address) ATTORNEY TO BE NOTICED
Mark Joseph Heyrman (See above for address)
represented by Jean MacLean Snyder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James P. Chapman (See above for address) ATTORNEY TO BE NOTICED
Locke E. Bowman, III (See above for address) ATTORNEY TO BE NOTICED
Mark Joseph Heyrman (See above for address)
represented by Jean MacLean Snyder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James P. Chapman (See above for address) ATTORNEY TO BE NOTICED
Locke E. Bowman, III (See above for address) ATTORNEY TO BE NOTICED
Mark Joseph Heyrman (See above for address)

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V. Defendant Odie Washington Director, Illinois Department of Corrections TERMINATED: 02/25/1999
Defendant Ronald Shansky M.D., Medical Director, Illinios Department of Corrections
Defendant Marion E Page M.D., Chief Psychiatrist, Illinois Department of Corrections
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represented by Richard John Siegel Illinois Attorney General's Office 100 West Randolph Street 12th Floor Chicago, IL 60601 (312) 814-3000 TERMINATED: 02/25/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
IDOC Chief of Legal Services Illinois Department of Corrections 100 West Randolph Street 4-200 Chicago, IL 60601 (312) 793-3017 TERMINATED: 02/25/1999 ATTORNEY TO BE NOTICED
Diann Karen Marsalek Illinois Attorney General's Office 100 West Randolph Street 12th Floor Chicago, IL 60601 (312)814-4416 TERMINATED: 02/25/1999 ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diann Karen Marsalek (See above for address) ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diann Karen Marsalek (See above for address)
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Defendant Michael F O'Leary Deputy Director, Illinois Department of Corrections TERMINATED: 02/25/1999
Defendant George C Welborn Warden, Tamms Correctional Center
Defendant Charles Hinsley Assistant Warden, Operations, Tamms Correctional Center
Defendant Steven Hoepker Captain

ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) TERMINATED: 02/25/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
IDOC Chief of Legal Services (See above for address) TERMINATED: 02/25/1999 ATTORNEY TO BE NOTICED
Diann Karen Marsalek (See above for address) TERMINATED: 02/25/1999 ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diann Karen Marsalek (See above for address) ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
IDOC Chief of Legal Services (See above for address) ATTORNEY TO BE NOTICED
Diann Karen Marsalek (See above for address) ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Donald W Powers M.D., Medical Director, Tamms Correctional Center
Defendant Kelly Rhodes Ph.D., Supervising Clinical Psychologist, Tamms Correctional Center
Defendant Donald Snyder Director, Illinois Department of Corrections
Defendant George E DeTella Deputy Director, Illinois Department of Corrections
Defendant Marvin Powers M.D., Medical Director, Tamms Correctional Center Defendant Illinois Department of Corrections a public entity

Diann Karen Marsalek (See above for address) ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diann Karen Marsalek (See above for address) ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diann Karen Marsalek (See above for address) ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard John Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Date Filed 01/07/1999
01/07/1999 01/21/1999 01/26/1999
01/27/1999 01/27/1999 02/02/1999 02/02/1999 02/04/1999 02/04/1999 02/08/1999 02/08/1999 02/08/1999
02/08/1999 02/10/1999
02/10/1999

#

Docket Text

1 COMPLAINT; jury demand - Civil cover sheet - Appearance(s) of James P. Chapman, Mark Joseph Heyrman, Locke E. Bowman III, Jean MacLean Snyder as attorney(s) for plaintiff ( nine orignals and nine copies summons(es) issued.) ( Documents: 1-1 through 1-3) (dmkf) (Entered: 01/08/1999)
RECEIPT regarding payment of filing fee paid; on 1/7/98 in the amount of $ 150.00, receipt # 104111. (dmkf) (Entered: 01/08/1999)
2 ATTORNEY APPEARANCE for defendants Ronald Shansky, Marion E. Page by Richard J Siegel (dmkf) (Entered: 01/25/1999)
3 ATTORNEY APPEARANCE for defendants George C Welborn, Steven Hoepker, Donald W Powers, Kelly Rhodes by Richard J Siegel (dmkf) (Entered: 01/27/1999)
4 ATTORNEY APPEARANCE for defendants Odie Washington, Michael F O'Leary by Richard J Siegel (dmkf) (Entered: 01/28/1999)
5 ATTORNEY APPEARANCE for defendant Charles Hinsley by Richard J Siegel (dmkf) (Entered: 01/28/1999)
8 MOTION by defendants for transfer of venue and to stay time within which tot answer complaint ; Notice of motion. (tlm) (Entered: 02/16/1999)
9 MEMORANDUM by defendant in support of motion for transfer of venue (Attachments). [8-1] (tlm) (Entered: 02/16/1999)
6 AFFIDAVIT of George Welborn. (dmkf) Modified on 02/05/1999 (Entered: 02/05/1999)
7 AFFIDAVIT of Odie Washington; Notice of filing. (dmkf) Modified on 02/05/1999 (Entered: 02/05/1999)
20 MOTION by plaintiff to take immediate discovery to document condition of named plaintiffs (Attachment); Notice of motion. (dmkf) (Entered: 02/23/1999)
21 MOTION by defendant to stay discovery ; Notice of motion. (dmkf) (Entered: 02/23/1999)
22 MOTION by plaintiff to secure evidence , and to take immediate discovery to obtain, examine , and copy videotapes (Attachments) ; Notice of motion. (dmkf) (Entered: 02/23/1999)
23 RESPONSE by plaintiff to defendants' motion to stay discovery [21-1] (dmkf) (Entered: 02/23/1999)
10 MINUTE ORDER of 2/10/99 by Hon. Robert W. Gettleman : Answer brief to Defendants' motion for transfer of venue [8-1] and to stay time within which to answer complaint [8-2] due 02/26/99. Reply to answer brief due 3/12/99. Status hearing set to 9:00 4/13/99 . No notice (tlm) (Entered: 02/16/1999)
19 ATTORNEY APPEARANCE for defendants Odie Washington, Ronald Shansky, Marion E Page, Michael F O'Leary, George C Welborn, Charles Hinsley, Steven

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02/10/1999 02/16/1999 02/16/1999 02/16/1999 02/16/1999 02/16/1999 02/16/1999 02/16/1999 02/16/1999 02/25/1999
02/25/1999 02/25/1999 02/25/1999 02/25/1999
03/04/1999

Hoepker, Donald W Powers, Kelly Rhodes by Diann Karen Marsalek (dmkf) (Entered: 02/23/1999)
24 MINUTE ORDER of 2/10/99 by Hon. Robert W. Gettleman: Leave is granted to Diann K. Marsalek to file apperance as additional counsel on behalf of defendants. No notice (dmkf) (Entered: 02/23/1999)
11 RETURN OF SERVICE of summons and complaint executed upon defendant Kelly Rhodes on 1/14/99 (dmkf) (Entered: 02/17/1999)
12 RETURN OF SERVICE of summons and complaint executed upon defendant Odie Washington on 1/14/99 (dmkf) (Entered: 02/17/1999)
13 RETURN OF SERVICE of summons and complaint executed upon defendant Michael F O'Leary on 1/14/99 (dmkf) (Entered: 02/17/1999)
14 RETURN OF SERVICE of summons and complaint executed upon defendant Donald W Powers on 1/14/99 (dmkf) (Entered: 02/17/1999)
15 RETURN OF SERVICE of summons and complaint executed upon defendant Steven Hoepker on 1/14/99 (dmkf) (Entered: 02/17/1999)
16 RETURN OF SERVICE of summons and complaint executed upon defendant Charles Hinsley on 2/16/99 (dmkf) (Entered: 02/17/1999)
17 RETURN OF SERVICE of summons and complaint executed upon defendant George C Welborn on 2/14/99 (dmkf) (Entered: 02/17/1999)
18 RETURN OF SERVICE of summons and complaint executed upon defendant Marion E Page on 1/13/99; Notice of filing. (dmkf) Modified on 02/17/1999 (Entered: 02/17/1999)
25 AMENDED COMPLAINT [1-1] by plaintiffs; jury demand terminating defendants Michael F O'Leary, Odie Washington; adding Donald Snyder, George E DeTella, Marvin Powers, Illinois Department of Corrections (dmkf) (Entered: 03/01/1999)
26 MOTION by plaintiff to enter order relating to initial discovery (Attachment); Notice of motion. (dmkf) (Entered: 03/01/1999)
27 MINUTE ORDER of 2/25/99 by Hon. Robert W. Gettleman : Plaintiffs' motion to enter order relating to initial discovery is granted [26-1]. Counsel to submit draft order. No notice (dmkf) (Entered: 03/01/1999)
28 MOTION by plaintiff to extend time to respond to defendants' motion to transfer venue , and to stay time within which to answer complaint ; Notice of motion. (dmkf) (Entered: 03/02/1999)
29 MINUTE ORDER of 2/25/99 by Hon. Robert W. Gettleman : Plaintiffs' motion to extend time to 03/08/99 to respond to defendants' motion to transfer venue is granted [28-1]. Defendants' which to answer complaint is denied. Defendants' answer is due by 03/31/99 [28-2], [21-1], [8-1]. No notice (dmkf) (Entered: 03/02/1999)
30 ORDER related to initial discovery (dmkf) (Entered: 03/11/1999)

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03/04/1999 03/11/1999 03/11/1999 03/11/1999 03/11/1999 03/22/1999 03/23/1999 03/25/1999 03/31/1999
03/31/1999 03/31/1999
04/01/1999 04/02/1999 04/05/1999 04/05/1999 04/05/1999

31 MINUTE ORDER of 3/4/99 by Hon. Robert W. Gettleman : Enter order related to initial discovery. Mailed notice (dmkf) (Entered: 03/11/1999)
SUMMONS issued as to defendants Donald Snyder, George E DeTella, IL Dept Corr (dmkf) (Entered: 03/11/1999)
32 MOTION by plaintiff for leave to file memorandum in excess of fifteen pages ; Notice of motion. (dmkf) (Entered: 03/11/1999)
33 MEMORANDUM by plaintiffs in response to defendants' motion for transfer of venue [8-1], and to stay time within which to answer complaint [8-2] (Attachments). (dmkf) (Entered: 03/11/1999)
34 MINUTE ORDER of 3/11/99 by Hon. Robert W. Gettleman : Plaintiffs' motion for leave to file memorandum in excess of fifteen pages is granted [32-1]. Telephoned notice (dmkf) (Entered: 03/11/1999)
35 REPLY brief by defendants' in support of motion for transfer of venue [8-1] (Exhibits); Notice of filing. (vmj) (Entered: 03/23/1999)
36 AFFIDAVIT of George Welborn; Notice of filing. (dmkf) (Entered: 03/29/1999)
37 MOTION by defendants for leave to file correction to reply brief instanter ; Notice of motion. (dmkf) (Entered: 03/29/1999)
39 MOTION by defendants Ronald Shansky, Marion E Page, George C Welborn, Charles Hinsley, Steven Hoepker, Donald W Powers, Kelly Rhodes, Donald Snyder, George E DeTella and IL Dept Corr to dismiss plaintiffs' amended complaint ; Notice of motion (yap) (Entered: 04/12/1999)
40 AGREED MOTION by defendants to file brief in excess of 15 pages (yap) (Entered: 04/12/1999)
41 MEMORANDUM by defendants Ronald Shansky, Marion E Page, George C Welborn, Charles Hinsley, Steven Hoepker, Donald W Powers, Kelly Rhodes, Donald Snyder, George E DeTella, and IL Dept Corr in support of their motion to dismiss plaintiffs' amended complaint [39-1] (yap) (Entered: 04/12/1999)
38 MINUTE ORDER of 4/1/99 by Hon. Robert W. Gettleman : Defendants' motion for leave to file correction to reply brief instanter is granted [37-1]. No notice (dmkf) (Entered: 04/02/1999)
60 TRANSCRIPT of proceedings for the following date(s): held on 02/10/99, 02/16/99, 02/25/99 before Honorable Robert W. Gettleman (3 vols.: 60-1, 60-2, 60-3). (dmkf) (Entered: 04/19/1999)
42 MOTION by plaintiffs for leave to file a sur-reply to defendants' reply brief ; Notice of motion (yap) (Entered: 04/12/1999)
43 SURREPLY by plaintiffs to defendants' reply brief in support of motion for transfer of venue [8-1] (Exhibits) (yap) (Entered: 04/12/1999)
44 MOTION by plaintiffs for leave to file original executed declarations (Attachments); Notice of motion (yap) (Entered: 04/12/1999)

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04/05/1999 04/05/1999 04/05/1999 04/07/1999
04/08/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999
04/09/1999
04/12/1999 04/13/1999 04/13/1999
04/16/1999

45 RETURN OF SERVICE executed upon defendant Ronald Shansky on 3/12/99 (yap) (Entered: 04/12/1999)
46 RETURN OF SERVICE executed upon defendant IL Dept Corr on 3/12/99 (yap) (Entered: 04/12/1999)
47 RETURN OF SERVICE executed upon defendant George E DeTella on 3/12/99 (yap) (Entered: 04/12/1999)
48 MINUTE ORDER of 4/7/99 by Hon. Robert W. Gettleman: Defendants' motion to file brief in excess of 15 pages [40-1] is granted. Plaintiffs' response to defendants' motion to dismiss plaintiffs' amended complaint [39-1] is due by 4/29/99. Defendants' reply is due by 5/14/99. No notice (yap) (Entered: 04/12/1999)
49 MINUTE ORDER of 4/8/99 by Hon. Robert W. Gettleman: Plaintiffs' motion for leave to file a sur-reply to defendants' reply brief [42-1] is granted. Defendants' sur-reply brief is due by 4/12/99. No notice (yap) (Entered: 04/12/1999)
50 MINUTE ORDER of 4/9/99 by Hon. Robert W. Gettleman: Plaintifffs' motion for leave to file original executed declarations [44-1] is granted. No notice (yap) (Entered: 04/12/1999)
51 DECLARATION by Faygie Fields (yap) (Entered: 04/12/1999)
52 DECLARATION by Brian Nelson (yap) (Entered: 04/12/1999)
53 DECLARATION by Ashoor Rasho (yap) (Entered: 04/12/1999)
54 DECLARATION by Robert Boyd (yap) (Entered: 04/12/1999)
55 OBJECTIONS by defendants Ronald Shansky, Marion E Page, George C Welborn, Charles Hinsley, Steven Hoepker, Donald W Powers, Kelly Rhodes, Donald Snyder, George E DeTella, IL Dept Corr to plaintiffs' surreply [43-1] with memorandum in opposition; Notice of filing (yap) (Entered: 04/12/1999)
55 MEMORANDUM by defendants Ronald Shansky, Marion E Page, George C Welborn, Charles Hinsley, Steven Hoepker, Donald W Powers, Kelly Rhodes, Donald Snyder, defendant George E DeTella, IL Dept Corr in opposition to plaintiffs' surreply [43-1]; Notice of filing (yap) (Entered: 04/12/1999)
56 ATTORNEY APPEARANCE for defendants Donald Snyder, George E DeTella, IL Dept Corr by Richard John Siegel (dmkf) (Entered: 04/13/1999)
57 MEMORANDUM OPINION AND ORDER (dmkf) (Entered: 04/14/1999)
58 MINUTE ORDER of 4/13/99 by Hon. Robert W. Gettleman : Memorandum opinion and order entered. Accordinly, the court grants defendants' motion for transfer this case to the Southern District of Illinois is granted [8-1] Case transferred to Dist of: Sourthern District of , terminating case . Mailed notice (dmkf) Modified on 04/14/1999 (Entered: 04/14/1999)
59 MINUTE ORDER of 4/16/99 by Hon. Robert W. Gettleman : The clerk is directed to expedite the transfer of this case. Telephoned notice (dmkf) (Entered: 04/19/1999)

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04/19/1999
04/26/1999 04/26/1999

CERTIFIED AND TRANSMITTED the complete record to the USDC for the Sothern District of Illinois consisting of one (1) volumes of pleadings, certified copy of transfer order and docket entries, transmittal letter, and certificate, via certified mail no. Z 340 589 573 : Mailed copy of certificate and transmittal letter to counsel of record. (dmkf) (Entered: 04/19/1999)
61 ACKNOWLEDGMENT and receipt of certified mail no. Z340 589 573 executed on 04/22/99 (dmkf) (Entered: 04/27/1999)
62 LETTER acknowledging receipt of record transferred to the U.S. District Court for the Southern District of Illinois, assigned case no. 99-280-DRH. (dmkf) (Entered: 04/27/1999)

PACER Service Center

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Description: Docket Report Search Criteria: 1:99-cv-00056

Billable Pages: 6

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CJRA_A, CLOSED, FRC, MMM
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:00-cv-00528-DRH-CJP

Rasho, et al v. Snyder, et al Assigned to: Judge David R Herndon Referred to: Mag/Judge Clifford J. Proud Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff Ashoor Rasho Individually and on behalf of the plaintiff class TERMINATED: 06/10/2004
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Date Filed: 07/06/2000 Date Terminated: 05/26/2005 Jury Demand: Plaintiff Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question
represented by James P. Chapman James P. Chapman & Associates Generally Admitted 3629 South Prairie Avenue Chicago, IL 60653 773-548-7230 Email: JamesPChapman@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Maclea Snyder Law Office: Jean Snyder Cook County 4845 S. Kenwood Ave. Chicago, IL 60615 773-285-5100 Fax: 773-285-5101 Email: jeansnyder@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Locke E. Bowman University of Chicago Law School Cook County 1111 East 60th Street MacArthur Justice Center Chicago, IL 60637 773-753-4405 Email: locke_bowman@law.uchicago.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark J. Heyrman Mandel Legal Aid Clinic Cook County 1111 East 60th Street
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Plaintiff Faygie Fields Individually and on behalf of the plaintiff class
Plaintiff Brian Nelson Individually and on behalf of the plaintiff class
Plaintiff
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University of Chicago Law School Chicago, IL 60637 773-702-9611 Email: m-heyrman@uchicago.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James P. Chapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Maclea Snyder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Locke E. Bowman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark J. Heyrman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James P. Chapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Maclea Snyder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Locke E. Bowman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark J. Heyrman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Robert Boyd Individually and on behalf of the plaintiff class TERMINATED: 10/01/2002
V. Defendant Donald N Snyder, Jr Director, Illinois Department of Corrections
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represented by James P. Chapman (See above for address) TERMINATED: 10/01/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Maclea Snyder (See above for address) TERMINATED: 10/01/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Locke E. Bowman (See above for address) TERMINATED: 10/01/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark J. Heyrman (See above for address) TERMINATED: 10/01/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson Illinois Attorney General's Office Springfield Generally Admitted 500 South Second Street Springfield, IL 62706 217-782-9096 Fax: 217-524-5091 Email: chiggerson@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony Illinois Department of Corrections Generally Admitted 100 West Randolph Street Suite 4-200 Chicago, IL 60601 312-814-3017 TERMINATED: 01/12/2004 LEAD ATTORNEY
R. Shelton Frey
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Defendant Willard O Elyea MD Medical Director, Illinois Department of Corrections

https://ecf.ilsd.uscourts.gov/cgi-bin/DktRpt.pl?444525838538854-L_35...
Health Professional Ltd Generally Admitted 9000 North Lindbergh Drive Peoria, IL 61615 309-272-1642 Email: sfrey@hpltd.com TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer Illinois Department of Corrections Generally Admitted 1301 Concordia Court P.O. box 19277 Springfield, IL 62702-5643 217-522-2666 Email: rstauffer@idoc.state.il.us TERMINATED: 02/21/2003 LEAD ATTORNEY
Terence Corrigan Illinois Attorney General's Office Springfield Generally Admitted 500 South Second Street Springfield, IL 62706 217-782-5819 Email: tcorrigan@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony (See above for address) TERMINATED: 01/12/2004 LEAD ATTORNEY
R. Shelton Frey (See above for address) TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003

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Defendant Dennis Hopkins Dr., Chief of Mental Health Services, Illinois Department of Corrections
Defendant George E DeTella Associate Director, Illinois Department of Corrections
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LEAD ATTORNEY
Terence Corrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony (See above for address) TERMINATED: 01/12/2004 LEAD ATTORNEY
R. Shelton Frey (See above for address) TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003 LEAD ATTORNEY
Terence Corrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony (See above for address) TERMINATED: 01/12/2004 LEAD ATTORNEY
R. Shelton Frey (See above for address) TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer
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Defendant George Welborn Warden, Tamms Correctional Center
Defendant Marvin Powers MD Medical Director, Tamms Correctional Center TERMINATED: 10/01/2002
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(See above for address) TERMINATED: 02/21/2003 LEAD ATTORNEY
Terence Corrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony (See above for address) TERMINATED: 01/12/2004 LEAD ATTORNEY
R. Shelton Frey (See above for address) TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003 LEAD ATTORNEY
Terence Corrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony (See above for address) TERMINATED: 01/12/2004 LEAD ATTORNEY
Patrick J. Londrigan no longer with firm Generally Admitted TERMINATED: 10/01/2002
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Defendant Kelly Rhodes Ph.D. Supervising Clinical Psychologist, Tamms Correctional Center
Defendant Rakesh Chandra MD Psychiatrist, Tamms Correctional Center TERMINATED: 10/01/2002

https://ecf.ilsd.uscourts.gov/cgi-bin/DktRpt.pl?444525838538854-L_35...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Shelton Frey (See above for address) TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003 LEAD ATTORNEY
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony (See above for address) TERMINATED: 01/12/2004 LEAD ATTORNEY
R. Shelton Frey (See above for address) TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003 LEAD ATTORNEY
Terence Corrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony (See above for address) TERMINATED: 01/12/2004 LEAD ATTORNEY

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Defendant
Illinois Department of Corrections a public entity

Patrick J. Londrigan (See above for address) TERMINATED: 10/01/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Shelton Frey (See above for address) TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003 LEAD ATTORNEY
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine M. Anthony (See above for address) TERMINATED: 01/12/2004 LEAD ATTORNEY
R. Shelton Frey (See above for address) TERMINATED: 01/08/2003 LEAD ATTORNEY
Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003 LEAD ATTORNEY
Terence Corrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/06/2000 07/06/2000

#

Docket Text

1 COMPLAINT (Summonses issued) Filing fee pd $ 150.00 receipt # 300 68448 (fe) (Entered: 07/07/2000)
2 ENTRY OF APPEARANCE for plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd by Jean Maclean Snyder (fe) (Entered: 07/07/2000)

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07/06/2000
07/13/2000 07/13/2000 07/24/2000 07/24/2000 07/24/2000 07/24/2000 07/24/2000 07/24/2000 07/24/2000 07/24/2000 07/24/2000 08/01/2000 08/01/2000 08/02/2000
08/11/2000 09/18/2000
09/18/2000

3 ENTRY OF ADDITIONAL APPEARANCE for plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd by James P. Chapman (fe) (Entered: 07/07/2000)
4 ORDER by Judge David R. Herndon Case referred to Mag/Judge Clifford J. Proud (cc: all counsel) (myz) (Entered: 07/13/2000)
CJRA Track A assigned by Judge David R. Herndon (myz) (Entered: 07/13/2000)
RETURN OF SERVICE executed upon defendant Dennis Hopkins on 7/12/00 (acm) (Entered: 07/24/2000)
RETURN OF SERVICE executed upon defendant IL Dept of Corr on 7/12/00 (acm) (Entered: 07/24/2000)
RETURN OF SERVICE executed upon defendant George E DeTella on 7/12/00 (acm) (Entered: 07/24/2000)
RETURN OF SERVICE executed upon defendant Donald N Snyder Jr on 7/12/00 (acm) (Entered: 07/24/2000)
RETURN OF SERVICE executed upon defendant Willard O Elyea on 7/12/00 (acm) (Entered: 07/24/2000)
RETURN OF SERVICE executed upon defendant George Welborn on 7/12/00 (acm) (Entered: 07/24/2000)
RETURN OF SERVICE executed upon defendant Marvin Powers on 7/12/00 (acm) (Entered: 07/24/2000)
RETURN OF SERVICE executed upon defendant Kelly Rhodes on 7/12/00 (acm) (Entered: 07/24/2000)
RETURN OF SERVICE executed upon defendant Rakesh Chandra on 7/12/00 (acm) (Entered: 07/24/2000)
5 ATTORNEY APPEARANCE for defendant Marvin Powers, defendant Rakesh Chandra by Patrick J. Londrigan (acm) (Entered: 08/01/2000)
6 MOTION by defendant Marvin Powers, defendant Rakesh Chandra for additional time in which to plead (acm) (Entered: 08/01/2000)
7 MOTION by defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Kelly Rhodes, IL Dept of Corr for enlargement of time to answer (acm) (Entered: 08/07/2000)
8 ORDER by Mag/Judge Clifford J. Proud granting motions for additional time to plead [6-1] & [7-1] to 9/15/00 (cc: all counsel) (dmw) (Entered: 08/16/2000)
9 MOTION by defendants Snyder, Elyea, Hopkins, DeTella, Welborn, Powers, Rhodes, Chandra and IDOC to dismiss plaintiffs' complaint (acm) (Entered: 09/20/2000)
10 MOTION by defendants for leave to file brief in excess of 10 pages limitation instanter (acm) (Entered: 09/20/2000)

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09/20/2000 09/20/2000 09/29/2000
10/02/2000
10/02/2000 10/12/2000 10/12/2000 10/20/2000 10/20/2000 10/23/2000
12/04/2000 12/20/2000 12/22/2000
12/27/2000 12/27/2000

11 MOTION by defendants Marvin Powers & Rakesh Chandra to dismiss Counts I, II and III (dmw) (Entered: 09/25/2000)
12 MEMORANDUM by defendants Marvin Powers & Rakesh Chandra in support of motion to dismiss Counts I, II and III [11-1] (dmw) (Entered: 09/25/2000)
13 ATTORNEY APPEARANCE for defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Marvin Powers, Kelly Rhodes, Rakesh Chandra, IL Dept of Corr by Shelton Frey (acm) (Entered: 10/04/2000)
14 ATTORNEY APPEARANCE for defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Marvin Powers, Kelly Rhodes, Rakesh Chandra, IL Dept of Corr by Randall C. Stauffer (acm) (Entered: 10/04/2000)
15 MOTION by plaintiffs to extend briefing schedule of defendants' motion to dismiss (acm) (Entered: 10/04/2000)
16 ORDER by Mag/Judge Clifford J. Proud granting motion for leave to file brief in excess of 10 pages limitation instanter [10-1], re [9-1] (cc: all counsel) (fe) (Entered: 10/13/2000)
17 MEMORANDUM by defendant in support of motion to dismiss plaintiffs' complaint [9-1] (fe) (Entered: 10/13/2000)
18 ATTORNEY APPEARANCE for plaintiffs by Mark J. Heyrman (dlr) (Entered: 10/25/2000)
19 ATTORNEY APPEARANCE for plaintiffs by Locke E. Bowman (dlr) (Entered: 10/25/2000)
20 ORDER by Mag/Judge Clifford J. Proud granting motion to extend briefing schedule of defendants' motion to dismiss [15-1], motion to dismiss Counts I, II and III [11-1] resp due 12/4/00, motion to dismiss plaintiffs' complaint [9-1] resp due 12/4/00 (cc: all counsel) (fe) (Entered: 10/26/2000)
21 SECOND MOTION by plaintiffs to extend briefing schedule of defendants' motions to dismiss (dlr) (Entered: 12/12/2000)
22 MOTION by plaintiff Ashoor Rasho, plaintiff Faygie Fields, plaintiff Brian Nelson, plaintiff Robert Boyd for leave to file memorandum in excess of ten pages (amv) (Entered: 12/22/2000)
25 ORDER by Mag/Judge Clifford J. Proud granting motion to extend briefing schedule of defendants' motions to dismiss [21-1], motion to dismiss Counts I, II and III [11-1] resp due 12/20/00, motion to dismiss plaintiffs' complaint [9-1] resp due 12/20/00 (cc: all counsel) (car) (Entered: 01/03/2001)
23 ORDER by Mag/Judge Clifford J. Proud granting motion for leave to file memorandum in excess of ten pages [22-1], re [11-1], re [9-1] (cc: all counsel) (fe) (Entered: 01/03/2001)
24 RESPONSE by plaintiff to motion to dismiss Counts I, II and III [11-1], motion to dismiss plaintiffs' complaint [9-1] (fe) (Entered: 01/03/2001)

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01/05/2001 01/08/2001 03/01/2001 03/15/2001 03/15/2001 03/15/2001 04/02/2001 04/20/2001 04/30/2001 05/07/2001
05/18/2001 06/01/2001
06/01/2001 06/01/2001 06/01/2001

VOLUME NUMBER 2 created, beginning with document number 26. (dlr) (Entered: 08/13/2001)
26 REPLY by defendants in support of their motion to dismiss plaintiffs' complaint re [11-1], re [9-1] (fe) (Entered: 01/11/2001)
27 MOTION by defendants to stay discovery pending a ruling on defendants' motion to dismiss (dlr) (Entered: 03/05/2001)
28 MOTION by plaintiff Ashoor Rasho, plaintiff Faygie Fields, plaintiff Brian Nelson, plaintiff Robert Boyd for leave to file memorandum in excess of ten pages (amv) (Entered: 03/22/2001)
29 MOTION by plaintiff Ashoor Rasho, plaintiff Faygie Fields, plaintiff Brian Nelson, plaintiff Robert Boyd to certify the plaintiff's class (amv) (Entered: 03/22/2001)
30 RESPONSE by plaintiff Ashoor Rasho, plaintiff Faygie Fields, plaintiff Brian Nelson, plaintiff Robert Boyd to defendants' motion to stay discovery pending a ruling on defendants' motion to dismiss [27-1] (amv) (Entered: 03/22/2001)
31 MOTION by defendants for enlargement of time in which to file a response to plaintiff's motion to certify the plaintiff class (dlr) (Entered: 04/03/2001)
32 MOTION by defendants for leave to to File Memorandum of Law in Opposition to Plaintiff's Motion to Certify in Excess of Ten Pages Instanter (scj) (Entered: 04/24/2001)
33 MOTION by plaintiffs' to extend time to reply to defendants' memorandum of law in opposition to plaintiffs' motion to certify the plaintiff class (fe) (Entered: 05/04/2001)
34 ORDER by Mag/Judge Clifford J. Proud granting motion to extend time to reply to defendants' opposition to plaintiffs' motion to certify the plaintiff class [33-1] motion to certify the plaintiff's class [29-1] resp due 5/18/01 (cc: all counsel) (dmw) (Entered: 05/09/2001)
35 SECOND MOTION by plaintiffs to extend time to reply to defendants' memorandum of law in opposition to plaintiffs' motion to certify the plaintiff class (dlr) (Entered: 05/24/2001)
36 ORDER by Mag/Judge Clifford J. Proud granting motion to extend time to reply to defendants' memorandum of law in opposition to plaintiffs' motion to certify the plaintiff class [35-1] up to and including 6/8/01 (cc: all counsel) (dlr) (Entered: 06/07/2001)
37 ORDER by Mag/Judge Clifford J. Proud granting motion for leave to file memorandum in excess of ten pages [28-1] (cc: all counsel) (dlr) (Entered: 06/07/2001)
38 MEMORANDUM by plaintiffs in support of motion to certify the plaintiff's class [29-1] (dlr) (Entered: 06/07/2001)
39 ORDER by Mag/Judge Clifford J. Proud granting motion to stay discovery pending a ruling on defendants' motion to dismiss [27-1]; discovery is stayed until further notice (cc: all counsel) (dlr) (Entered: 06/07/2001)

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06/01/2001
06/01/2001 06/08/2001 06/13/2001
07/06/2001 07/11/2001 07/20/2001 08/02/2001 08/02/2001 08/13/2001 08/16/2001 08/16/2001
08/20/2001 09/18/2001

40 ORDER by Mag/Judge Clifford J. Proud granting motion for leave to to File Memorandum of Law in Opposition to Plaintiff's Motion to Certify in Excess of Ten Pages Instanter [32-1], granting motion for enlargement of time in which to file a response to plaintiff's motion to certify the plaintiff class [31-1] (cc: all counsel) (dlr) (Entered: 06/07/2001)
41 MEMORANDUM OF LAW by defendants in opposition to motion to certify the plaintiff's class [29-1] (dlr) (Entered: 06/07/2001)
42 THIRD MOTION by plaintiffs to extend time to reply to defendants' memorandum in opposition to plaintiffs' motion to certify plaintiff class (dmw) (Entered: 06/11/2001)
43 ORDER by Mag/Judge Clifford J. Proud granting motion to extend time to reply to defendants' memorandum in opposition to plaintiffs' motion to certify plaintiff class [42-1], re [29-1] ; brief ddl set for Friday, 7/6/01 (cc: all counsel) (scj) (Entered: 06/18/2001)
44 FOURTH MOTION by plaintiffs for extension of time to reply to defendants' memorandum in opposition to plaintiffs' motion to certify class (dmw) (Entered: 07/10/2001)
45 REPLY by plaintiff re defendants memorandum of law in opposition to plaintiffs' motion to certify the plaintiff class [29-1] (scj) (Entered: 07/12/2001)
46 MOTION by plaintiffs' Ashoor Rasho, Faygie Fields, Brian Nelson, Robert Boyd to file certification and cv (tjh) (Entered: 07/24/2001)
47 REPORT AND RECOMMENDATION concerning motion to dismiss Counts I, II and III [11-1] ; recommending that motion be granted in part and denied in part (cc: all counsel) (dlr) (Entered: 08/08/2001)
48 REPORT AND RECOMMENDATION concerning motion to dismiss plaintiffs' complaint [9-1] ; recommending that motion be granted in part and denied in part (cc: all counsel) (dlr) (Entered: 08/08/2001)
49 UNOPPOSED MOTION by plaintiffs to extend time for objection to Magistrate's report and recommendation (dmw) (Entered: 08/14/2001)
50 UNOPPOSED MOTION by plaintiffs to extend time for objection to Magistrate's Report and Recommendation (dlr) (Entered: 08/16/2001)
51 ORDER by Judge David R. Herndon granting motion to extend time for objection to Magistrate's report and recommendation [49-1]; report and recommendation concerning motion to dismiss plaintiffs' complaint [9-1] [48-1] resp due 9/10/01, report and recommendation concerning motion to dismiss Counts I, II and III [11-1] [47-1] resp due 9/10/01 (cc: all counsel) (dlr) (Entered: 08/20/2001)
52 ORDER by Judge David R. Herndon granting motion to extend time for objection to report and recommenation [50-1], report and recommendations [48-1] & [47-1] resp due 9/10/01 (cc: all counsel) (dmw) (Entered: 08/22/2001)
53 MEMORANDUM AND ORDER by Judge David R. Herndon adopting report and recommendation concerning motion to dismiss Counts I, II and III [11-1]

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09/18/2001
10/01/2001 10/03/2001 10/04/2001 10/04/2001 10/04/2001 10/05/2001 11/01/2001 11/06/2001 11/06/2001 11/06/2001
11/20/2001 11/25/2001 11/26/2001

[47-1]; granting in part and denying in part motion to dismiss Counts I, II and III [11-1]; the individual capacity claims against Chandra in Counts I, II , and III are dismissed; all individual capacity claims against Powers in Counts II and III ar dismissed; see order for specifics (cc: all counsel) (dlr) (Entered: 09/19/2001)
54 MEMORANDUM AND ORDER by Judge David R. Herndon adopting report and recommendation concerning motion to dismiss plaintiffs' complaint [9-1] [48-1]; granting in part and denying in part motion to dismiss plaintiffs' complaint [9-1]; see order for specifics (cc: all counsel) (dlr) (Entered: 09/19/2001)
55 MOTION by defendants for enlargement of time in which to answer complaint (dlr) Modified on 10/02/2001 (Entered: 10/02/2001)
59 ORDER by Mag/Judge Clifford J. Proud granting motion for enlargement of time in which to answer complaint [55-1] brief ddl set 11/2/01 (cc: all counsel) (scj) (Entered: 10/05/2001)
56 ORDER by Mag/Judge Clifford J. Proud denying motion for extension of time to reply to defendants' memorandum in opposition to plaintiffs' motion to certify class as moot [44-1] (cc: all counsel) (fe) (Entered: 10/05/2001)
57 ORDER by Mag/Judge Clifford J. Proud granting motion to file certification and cv [46-1], re [29-1] (cc: all counsel) (fe) (Entered: 10/05/2001)
58 CERTIFICATION (AFFIDAVIT) of Kathryn A. Burns, M.D. re motion to certify [29-1] (fe) (Entered: 10/05/2001)
60 MOTION by plaintiffs to amend complaint on it's face (dlr) (Entered: 10/10/2001)
61 SECOND MOTION by defendants for enlargement of time to answer or otherwise respond to complaint (dmw) (Entered: 11/02/2001)
62 ORDER by Mag/Judge Clifford J. Proud denying motion to amend complaint on it's face [60-1] (cc: all counsel) (fe) (Entered: 11/08/2001)
63 ORDER by Mag/Judge Clifford J. Proud granting motion for enlargement of time to answer or otherwise respond to complaint, up to and including 12/7/01 [61-1] (cc: all counsel) (fe) (Entered: 11/08/2001)
64 REPORT AND RECOMMENDATION: recommending that the motion to certify the plaintiff's class be denied, and that the named plaintiffs, Rasho, Fields, Nelson and Boyd, proceed with their joined individual claims [29-1] (cc: all counsel) (fe) (Entered: 11/08/2001)
65 MOTION by plaintiffs to extend time for objection to report and recommendation (dmw) (Entered: 11/21/2001)
VOLUME NUMBER 3 created, beginning with document number 66. (dlr) (Entered: 11/28/2001)
66 ORDER by Judge David R. Herndon granting motion to extend time for objection to report and recommendation [65-1], report and recommendation: recommending that the motion to certify the plaintiff's class be denied, and that the named plaintiffs, Rasho, Fields, Nelson and Boyd, proceed with their joined

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12/07/2001 12/14/2001
12/18/2001 12/27/2001 01/15/2002 01/25/2002 01/25/2002
02/11/2002
02/15/2002 02/25/2002 03/04/2002
03/07/2002 03/11/2002

individual claims [29-1] [64-1] resp due 12/18/01 (cc: all counsel) (dlr) (Entered: 11/28/2001)
67 THIRD MOTION by defendants for enlargement of time to answer or otherwise respond to complaint (dmw) (Entered: 12/11/2001)
68 ORDER by Mag/Judge Clifford J. Proud granting motion for enlargement of time. Defendants are given up to and including the 21st day after this court enters a order concerning the report and recommendation to answer or otherwise plead to complaint [67-1], re [64-1], re [29-1] (cc: all counsel) (fe) (Entered: 12/18/2001)
69 SECOND MOTION by plaintiffs to extend time for objection to magistrate's report and recommendation (dlr) (Entered: 12/21/2001)
70 ORDER by Judge David R. Herndon granting motion to extend time for objection to magistrate's report and recommendation [69-1], resp due 1/15/02 (cc: all counsel) (fe) (Entered: 12/28/2001)
71 MOTION by plaintiffs' Ashoor Rasho, Faygie Fields, Brian Nelson, Robert Boyd to extend time for objection to magistrate's report and recommendation (tjh) (Entered: 01/24/2002)
72 OBJECTIONS by plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd to Report and Recommendation [64-1] (scj) (Entered: 01/29/2002)
73 ORDER by Judge David R. Herndon granting motion to extend time for objection to magistrate's report and recommendation [71-1], report and recommendation [64-1] resp due 1/25/02 (cc: all counsel) (dmw) (Entered: 01/30/2002)
74 REPLY TO PLAINTIFFS' OBJECTIONS by defendants' Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Marvin Powers, Kelly Rhodes, Rakesh Chandra, IL Dept of Corr to Report and Recommendation [64-1] (tjh) (Entered: 02/13/2002)
75 ORDER by Judge David R. Herndon neither adopting nor rejecting the report and recommendation by Magistrate Judge Proud [64-1] (cc: all counsel) (tjh) (Entered: 02/15/2002)
76 MOTION by plaintiffs to modify order of 2/15/02 (to amend) , and for leave to conduct limited discovery (dmw) (Entered: 02/28/2002)
77 RESPONSE by defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Marvin Powers, Kelly Rhodes, Rakesh Chandra, and IL Dept of Corr to motion to modify order of 2/15/02 (to amend) [76-1], motion for leave to conduct limited discovery [76-2] (scj) (Entered: 03/12/2002)
78 REPLY by plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd to response to motion to modify order of 2/15/02 (to amend) [76-1], motion for leave to conduct limited [76-2] (scj) (Entered: 03/12/2002)
79 MOTION by plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd to lift stay on discovery , and set a status conference (scj) (Entered:

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03/15/2002 03/18/2002 03/18/2002 03/18/2002 03/18/2002 03/21/2002 03/25/2002 03/27/2002
03/28/2002 04/01/2002 04/01/2002 04/22/2002 04/25/2002 04/26/2002 04/29/2002 04/30/2002

03/14/2002)
80 ORDER by Judge David R. Herndon denying motion to modify order of 2/15/02 (to amend) [76-1], denying motion for leave to conduct limited discovery [76-2] (cc: all counsel) (dlr) (Entered: 03/20/2002)
81 MEMORANDUM ON THE EFFECT REICKENBACKER V. FOSTER ON THE REHABILITATION ACT CLAIMS RAISED IN THIS CASE (NOTICE) by defendants (dlr) (Entered: 03/26/2002)
82 CERTIFICATE OF COMPLIANCE (NOTICE) by defendants (dlr) (Entered: 03/26/2002)
83 AFFIDAVIT of Dr. Kelly Rhodes (filed under seal) (dlr) (Entered: 03/26/2002)
84 (NOTICE) OF SUBMISSION CONCERNING THE REBAH ACT AND REICKENBACKER V. FOSTER by plaintiff class (scj) (Entered: 03/26/2002)
86 MOTION by plaintiff to file exhibits to previously filed motion (dlr) (Entered: 03/29/2002)
87 RESPONSE by plaintiff class Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd to Submission concerning Rehab Act and Reickenbacker v Foster [84-1] (scj) (Entered: 04/01/2002)
85 MEMORANDUM AND ORDER by Judge David R. Herndon adopting report and recommendation recommending that the motion to certify the plaintiff's class be denied, and that the named plaintiffs, Rasho, Fields, Nelson and Boyd, proceed with their joined individual claims [29-1] [64-1], denying motion to certify the plaintiff's class [29-1] (cc: all counsel) (dlr) (Entered: 03/27/2002)
88 RESPONSE by defendants to motion to lift stay on discovery [79-1] and set a status conference [79-2] (dmw) (Entered: 04/03/2002)
89 ORDER by Mag/Judge Clifford J. Proud denying motion to lift stay on discovery [79-1] and set a status conference [79-2] in all respects (cc: all counsel) (dmw) (Entered: 04/03/2002)
90 ORDER by Mag/Judge Clifford J. Proud granting motion to file exhibits to previously filed motion [86-1] (cc: all counsel) (dmw) (Entered: 04/03/2002)
91 MOTION by defendants for enlargement of time to file answer (dmw) (Entered: 04/24/2002)
92 ORDER by Mag/Judge Clifford J. Proud granting motion for enlargement of time to file answer [91-1]; up to and including brief ddl set 4/26/02 (cc: all counsel) (scj) (Entered: 05/01/2002)
93 MOTION by defendants Marvin Powers and Rakesh Chandra for enlargement of time to answer (dmw) (Entered: 05/01/2002)
94 ANSWER and affirmative defenses by defendant to [1-1] (dmw) (Entered: 05/01/2002)
95 MOTION by plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd for reconsideration of denial of certification of the plaintiff class (scj) (Entered: 05/02/2002)

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04/30/2002 05/03/2002 05/08/2002 05/09/2002 05/14/2002
05/22/2002 05/30/2002 05/31/2002 06/21/2002 06/21/2002 06/27/2002 07/11/2002
07/15/2002 07/16/2002 07/22/2002 07/25/2002

96 THIRD MOTION by defendants for enlargement of time to address plaintiff's discovery (dmw) (Entered: 05/02/2002)
97 ORDER by Mag/Judge Clifford J. Proud granting motion for enlargement of time to 5/9/02 to address plaintiff's discovery [96-1] (cc: all counsel) (dmw) (Entered: 05/07/2002)
98 MOTION by defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Marvin Powers, Kelly Rhodes, Rakesh Chandra, and IL Dept of Corr for protective order (scj) (Entered: 05/08/2002)
99 ORDER by Mag/Judge Clifford J. Proud denying motion for protective order [98-1] (cc: all counsel) (dmw) (Entered: 05/13/2002)
100 RESPONSE by defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Marvin Powers, Kelly Rhodes, Rakesh Chandra, IL Dept of Corr to motion for reconsideration of denial of certification of the plaintiff class [95-1] (scj) (Entered: 05/16/2002)
101 MOTION by plaintiffs to extend time for reply concerning motion for reconsideration of class certification (dmw) (Entered: 05/28/2002)
102 ORDER by Judge David R. Herndon granting motion to extend time to file reply brief [101-1], motion for reconsideration [95-1] reply brief due 5/30/02 (cc: all counsel) (dmw) (Entered: 06/04/2002)
103 MOTION by plaintiffs for leave to file reply brief instanter (dmw) (Entered: 06/04/2002)
104 ORDER by Judge David R. Herndon granting motion for leave to file reply brief instanter [103-1] (cc: all counsel) (dlr) (Entered: 06/27/2002)
105 REPLY by plaintiffs to response to motion for reconsideration of denial of certification of the plaintiff class [95-1] (dlr) (Entered: 06/27/2002)
106 SUPPLEMENTAL MOTION by defendants for entry of protective order (dmw) (Entered: 07/03/2002)
107 ORDER by Judge David R. Herndon setting hearing on motion for reconsideration of denial of certification of the plaintiff class [95-1]; hrg set for 9:30 AM on 8/29/02 before Judge David R. Herndon in the USDC/East St. Louis, IL (cc: all counsel) (dlr) (Entered: 07/11/2002)
108 ORDER by Mag/Judge Clifford J. Proud denying motion for entry of protective order [106-1]; see Order for specifics (cc: all counsel) (scj) (Entered: 07/19/2002)
109 RESPONSE by plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd to Supplemental Motion for Entry of Protective Order [106-1] (scj) (Entered: 07/19/2002)
110 MOTION by defendants to modify order (to amend) (dmw) (Entered: 07/25/2002)
111 UNOPPOSED MOTION by plaintiffs to reset hearing date (continue) (dlr) (Entered: 08/05/2002)

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08/06/2002
08/22/2002 09/09/2002 09/27/2002 10/01/2002
10/01/2002 10/01/2002 10/01/2002 10/01/2002 10/08/2002 10/11/2002 10/15/2002 10/28/2002
10/28/2002

112 MEMORANDUM AND ORDER by Judge David R. Herndon granting motion to reset hearing date (continue) [111-1], granting motion to modify order (to amend) [110-1], setting hearing on motion for reconsideration of denial of certification of the plaintiff class [95-1] ; hrg set for 10:00 AM on 10/1/02 before Judge David R. Herndon; hearing to be held at the courtroom at Tamms Corr Center (cc: all counsel) (dlr) (Entered: 08/09/2002)
113 MOTION by plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd for order with suggestions for procedure for reviewing mental health records of Tamms Inmates (scj) (Entered: 08/27/2002)
114 OBJECTIONS by defendant to suggestions for procedure on reviewing mental health records [113-1] (scj) (Entered: 09/10/2002)
115 MOTION by plaintiffs Ashoor Rasho, Faygie Fields, Brian Nelson, and Robert Boyd for protective order related to inspection and photographing at Tamms Corr Ctr (scj) (Entered: 10/02/2002)
116 MINUTES (pab) of hearing on motion to reconsider and motion for suggestions to review medical records before Judge David R. Herndon denying motion for order with suggestions for procedure for reviewing mental health records of Tamms Inmates [113-1], taking under advisement on the motion for reconsideration of denial of certification of the plaintiff class [95-1]; exhibit list attached ( C/R: Laura Blatz) (dlr) Modified on 10/09/2002 (Entered: 10/09/2002)
EXHIBIT/WITNESS list by plaintiffs (dlr) (Entered: 10/09/2002)
117 STIPULATION FOR DISMISSAL (dlr) (Entered: 10/09/2002)
118 ORDER OF DISMISSAL by Judge David R. Herndon dismissing parties Rakesh Chandra, Marvin Powers, Robert Boyd regarding stipulation for dismissal [117-1] (cc: all counsel) (dlr) (Entered: 10/09/2002)
130 EXHIBITS to motion for reconsideration [95] (exhibits 3 and 4 placed under seal) (dlr) Modified on 03/03/2003 (Entered: 03/03/2003)
TRANSCRIPT of 10/1/02 hearing; held 10/1/02; 1 volume(s) Court Reporter: Laura Blatz (dlr) (Entered: 03/03/2003)
119 POST HEARING SUBMISSION REGARDING CLASS CERTIFICATION (BRIEF) by plaintiffs (dlr) (Entered: 10/18/2002)
120 ORDER by Mag/Judge Clifford J. Proud finding the motion for protective order related to inspection and at Tamms Corr Ctr [115-1] denied as moot. (cc: all counsel) (scj) (Entered: 10/21/2002)
121 OBJECTIONS by defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Kelly Rhodes, IL Dept of Corr to plaintiffs' post-hearing submission on class certification [95-1], re motion to reconsider class certification [119-1] AND MOTION to strike plaintiffs' post-hearing submission (dmw) (Entered: 10/31/2002)
121 MOTION by defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Kelly Rhodes, IL Dept of Corr to strike plaintiffs' post-hearing submission (dmw) (Entered: 10/31/2002)

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12/19/2002 01/03/2003
01/08/2003
01/09/2003 01/10/2003
01/13/2003 01/15/2003 02/21/2003 02/28/2003
03/04/2003 03/10/2003 03/10/2003 03/17/2003 03/27/2003

122 MOTION by plaintiffs to compel production of certain documents , and for entry of protective order for certain other documents (dmw) (Entered: 12/23/2002)
123 MOTION by defendants Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Kelly Rhodes, and IL Dept of Corr by Shelton Frey to withdraw as counsel of record for defendants (scj) (Entered: 01/03/2003)
124 ORDER by Mag/Judge Clifford J. Proud granting motion by Shelton Frey to withdraw as counsel of record for defendants [123-1]; withdrawing attorney R. Shelton Frey for IL Dept of Corr, Kelly Rhodes, George Welborn, George E DeTella, Dennis Hopkins, Willard O Elyea, Donald N Snyder Jr (cc: all counsel) (dlr) (Entered: 01/10/2003)
125 MOTION by defendants for enlargement of time in which to respond to motion to compel (dlr) (Entered: 01/13/2003)
126 ORDER by Mag/Judge Clifford J. Proud granting in part and denying in part motion to compel production of certain documents [122-1], motion for entry of protective order for certain other documents [122-2]; see order for specifics (cc: all counsel) (dlr) (Entered: 01/14/2003)
127 ORDER by Mag/Judge Clifford J. Proud granting motion for enlargement of time in which to respond to motion to compel [125-1] up to and including 1/14/03 (cc: all counsel) (dlr) (Entered: 01/16/2003)
128 RESPONSE by defendants to motion to compel [122-1] (dmw) (Entered: 01/22/2003)
(Utility Event) - Terminating attorney Randall C. Stauffer for Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Kelly Rhodes, for IL Dept of Corr (tjh) (Entered: 02/21/2003)
129 MEMORANDUM & ORDER by Judge David R. Herndon denying motion to strike plaintiffs' post-hearing submission [121-1]; denying motion for reconsideration of denial of certification of the plaintiff class [95-1] (cc: all counsel) (tjh) (Entered: 02/28/2003)
VOLUME NUMBER 4 created, beginning with document number 114. (pab) (Entered: 03/04/2003)
131 NOTICE OF APPEAL on behalf of plaintiffs Robert Boyd, Brian Nelson, Faygie Fields, Ashoor Rasho; Filing fee pd $105.00, receipt # 300 87907 [129-1], [85-1] (cc: all counsel) (myz) (Entered: 03/10/2003)
SHORT RECORD transmitted to USCA-7 [131-1] (myz) Modified on 06/23/2003 (Entered: 03/10/2003)
NOTIFICATION by Circuit Court of Appellate Docket Number 03-1660 (dlr) (Entered: 03/17/2003)
132 MANDATE from Circuit Court, dismissing the appeal [131-1] USCA date of decision 3/21/03 ROA was not filed w/USCA-7 (scj) (Entered: 03/31/2003)

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05/30/2003 06/13/2003 06/20/2003 07/09/2003
10/09/2003 11/03/2003 11/03/2003 01/12/2004 01/15/2004 01/16/2004
01/20/2004 01/27/2004

133 NOTICE of hearing status conf set at 9:00 AM on 6/19/03 before Mag/Judge Clifford J. Proud in the USDC/East St. Louis, IL (cc: all counsel) (amv) (Entered: 05/30/2003)
134 NOTICE of hearing status conf reset at 2:00 PM on 7/9/03 before Mag/Judge Clifford J. Proud in the USDC/East St. Louis, IL (cc: all counsel) (amv) (Entered: 06/13/2003)
135 ATTORNEY APPEARANCE for defendants IL Dept of Corr, Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, and Kelly Rhodes by Terence Corrigan (scj) (Entered: 06/27/2003)
136 Minute Order Minutes of hearing on Status Conference before Mag/Judge Clifford J. Proud; Status conference held 7/9/03. Court reopens discovery and lifts stay. Plaintiff and Defendant will be given 50 interrogatories each. Telephone status conf set for 2:00 PM on 10/9/03 before Mag/Judge Clifford J. Proud in the USDC/East St. Louis, IL , Counsel for defendants shall initiate conference call (C/R: N/A) (cc: all counsel) (scj) (Entered: 07/18/2003)
137 MINUTES of hearing on Telephone Status Conference before Mag/Judge Clifford J. Proud ; telephone status conf set for 9:30 AM on 11/3/03 before Mag/Judge Clifford J. Proud ( C/R: N/A) (js) (Entered: 10/16/2003)
138 MINUTES OF TELEPHONE STATUS CONFERENCE (amv) before Mag/Judge Clifford J. Proud Status conference held 11/3/03 The Court will enter a Scheduling Order. ( C/R: n/a) (amv) (Entered: 11/03/2003)
139 ORDER by Mag/Judge Clifford J. Proud discovery ddl set 1/30/04; dispositive mtn ddl 2/27/04 Jury trial set for month of 7/04 before Judge David R. Herndon in the USDC/East St. Louis, IL (cc: all counsel) (amv) (Entered: 11/03/2003)
141 NOTICE of substitution of counsel by defendants Rakesh Chandra, George E DeTella, Willard O Elyea, Dennis Hopkins, Illinois Department of Corrections, Marvin Powers, Kelly Rhodes, Donald N Snyder Jr, George Welborn (myz ) (Entered: 01/18/2004)
140 MOTION by IL Dept of Corr, Donald N Snyder Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn, Kelly Rhodes for enlargement of time in which to respond to plaintiffs' discovery requests. (js) (Entered: 01/15/2004)
142 ORDER re [140] Motion for Enlargement of Time filed by George E DeTella, Dennis Hopkins, Illinois Department of Corrections, George Welborn, Kelly Rhodes, Donald N Snyder, Willard O Elyea, Granting [140] Motion for Enlargement of Time filed by George E DeTella, Dennis Hopkins, Illinois Department of Corrections, George Welborn, Kelly Rhodes, Donald N Snyder, Willard O Elyea.. Signed by Judge Clifford J. Proud on 1/16/04. (amv, ) (Entered: 01/19/2004)
143 MOTION to voluntarily Dismiss by Brian Nelson (filed pro se). Responses due by 2/19/2004 (myz, ) (Entered: 01/20/2004)
144 MOTION to Withdraw 143 MOTION to voluntarily Dismiss by Brian Nelson (pro se). (myz, ) (Entered: 01/27/2004)

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01/28/2004 01/30/2004 04/13/2004 04/14/2004 05/07/2004 05/14/2004 05/15/2004 05/15/2004
06/07/2004 06/08/2004
06/10/2004 06/11/2004 06/14/2004

145 ORDER withdrawing 143 Motion to Dismiss, granting 144 Motion to Withdraw. Signed by Judge David R Herndon on 1/28/04. (mlm) (Entered: 01/28/2004)
146 First MOTION for Extension of Time to Complete Discovery by Faygie Fields, Brian Nelson, Ashoor Rasho. (Snyder, Jean) (Entered: 01/30/2004)
147 ORDER Plaintiff's counsel shall file a status report by5/7/2004 regarding Rasho's status in this case. Signed by Judge Clifford J. Proud on 4/13/04. (amv, ) (Entered: 04/13/2004)
148 ORDER, Granting 146 First MOTION for Extension of Time to Complete Discovery filed by Brian Nelson, Faygie Fields, Ashoor Rasho. Discovery due by 4/30/2004. Dispostive Motions due by 5/15/2004. Signed by Judge Clifford J. Proud on 4/14/04. (amv, ) (Entered: 04/14/2004)
149 STATUS REPORT Regarding Plaintiff Rasho by Ashoor Rasho. (Snyder, Jean) (Entered: 05/07/2004)
150 STATUS REPORT Reply by George E DeTella, Willard O Elyea, Dennis Hopkins, Illinois Department of Corrections, Kelly Rhodes, Donald N Snyder Jr, George Welborn. (Corrigan, Terence) (Entered: 05/14/2004)
151 MOTION for Summary Judgment by George E DeTella, Willard O Elyea, Dennis Hopkins, Illinois Department of Corrections, Kelly Rhodes, Donald N Snyder Jr, George Welborn. Responses due by 6/14/2004 (Corrigan, Terence) (Entered: 05/15/2004)
152 MEMORANDUM in Support re 151 MOTION for Summary Judgment filed by George E DeTella, Willard O Elyea, Dennis Hopkins, Illinois Department of Corrections, Kelly Rhodes, Donald N Snyder Jr, George Welborn. (Attachments: # 1 Exhibit)(Corrigan, Terence) Exhibits A through G to Memorandum in Support of motion for summary judgment rec'd by Clerk's Office on 5/17/04 (Entered: 05/15/2004)
153 MOTION for Leave to File Defendants' Corrected Statement of Undisputed Facts by George E DeTella, Willard O Elyea, Dennis Hopkins, Illinois Department of Corrections, Kelly Rhodes, Donald N Snyder Jr, George Welborn. (Corrigan, Terence) (Entered: 06/07/2004)
154 ORDER Granting 153 MOTION for Leave to File Defendants' Corrected Statement of Undisputed Facts filed by George E DeTella, Dennis Hopkins, Illinois Department of Corrections, George Welborn, Kelly Rhodes, Donald N Snyder, Willard O Elyea. Statement due by 6/22/2004. Signed by Judge Clifford J. Proud on 6/8/04. (amv) (Entered: 06/09/2004)
155 ORDER 149 DISMISSING Plaintiff Ashoor Rasho's remaining claims without prejudice. Signed by Judge David R Herndon on 6/10/04. (mlm) (Entered: 06/10/2004)
156 First MOTION for Extension of Time to File Response/Reply by Faygie Fields, Brian Nelson. (Snyder, Jean) (Entered: 06/11/2004)
157 AMENDED DOCUMENT by George E DeTella, Willard O Elyea, Dennis Hopkins, Illinois Department of Corrections, Kelly Rhodes, Donald N Snyder Jr, George Welborn. Amended Statement of Undisputed Facts. (Corrigan, Terence)

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06/14/2004
06/28/2004 06/28/2004 07/12/2004 07/12/2004 07/12/2004 07/12/2004 07/13/2004 07/20/2004 07/22/2004 07/30/2004 08/02/2004

(Entered: 06/14/2004)
158 ORDER, Granting 156 First MOTION for Extension of Time to File response/Reply filed by Brian Nelson, Faygie Fields, to 151 MOTION for Summary Judgment filed by George E DeTella, Dennis Hopkins, Illinois Department of Corrections, George Welborn, Kelly Rhodes, Donald N Snyder, Willard O Elyea. Response due 6/28/04.Signed by Judge Clifford J. Proud on 6/14/04. (amv) (Entered: 06/14/2004)
159 Second MOTION for Extension of Time to File Response/Reply to Motion for Summary Judgment by Faygie Fields, Brian Nelson. (Snyder, Jean) (Entered: 06/28/2004)
160 ORDER granting 159 Motion for Extension of Time to File Response/Reply re 151 MOTION for Summary Judgment Responses due by 7/12/2004. Signed by Judge Clifford J. Proud on 6/28/04. (dlr ) (Entered: 06/30/2004)
161 DOCUMENT **STRICKEN** BY ORDER OF COURT. RESPONSE to 151 Motion for Summary Judgment filed by Faygie Fields, Brian Nelson. (Bowman, Locke) Additional attachment(s) added on 7/13/2004 (js, ). Modified on 7/13/2004 (js, ). (Entered: 07/12/2004)
162 MOTION for Leave to File Excess Pages by Faygie Fields, Brian Nelson. (Bowman, Locke) (Entered: 07/12/2004)
163 DOCKET ENTRY **STRICKEN** BY ORDER OF COURT. Exhibit List by Faygie Fields, Brian Nelson.. (Bowman, Locke) Additional attachment(s) added on 7/13/2004 (js, ). Modified on 7/13/2004 (js, ). (Entered: 07/12/2004)
164 DOCKET ENTRY **STRICKEN** BY ORDER OF COURT. NOTICE by Faygie Fields, Brian Nelson re 163 Exhibit List Notice of Manual Filing (Bowman, Locke) Additional attachment(s) added on 7/13/2004 (js, ). Modified on 7/13/2004 (js, ). (Entered: 07/12/2004)
165 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 164 Notice (Other) filed by Brian Nelson, Faygie Fields, 161 Response filed by Brian Nelson, Faygie Fields, 163 Exhibit List filed by Brian Nelson, Faygie Fields. See attached document for specifics (js, ) (Entered: 07/13/2004)
166 ORDER, Granting 162 MOTION for Leave to File Excess Pages filed by Brian Nelson, Faygie Fields. Signed by Judge Clifford J. Proud on 7/19/04. (amv) (Entered: 07/20/2004)
167 RESPONSE to Motion re 151 MOTION for Summary Judgment filed by Faygie Fields, Brian Nelson. (Attachments: # 1 Exhibit Index of Exhibits A RR)(Bowman, Locke) Documents rec'd in Clerk's Office 7/23/2004 (myz, ). (Entered: 07/22/2004)
168 MOTION for Extension of Time by George E DeTella, Willard O Elyea, Dennis Hopkins, Illinois Department of Corrections, Kelly Rhodes, Donald N Snyder Jr, George Welborn. (Corrigan, Terence) (Entered: 07/30/2004)
169 ORDER, Granting 168 MOTION for Extension of Time filed by George E DeTella, Dennis Hopkins, Illinois Department of Corrections, George Welborn, Kelly Rhodes, Donald N Snyder, Willard O Elyea, to file a reply to Plaintiff's

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08/19/2004 09/29/2004 11/01/2004 11/30/2004 01/19/2005 01/25/2005 02/07/2005
02/09/2005 02/15/2005
02/15/2005

response to 151 Defendants' MOTION for Summary Judgment filed by George E DeTella, Dennis Hopkins, Illinois Department of Corrections, George Welborn, Kelly Rhodes, Donald N Snyder, Willard O Elyea. Reply due by 8/19/2004. Signed by Judge Clifford J. Proud on 8/2/04. (amv) (Entered: 08/02/2004)
170 REPLY to Response to Motion re 151 MOTION for Summary Judgment filed by George E DeTella, Willard O Elyea, Dennis Hopkins, Illinois Department of Corrections, Kelly Rhodes, Donald N Snyder Jr, George Welborn. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Corrigan, Terence) (Entered: 08/19/2004)
171 NOTICE of Hearing: Final Pretrial Conference set for 12/10/2004 at 9:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (amv) (Entered: 09/29/2004)
172 Set/Reset Hearings: Final Pretrial Conference reset for 12/14/2004 at 9:30 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (amv) (Entered: 11/01/2004)
173 NOTICE of Hearing: Final Pretrial Conference set for 1/28/2005 at 9:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (amv) (Entered: 11/30/2004)
174 NOTICE of Hearing: Final Pretrial Conference RESET for 3/17/2005 09:30 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (dmw) (Entered: 01/19/2005)
175 REPORT AND RECOMMENDATION that 151 MOTION for Summary Judgment be granted in part and denied in part. Objections to R&R due by 2/8/2005. Signed by Judge Clifford J. Proud on 1/24/05. (Attachment: # 1 Objection Notice)(dmw) (Entered: 01/25/2005)
176 MOTION for Extension of Time in which to file objections to the report and recommendation by Magistrate Judge Proud by Kelly Rhodes, Illinois Department of Corrections, Donald N Snyder, Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn. (Corrigan, Terence) (Entered: 02/07/2005)
177 ORDER granting 176 Motion for Extension of Time. Defendants' objections to the Report and Recommendation 175 due 2/15/2005. Signed by Judge David R Herndon on 2/8/2005. (mlm) (Entered: 02/09/2005)
178 OBJECTION to 175 by Kelly Rhodes, Illinois Department of Corrections, Donald N Snyder, Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn to the Report and Recommendation of Magistrate Judge Proud. (Corrigan, Terence) Additional attachment(s) added on 2/16/2005 (myz ). Modified on 2/16/2005 (myz ). (Entered: 02/15/2005)
179 MEMORANDUM in Support re 175 REPORT AND RECOMMENDATIONS re 151 MOTION for Summary Judgment filed by George E DeTella,, Dennis Hopkins,, Illinois Department of Corrections,, George Welborn,, Kelly Rhodes,, Donald N Snyder, Jr, Willard O Elyea,. Objections filed by Kelly Rhodes, Illinois Department of Corrections, Donald N Snyder, Jr, Willard O Elyea, Dennis Hopkins, George E DeTella, George Welborn. (Corrigan, Terence) (Entered: 02/15/2005)

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02/16/2005 03/01/2005 03/03/2005 03/08/2005
03/08/2005 03/09/2005 03/24/2005 03/25/2005 04/08/2005 04/11/2005
05/10/2005 05/11/2005
05/26/2005

180 NOTICE OF ERRORS AND/OR DEFICIENCIES re 178 Objection filed by George E DeTella,, Dennis Hopkins,, Illinois Department of Corrections,, George Welborn,, Kelly Rhodes,, Donald N Snyder, Jr, Willard O Elyea,. See attached document for specifics (myz ) (Entered: 02/16/2005)
181 First MOTION for Extension of Time to File Response/Reply as to 178 Objection,, 179 Memorandum in Support of Motion, by Faygie Fields, Brian Nelson. (Snyder, Jean) (Entered: 03/01/2005)
182 ORDER granting 181 Plaintiffs' Motion to Extend Time to Respond to Defendants' Objection to the Report and Recommendation of Judge Proud. Responses due by 3/8/2005. Signed by Judge David R Herndon on 3/3/2005. (mlm) (Entered: 03/03/2005)
183 RESPONSE in Opposition re 175 REPORT AND RECOMMENDATIONS re 151 MOTION for Summary Judgment filed by George E DeTella,, Dennis Hopkins,, Illinois Department of Corrections,, George Welborn,, Kelly Rhodes,, Donald N Snyder, Jr, Willard O Elyea,. Response To Objections filed by Faygie Fields, Brian Nelson, Robert Boyd. (Snyder, Jean) (Entered: 03/08/2005)
184 First MOTION for Order to reset pretrial conference by Faygie Fields, Brian Nelson. (Snyder, Jean) (Entered: 03/08/2005)
185 ORDER granting 184 Plaintiffs' Motion to Reset the Date of the Final Pretrial Conference. The final pretrial conference scheduled for 3/17/2005 is cancelled. Signed by Judge David R Herndon on 3/9/2005. (mlm) (Entered: 03/09/2005)
186 ORDER granting in part and denying in part 151 Motion for Summary Judgment, adopting 175 Report and Recommendation. Signed by Judge David R Herndon on 3/24/2005. (mlm) (Entered: 03/24/2005)
187 NOTICE of Hearing: Final Pretrial Conference set for 4/22/2005 11:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (dmw) (Entered: 03/25/2005)
188 Second MOTION to Continue Final Pretrial Conference by Faygie Fields, Brian Nelson. (Snyder, Jean) (Entered: 04/08/2005)
189 ORDER, Granting 188 Second MOTION to Continue Final Pretrial Conference filed by Brian Nelson,, Faygie Fields,. Final Pretrial Conference reset for 5/13/2005 at 11:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. Signed by Judge Clifford J. Proud on 4/11/05. (amv) (Entered: 04/11/2005)
190 Third MOTION to Continue Final Pretrial Conference by Faygie Fields, Brian Nelson. (Snyder, Jean) (Entered: 05/10/2005)
191 ORDER Granting 190 Third MOTION to Continue Final Pretrial Conference filed by Brian Nelson,, Faygie Fields,. Final Pretrial Conference reset for 5/27/2005 10:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. The previous date of 5/13/05 is canceled. Signed by Judge Clifford J. Proud on 5/11/05. (amv) (Entered: 05/11/2005)
192 ORDER DISMISSING CASE with 60 days to reopen if settlement is not consummated. Signed by Judge David R Herndon on 5/25/05. (pab ) (Entered:

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CM/ECF - U.S. District Court:ilsd - Docket Report

https://ecf.ilsd.uscourts.gov/cgi-bin/DktRpt.pl?444525838538854-L_35...

09/28/2006

05/26/2005)
File Sent to FRC on 7/20/06: accession number 021-06-0081, box number 22 (partial) and box 23 (partial) of 139, location 300887-301025-SAN. (skp, ) (Entered: 09/28/2006)

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[CONTENT] January 7, 1999 | Illinois | 42 | the U.S. District Court | the Northern District | Illinois ||| Tamms | Illinois ||| Northwestern University School of Law's MacArthur Justice Center | the Edwin F. Mandel Legal Aid Clinic ||| February 25, 1999 | the Illinois Department of Corrections | IDOC ||| 1 | Eighth | 2 | 3 | the Fourteenth Amendment's | 4 | Americans | ADA | 42 | 12101 | 5 | the Rehabilitation Act | 29 | U.S.C. | 504 ||| February 25, 1999 ||| March 31, 1999 | Robert W. Gettleman | April 13, 1999 | the U.S. District Court | the Southern District | Illinois ||| Boyd | Snyder | 44 | N.D. Il | 1999 ||| June 6, 2000 | the Southern District | Illinois | Tamms Correctional Center |||  ||| the Prison Litigation Reform Act | 42 | ADA | Rehabilitation Act | Illinois | the Eleventh Amendment ||| U.S. | Clifford J. Proud | August 2, 2001 ||| Davis R. Herndon | September 18, 2001 ||| ADA ||| Magistrate | Proud | November 6, 2001 | Herndon | March 27, 2002 ||| Herndon | Tamms | 15 | Tamms |||  |||  ||| Tamms ||| February 28, 2003 | Herndon ||| Discovery | the months ||| October 1, 2002 | one | two |||  |||  ||| Tamms ||| June 10, 2004 |||  ||| only two | six | IDOC ||| Magistrate | Proud | January 24, 2005 | Herndon | March 24, 2005 ||| the Eighth Amendment | the Rehabilitation Act | IDOC | Tamms ||| May 25, 2005 |||  [SUMMARY] On January 7, 1999, Illinois state prisoners who had serious mental illnesses filed an action pursuant to 42 U.S.C. § 1983 in the U.S. District Court for the Northern District of Illinois.  These prisoners resided in a "super maximum" security correctional institution in Tamms, Illinois.  They were represented by private counsel and attorneys from Northwestern University School of Law's MacArthur Justice Center and from the Edwin F. Mandel Legal Aid Clinic. Counsel amended the complaint on February 25, 1999, to add and dismiss a few defendants, but all the defendants were officials operating facilities of the Illinois Department of Corrections (IDOC) and IDOC, itself.  Requesting class certification and injunctive relief, the plaintiffs alleged that the defendants (1) were deliberately indifferent to prisoners' mental health needs in violation of the Eighth and Fourteenth Amendments;  (2) provided, for mentally ill inmates, living conditions that violated those amendments;  (3) violated the state mental health code, which created a liberty or property interest under the Fourteenth Amendment's due process guarantee;  (4) violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and (5) violated the Rehabilitation Act, 29 U.S.C. § 504.  Also on February 25, 1999, the defense filed a motion to transfer venue.  On March 31, 1999, the defendants filed a motion to dismiss the amended complaint, but that motion had not been ruled upon when District Judge Robert W. Gettleman granted the motion to transfer venue on April 13, 1999, sending the case to the U.S. District Court for the Southern District of Illinois.  Boyd v. Snyder, 44 F.Supp.2d 966 (N.D. Il. 1999).  There, the plaintiffs, on June 6, 2000, dismissed their case without prejudice and filed a lengthy new complaint in the Southern District of Illinois, adding a defendant but making essentially the same individual and class-based claims on behalf of seriously mentally ill inmates housed or to be housed at Tamms Correctional Center.  Plaintiffs sought compensatory and punitive damages and injunctive and declaratory relief, suing the defendants in their individual and official capacities.

Some of the defendants filed motions to dismiss, alleging that plaintiffs had not exhausted administrative remedies as to the moving defendants, had failed to allege physical injuries as required by a provision of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), failed to sufficiently allege personal responsibility for certain alleged injuries or misconduct, failed to state claims upon which relief could be granted as to the ADA and Rehabilitation Act, had no due process rights under the Illinois mental health code,  and that the defendants were protected from the damages claims in their official capacity by reason of the Eleventh Amendment and also protected by qualified immunity from certain of plaintiffs' claims.  U.S. Magistrate Judge Clifford J. Proud considered the pretrial dismissal motions and issued his report and recommendation on August 2, 2001.  His recommendations were adopted in full by District Judge Davis R. Herndon in an unpublished order on September 18, 2001.  Accordingly, many of the plaintiffs' claims were dismissed, including the alleged ADA violation and the due process claim relying on the state's mental health code, and certain defendants were dismissed from the case or permitted to be proceeded against only in their individual, as opposed to official, capacity.

Plaintiffs' efforts to have their case certified as a class action were rejected by Magistrate Judge Proud's November 6, 2001, unpublished recommendation, which was adopted by District Judge Herndon on March 27, 2002.  The district judge's ruling rejected plaintiffs' objections to the magistrate's report, as Judge Herndon elected not to credit plaintiffs' expert statistical analysis about the likely number of seriously mentally ill prisoners at Tamms, instead choosing to rely on defense-submitted records indicating 15 such prisoners were housed at Tamms.  Such a number, said the judge in an unpublished opinion, was not so large as to warrant class action treatment.  The plaintiffs filed a motion asking the judge to reconsider this ruling.  The motion led to the judge conducting another hearing, touring the Tamms facility, and reviewing prisoners' mental health records.  In an unpublished order on February 28, 2003, Judge Herndon stood by his earlier ruling that denied class action status to the case, stating that the additional sources of information he had considered made him more sure that class action status was unwarranted.

Discovery proceedings and negotiations between the parties had occurred as the months went by.  On October 1, 2002, in a pleading referencing a stipulation, one plaintiff dismissed, with prejudice, his allegations against all defendants and the remaining plaintiffs dismissed, with prejudice, their allegations against two particular defendants.  We do not have a copy of the stipulation nor otherwise know of its' terms.  At various times, the parties and the court addressed the need for protective orders concerning discovery items, such as videotapes of extraction teams removing prisoners from cells or policy statements regarding prisoner transfers, trying to address concerns the court regarded as legitimate that unlimited disclosure of such materials would enable prisoners' plots to thwart security efforts or to manufacture reasons for transfer.  Other developments in the case included the plaintiffs' unopposed motion to dismiss, on mootness grounds, a plaintiff who no longer resided in the Tamms facility. The motion was granted by the court on June 10, 2004.

Eventually, the defendants filed motions for summary judgment.  By the time the motions were ruled upon, only two plaintiffs and six defendants, together with IDOC, remained as parties and the claim for damages was no longer being pressed.  Adopting and expanding upon Magistrate Judge Proud's January 24, 2005, unpublished recommendation that the motion for summary judgment be granted in part and denied in part, Judge Herndon's March 24, 2005, unpublished order overruled defense objections that their motion should have been granted in its entirety. According to the court, genuine issues of material fact remained and warranted trial as to some defendants on the Eighth Amendment deliberate indifference claim and the alleged violation of the Rehabilitation Act;  however, the IDOC high-level officials and the Tamms warden were dismissed from the case, as the plaintiffs had shown no evidence that these defendants were deliberately indifferent or otherwise at fault in relying on diagnoses by IDOC psychiatrists or psychologists.  

No trial occurred, however, because the remaining parties settled the case, resulting in its dismissal on May 25, 2005.  We have no details of the settlement's terms, nor any information indicating further action occurring in the case.