1:18-cv-01101-SEM-TSH # 28 Page 1 of 15

E-FILED
Monday, 06 August, 2018 11:28:34 AM Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION

KELLI ANDREWS, as

)

Administrator of the Estate of )

Tiffany Ann Rusher, deceased, )

)

Plaintiff,

)

)

v.

)

)

BRUCE RAUNER, THE STATE OF )

ILLINOIS, JOHN R. BALDWIN,

)

JEFF SIM, HE YUAN, BRIAN

)

RICHARDSON, THE ILLINOIS

)

DEPARTMENT OF CORRECTIONS, )

and WEXFORD HEALTH

)

SOURCES, INC.,

)

)

Defendants.

)

No. 3:18-cv-1101

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion to Dismiss

Counts II and III of Plaintiff’s Complaint (d/e 15) filed by

Defendants John R. Baldwin, Bruce Rauner, Illinois Department of

Corrections, and State of Illinois. Because Plaintiff has alleged

plausible claims under the Americans with Disabilities Act and the

Rehabilitation Act of 1973, the Motion to Dismiss is DENIED.

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I. JURISDICTION This Court has subject matter jurisdiction because Plaintiff’s causes of action are brought under the Eighth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983; the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA); and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. See 28 U.S.C. ' 1331 (AThe district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States@). Venue is proper because a substantial part of the events or omissions giving rise to Plaintiff=s claims occurred in this district. 28 U.S.C. ' 1391(b)(2).
II. LEGAL STANDARD A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). To state a claim for relief, a plaintiff need only provide a short and plain statement of the claim showing she is entitled to relief and giving the defendants fair notice of the claims. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). When considering a motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light most favorable to the
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plaintiff, accepting all well-pleaded allegations as true and construing all reasonable inferences in her favor. Id. However, the complaint must set forth facts that plausibly demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plausible claim is one that alleges factual content from which the Court can reasonably infer that the defendants are liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely reciting the elements of a cause of action or supporting claims with conclusory statements is insufficient to state a cause of action. Id.
III FACTS ALLEGED IN THE COMPLAINT The complaint contains the following allegations, which the Court accepts as true for purposes of the motion to dismiss. Tamayo, 526 F.3d at 1081. Plaintiff, Kelli Andrews, is the administrator of the estate of her daughter, Tiffany Rusher. Rusher was confined at the Logan Correctional Center from March 2013 until May 2016. The defendants are Bruce Rauner, the Governor of Illinois; John R. Baldwin, the acting director of the Illinois Department of Corrections (IDOC); Jeff Sim, the Central Regional Psychologist
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Supervisor of IDOC; the State of Illinois; Wexford Health Services, Inc.; Dr. He Yuan, the Chief Psychiatrist at Logan Correctional Center; and Brian Richardson, a mental health professional at the Logan Correctional Center.
Sometime in 2013, Rusher was placed in solitary confinement as the result of a disciplinary infraction. Rusher’s mental health deteriorated. Plaintiff alleges, on information and belief, that Rusher had not previously been diagnosed with a mental illness.
Between October 2013 and May 2015, Rusher made several attempts to hurt herself, including attempts to strangle herself and swallowing items like batteries and pens. During this time, Rusher cycled between the prison’s general population and stints in solitary confinement as punishment for the acts of self-harm.
In May 2014, prison staff diagnosed Rusher with a bipolar-I’ve type shizoaffective disorder, a borderline personality disorder, and post-traumatic stress disorder. Prison staff determined that Rusher was at a continued risk of harming herself. The medical professionals noted the importance of “out of cell time” to engage in activities like socializing and writing. Rusher was provided with therapy and group activities to address her mental illness.
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However, Rusher was placed in solitary confinement when she tried to hurt herself. Her placement in solitary confinement undermined the limited mental health care she had been receiving.
In September 2015, after another suicide attempt, Logan medical staff ordered Rusher be placed on “constant watch” in a “crisis cell” within the Logan’s Medical Housing Unit. Rusher was stripped naked and only permitted an anti-suicide smock. All of her personal property was taken away. A guard was stationed outside Rusher’s cell 24 hours a day.
Plaintiff alleges that, while short periods of constant watch are medically acceptable, extended constant watch is strictly forbidden. Plaintiff alleges that, instead of trying to secure Rusher effective mental health treatment—such as transferring Rusher to the custody of the Illinois Department of Human Services or transferring Rusher out of Logan for inpatient mental health treatment—defendants chose to keep Rusher in isolation. Plaintiff alleges that prisoners suffering from physical illness are transferred outside of IDOC for medical care.
Shortly after placing Rusher in a crisis cell, Logan medical staff identified Rusher as one of only a few dozen patients within
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IDOC whose mental condition was so acute and dangerous that she required full inpatient level mental health care. Instead of securing effective mental health care for Rusher, defendants kept her in isolation. A staff member went to Rusher’s cell once a day and asked her rote questions through the cell door. Rusher was also interviewed once a week for 30 minutes by a psychiatrist for purposes of adjusting the levels of her various medications. Eventually, in response to pressure from the Rasho v. Baldwin, 07cv-1298 (C.D. Ill.)(Mihm, J.) class action lawsuit, Rusher would occasionally be allowed to leave the crisis cell for 30-minute group therapy sessions, which occurred no more than once per week. Prison staff treated the therapy sessions as a privilege, rather than health care, and would cancel the sessions as punishment if Rusher tried to harm herself. Rusher made repeated attempts to harm herself.
Plaintiff alleges that the defendants knew that allowing Rusher to be placed in solitary in a crisis cell for a meaningful length of time would be toxic to her mental health. Plaintiff further alleges that defendants had the ability to secure appropriate treatment for Rusher but failed to do so.
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In May 2016, Rusher’s term of incarceration ended. The defendants, knowing the damage they inflicted on Rusher, took steps to have Rusher involuntarily committed to a state psychiatrist hospital. Rusher did not oppose the petition and her admission became “voluntary” under state law. Rusher was transferred from the Logan crisis cell to the McFarland mental health hospital operated by the Illinois Department of Human Services.
At McFarland, Rusher was placed in a group setting and received intensive psychological and psychiatric care. As a result, her mental health condition improved.1
In Count I, not at issue in the Motion to Dismiss, Plaintiff alleges that defendants Rauner, Baldwin, Sim, Yuan, Richardson, and Wexford were deliberately indifferent to Rusher’s medical needs. In Counts II and III, Plaintiff alleges that Rauner and Baldwin, in their official capacities, IDOC, and the State of Illinois
1 Although not alleged in this Complaint, the Court takes judicial notice of the complaint filed by Plaintiff in Andrews v. Sangamon County, Central District of Illinois, Springfield Division, Case No. 18-1100, relating to Rusher’s detention at the Sangamon County Jail. See Olson v. Champaign Cnty., Ill., 784 F.3d 1093, 1096 n.1 (7th Cir. 2015) (a court may take judicial notice of documents in the public record when ruling on a motion to dismiss under Rule 12(b)(6)). That complaint alleges that Rusher was accused of battery while a patient at McFarland, arrested, and taken to the Sangamon County Jail. While there, Rusher committed suicide and died on March 30, 2017.
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(the State Defendants) violated the ADA and the Rehabilitation Act by failing to accommodate Rusher’s disability.
For the ADA and Rehabilitation Act claims, Plaintiff alleges that the State Defendants failed to provide a reasonable accommodation for Rusher’s mental illness and discriminated against her for her mental illness. Specifically, Plaintiff alleges that Rusher suffered from a mental impairment that substantially limited one or more major life activities, including, but not limited to thinking, interacting with others, and controlling her behavior. As a result of Rusher’s mental disabilities, she required inpatient psychiatric therapy.
Plaintiff alleges that the State Defendants failed to reasonably accommodate Rusher’s disability by failing to provide her access to inpatient intensive psychiatric treatment. Due to this failure, the State Defendants deprived Rusher of access to services, programs, and activities, including education, programming, recreation, exercise, human interaction, and mental health treatment and services. In addition, the State Defendants allow prisoners with physical injuries or illness to receive outside hospitalization but failed to do so for Rusher because of her mental disability. As a
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result of the State Defendants’ failures, Rusher suffered extreme mental pain and anguish and physical harm.
Plaintiff seeks compensatory, punitive, and nominal damages. She also seeks costs and attorney’s fees.
IV. ANALYSIS The State Defendants move to dismiss Counts II and III on two grounds. The State Defendants assert that: (1) allegations of inadequate treatment for mental health conditions do not give rise to a viable claim under the ADA or the Rehabilitation Act; and (2) “access to human contact” is not a program or service under the ADA or Rehabilitation Act. The State Defendants also move to dismiss Plaintiff’s request for punitive damages under the ADA and Rehabilitation Act. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to state prisons. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).
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The Rehabilitation Act similarly provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . . “ 29 U.S.C. § 794(a). The State Defendants do not dispute that state prisons receive federal funds. Mem. at 4-5 (d/e 16).
Other than some minor differences not relevant here, the ADA and the Rehabilitation Act are coextensive. CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014); see also Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 846 n.6 (7th Cir. 1999) (noting that the chief differences between the ADA and the Rehabilitation Act are that the Rehabilitation Act only applies to entities that receive federal funding and requires that the exclusion be solely by reason of disability). Moreover, “precedent under one statute typically applies to the other.” Washington, 181 F.3d at 846 n.6.
The parties treat the ADA and the Rehabilitation Act claims together. To state a claim under the ADA and the Rehabilitation Act, Plaintiff must allege that (1) Rusher is a qualified person with a
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disability, (2) the State Defendants excluded Rusher from participating in or denied her the benefits of a public entity’s services, programs, or activities or otherwise discriminated against her; and (3) the exclusion, denial, or discrimination was by reason of or because of her disability. See Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (identifying separately the elements for a Title II and Rehabilitation Act claim but describing the elements as “functionally identical”); Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 672 (7th Cir. 2012).2 A refusal to reasonably accommodate a disability is “tantamount to denying access.” Jaros, 694 F.3d at 671 (also noting that the Supreme Court has found a duty to accommodate in the Rehabilitation Act).
2 In Jaros, the Seventh Circuit “dispense[d] with the ADA and the thorny question of sovereign immunity” and just considered the claim under the Rehabilitation Act because the plaintiff could only have one recovery. Jaros, 684 F.3d at 672. The “thorny question of sovereign immunity” alludes to fact that Title II of the ADA abrogates state sovereign immunity only for conduct that actually violates the Constitution. United States v. Georgia, 546 U.S. 151, 159 (2006); see, e.g., Cunningham v. Falmier, No. 17-cv-126-SMY, 2017 WL 1212067, at *4 (S.D. Ill. Apr. 3, 2017) (because the denial of telephone privileges did not independently violate the Constitution, the plaintiff could not pursue a claim for damages against the state under the ADA). Sovereign immunity does not bar a Rehabilitation Act claim because Illinois waived its immunity from suits for damages under the Rehabilitation Act as a condition of receiving federal funds. Jaros, 684 F.3d at 672 n.5.
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The State Defendants first argue that Plaintiff cannot bring a claim for inadequate mental health treatment under the ADA and the Rehabilitation Act. The State Defendants assert that, because Plaintiff alleged that Rusher received group therapy, met with psychiatrists on a weekly basis, and received medication, Plaintiff’s claim is nothing more than a disagreement with Rusher’s course of mental health treatment.
The cases cited by the State Defendants involved complaints that only alleged inadequate medical treatment and did not allege discrimination or a failure to make a reasonable accommodation. For example, in Bryant v. Madigan, the Seventh Circuit held that that ADA is not violated by a prison failing to attend to the needs of its disabled prisoners. Bryant, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy for medical malpractice.”). The Seventh Circuit noted that the plaintiff did not allege that he was excluded from some service, program, or activity but only complained about incompetent treatment for his paraplegia. Id.
Similarly, in In re Estate of Crandall v. Godinez, No. 14-cv1401, 2015 WL 1539017 (C.D. Ill. Mar. 31, 2015), the court held that the plaintiff had not pleaded an ADA claim because he only
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challenged the adequacy of the medical services the decedent

received. The plaintiff did not allege that the decedent was subject

to discrimination or failed to receive services that other inmates

received. Id. at *6. The court drew a distinction between a claim

that a prisoner was not properly treated for his mental illness—

which did not state a claim under the ADA—and a claim that the

prisoner was denied access to medical services—which would state

a claim. In addition, the court found that the plaintiff had not

alleged that the decedent was placed in segregation because of his

disability or for reasons related to his disability and instead alleged

that the defendant had a legitimate, not-discriminatory reason for

the placement. Id. at 7 (noting the complaint alleged the decedent

was placed in segregation because of an investigation regarding

theft of another prisoner’s funds). Id.; see also Corbin v. Indiana,

No. 3:16CV602-PPS/MGG, 2018 WL 1920711, at *4 (N.D. Ind. Apr.

23, 2018) (finding the plaintiff stated a claim where he alleged he

was placed in segregated housing because of his disability, that he

was denied a service covered by the ADA and Rehabilitation Act due

to that segregation, and that the States’ conduct was intentional,

willful, and wanton).

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In this case, Plaintiff alleges that the State Defendants discriminated against Rusher by denying her access to hospitalization outside of the prison but allowed prisoners with physical injuries or illnesses to receive outside hospitalization. Compl. ¶¶ 25(c), 52, 53, 61. Plaintiff also alleges that the State Defendants placed her in solitary confinement because of her mental disability, which removed her from access to services, programs, and activities. Id. ¶¶ 54, 55, 64. This is sufficient to state a claim under the ADA and the Rehabilitation Act.
The State Defendants also move to dismiss Counts II and III on the ground that “access to human interaction” is not a service, program, or activity under the ADA or Rehabilitation Act. The Court will not dismiss Counts II and III on this ground. Plaintiff alleges that Rusher was denied a long list of activities, programs, and services, including education, programming, recreation, exercise, and mental health treatment and services. Therefore, Counts II and III state a claim even if access to human interaction is not an activity, program, or service—an issue the Court need not decide at this time.
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Finally, the State Defendants assert that Plaintiff is not

entitled to punitive damages under the ADA or the Rehabilitation

Act. Plaintiff asserts that she does not seek punitive damages

under the ADA and Rehabilitation Act and, therefore, this portion of

the State Defendants’ motion is moot. In light of Plaintiff’s

clarification that she does not seek punitive damages under the

ADA and the Rehabilitation Act, the Court denies this portion of the

motion as moot.

V. CONCLUSION

For the reasons stated, the Motion to Dismiss Counts II and III

of Plaintiff’s Complaint (d/e 15) filed by Defendants John R.

Baldwin, Bruce Rauner, Illinois Department of Corrections, and

State of Illinois is DENIED. These defendants shall file an amended

answer on or before August 20, 2018.

ENTERED: August 3, 2018

FOR THE COURT:

s/Sue E. Myerscough SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

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 Case: 1:18-cv-1101 As of: 01/08/2019 11:06 AM CST 1 of 7
REFER,RULE 16 CONFERENCE HELD,TRANSF
U.S. District Court CENTRAL DISTRICT OF ILLINOIS (Peoria) CIVIL DOCKET FOR CASE #: 1:18−cv−01101−SEM−TSH

Andrews v. Rauner et al Assigned to: Judge Sue E. Myerscough Referred to: Magistrate Judge Tom Schanzle−Haskins Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 03/11/2018 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Kelli Andrews as Administrator of the Estate of Tiffany Ann Rusher, deceased

represented by Alexis G Chardon WEIL & CHARDON LLC 333 S. Wabash Ave. Suite 2700 Chicago, IL 60604 312−585−7404 Fax: 312−995−7102 Email: ali@weilchardon.com ATTORNEY TO BE NOTICED

Elizabeth N Mazur UPTOWN PEOPLE'S LAW CENTER 4413 N. Sheridan Chicago, IL 60640 773−769−1411 Fax: 773−769−2224 Email: liz@uplcchicago.org ATTORNEY TO BE NOTICED

Emmanuel Andre NORTHSIDE TRANSFORMATIVE LAW CENTER 1543 W. Morse Ave. Chicago, IL 60626 312−219−6544 Fax: 312−754−9262 ATTORNEY TO BE NOTICED

Nicole Rae Schult UPTOWN PEOPLE'S LAW CENTER 4413 North Sheridan Chicago, IL 60640 773−769−1411 Fax: 773−769−2224 Email: nicole@uplcchicago.org ATTORNEY TO BE NOTICED

Stephen H Weil WEIL & CHARDON LLC 333 S. Wabash Ave. Suite 2700 Chicago, IL 60604 312−585−7404 Fax: 312−995−7102 Email: steve@weilchardon.com ATTORNEY TO BE NOTICED

Alan Mills UPTOWN PEOPLE'S LAW CENTER 4413 North Sheridan Chicago, IL 60640 (773) 769−1411

Case: 1:18-cv-1101 As of: 01/08/2019 11:06 AM CST 2 of 7
Fax: 773−769−2224 Email: alan@uplcchicago.org ATTORNEY TO BE NOTICED

V. Defendant Bruce Rauner
Defendant State of Illinois Defendant John R Baldwin
Defendant Jeff Sim

represented by Jeremy C Tyrrell OFFICE OF THE ATTORNEY GENERAL 500 South Second Street Springfield, IL 62706 217−785−4555 Fax: 217−782−8767 Email: jtyrrell@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremy C Tyrrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremy C Tyrrell (See above for address) ATTORNEY TO BE NOTICED
Joseph E Okon OFFICE OF THE ATTORNEY GENERAL 500 South Second Street Springfield, IL 62706 217−557−7081 Fax: 217−524−5091 Email: jokon@atg.state.il.us TERMINATED: 04/20/2018 ATTORNEY TO BE NOTICED
Mary Kaitlyn Clark−Joseph OFFICE OF THE ATTORNEY GENERAL 500 South Second Street Springfield, IL 62706 217−782−9014 Fax: 217−782−8767 Email: mkclarkjoseph@atg.state.il.us TERMINATED: 04/20/2018 ATTORNEY TO BE NOTICED
represented by Jeremy C Tyrrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kaitlyn Clark−Joseph (See above for address) TERMINATED: 04/20/2018 ATTORNEY TO BE NOTICED

Case: 1:18-cv-1101 As of: 01/08/2019 11:06 AM CST 3 of 7

Defendant He Yuan, M.D.
Defendant Brian Richardson
Defendant Illinois Department of Corrections
Defendant Wexford Health Sources Inc.

represented by Karen L McNaught CASSIDAY SCHADE LLP Suite 200 111 North 6th Street Springfield, IL 62701 217−572−1714 Fax: 217−572−1613 Email: kmcnaught@cassiday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karen L McNaught CASSIDAY SCHADE LLP 111 North 6th Street 2nd Floor Springfield, IL 62701 217−572−1714 Fax: 217−572−1613 Email: kmcnaught@cassiday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Brewster Chosid WIEDNER & MCAULIFFE, LTD. 8000 Maryland Avenue Suite 550 St. Louis, MO 63105 314−721−3400 Fax: 314−241−7604 Email: abchosid@wmlaw.com ATTORNEY TO BE NOTICED
Charles Zachary Vaughn WIEDNER & MCAULIFFE, LTD. 8000 Maryland Avenue Suite 550 St. Louis, MO 63105 312−855−1105 Email: czvaughn@wmlaw.com ATTORNEY TO BE NOTICED
represented by Jeremy C Tyrrell (See above for address) ATTORNEY TO BE NOTICED
Joseph E Okon (See above for address) TERMINATED: 04/20/2018 ATTORNEY TO BE NOTICED
Mary Kaitlyn Clark−Joseph (See above for address) TERMINATED: 04/20/2018 ATTORNEY TO BE NOTICED
represented by Karen L McNaught (See above for address) LEAD ATTORNEY

Case: 1:18-cv-1101 As of: 01/08/2019 11:06 AM CST 4 of 7 ATTORNEY TO BE NOTICED

Date Filed 03/11/2018 03/11/2018 03/12/2018 03/12/2018
03/12/2018 03/22/2018 03/26/2018 04/17/2018 04/17/2018 04/17/2018 04/18/2018
04/19/2018
04/19/2018 04/19/2018 04/20/2018 05/21/2018

# Docket Text
1 COMPLAINT against All Plaintiffs (Filing fee $ 400.), filed by Kelli Andrews. (Attachments: # 1 Civil Cover Sheet)(Mills, Alan) (Attachment 1 replaced on 3/12/2018) (RK, ilcd). (Entered: 03/11/2018)
2 NOTICE of Appearance of Attorney by Nicole Rae Schult on behalf of All Plaintiffs (Schult, Nicole) (Entered: 03/11/2018)
Filing fee: $ 400.00, receipt number 14626031532 (RK, ilcd) (Entered: 03/12/2018)
TEXT ORDER: The Plaintiff has filed a Complaint in this case and it appears the Complaint should have been filed in the Springfield Division of the United States District Court for the Central District of Illinois. The events forming the basis of the Complaint are alleged to have taken place at Logan Correctional Center which is in Logan County within the Springfield Division. Accordingly, the Clerk is directed to transfer this case to the Springfield Division. See Local Rule 40.1 ("All complaints and subsequent filings in cases which arise from the following counties:... Logan... will be filed at SPRINGFIELD, ILLINOIS"). Entered by Magistrate Judge Jonathan E. Hawley on 3/12/2018. (KZ, ilcd) (Entered: 03/12/2018)
Judge Sue E. Myerscough and Magistrate Judge Tom Schanzle−Haskins added. Magistrate Judge Jonathan E. Hawley and Judge Joe Billy McDade no longer assigned to case. (RK, ilcd) (Entered: 03/12/2018)
3 NOTICE of Appearance of Attorney by Stephen H Weil on behalf of Kelli Andrews (Weil, Stephen) (Entered: 03/22/2018)
4 NOTICE of Appearance of Attorney by Alexis G Chardon on behalf of Kelli Andrews (Chardon, Alexis) (Entered: 03/26/2018)
5 STRICKEN NOTICE of Appearance of Attorney by Joseph E Okon on behalf of John R Baldwin, Illinois Department of Corrections (Okon, Joseph) Stricken on 4/18/2018 per text order entered on 4/18/2018 (SKN, ilcd). (Entered: 04/17/2018)
6 MOTION to Strike 5 Notice of Appearance of Attorney by Defendants John R Baldwin, Illinois Department of Corrections. Responses due by 5/1/2018 (Tyrrell, Jeremy) (Entered: 04/17/2018)
7 NOTICE of Appearance of Attorney by Jeremy C Tyrrell on behalf of John R Baldwin, Illinois Department of Corrections (Tyrrell, Jeremy) (Entered: 04/17/2018)
TEXT ORDER: Defendant John R. Baldwin and Illinois Department of Corrections' Motion to Strike 6 is GRANTED. The Clerk is DIRECTED to strike the Notice of Appearance of Attorney filed at docket entry 5 . Entered by Judge Sue E. Myerscough on 04/18/2018. (SKN, ilcd) (Entered: 04/18/2018)
8 STRICKEN NOTICE of Appearance of Attorney by Mary Kaitlyn Clark−Joseph on behalf of John R Baldwin, Illinois Department of Corrections, Jeff Sim (Clark−Joseph, Mary) STICKEN on 4/20/2018 per text order entered on 4/20/2018 (SKN, ilcd). (Entered: 04/19/2018)
9 NOTICE of Appearance of Attorney by Jeremy C Tyrrell on behalf of Jeff Sim (Tyrrell, Jeremy) (Entered: 04/19/2018)
10 MOTION to Strike 8 Notice of Appearance of Attorney by Defendants John R Baldwin, Illinois Department of Corrections, Jeff Sim. Responses due by 5/3/2018 (Tyrrell, Jeremy) (Entered: 04/19/2018)
TEXT ORDER by U.S. Magistrate Judge Tom Schanzle−Haskins: Defendants' Motion to Strike Document 8 10 is ALLOWED. The Clerk is directed to strike the Notice of Appearance filed at docket entry 8. (LB, ilcd) (Entered: 04/20/2018)
11 NOTICE of Appearance of Attorney by Jeremy C Tyrrell on behalf of Bruce Rauner, State of Illinois (Tyrrell, Jeremy) (Entered: 05/21/2018)

Case: 1:18-cv-1101 As of: 01/08/2019 11:06 AM CST 5 of 7

05/21/2018 05/21/2018 05/21/2018 05/22/2018
06/04/2018
06/04/2018
06/04/2018 06/05/2018 06/12/2018 06/12/2018 06/14/2018
06/18/2018 06/21/2018 06/22/2018
06/26/2018 07/03/2018 07/11/2018

12 NOTICE of Appearance of Attorney by Karen L McNaught on behalf of Brian Richardson, Wexford Health Sources Inc. (McNaught, Karen) (Entered: 05/21/2018)
13 ANSWER to 1 Complaint AND AFFIRMATIVE DEFENSES by Brian Richardson, Wexford Health Sources Inc..(McNaught, Karen) (Entered: 05/21/2018)
14 MOTION for Extension of Time to File Answer re 1 Complaint by Defendants John R Baldwin, Illinois Department of Corrections, Bruce Rauner, Jeff Sim, State of Illinois. Responses due by 6/4/2018 (Tyrrell, Jeremy) (Entered: 05/21/2018)
TEXT ORDER by U.S. Magistrate Judge Tom Schanzle−Haskins. Defendants' Unopposed Motion for Extension of Time to File Responsive Pleadings 14 is ALLOWED. Extension granted to 6/4/2018 for Defendants John R Baldwin, Illinois Department of Corrections, Bruce Rauner, Jeff Sims, and State of Illinois to answer or otherwise plead. (LB, ilcd) (Entered: 05/22/2018)
15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Counts II and III of Plaintiff's Complaint by Defendants John R Baldwin, Illinois Department of Corrections, Bruce Rauner, State of Illinois. Responses due by 6/18/2018 (Tyrrell, Jeremy) (Entered: 06/04/2018)
16 MEMORANDUM in Support re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Counts II and III of Plaintiff's Complaint filed by Defendants John R Baldwin, Illinois Department of Corrections, Bruce Rauner, State of Illinois. (Tyrrell, Jeremy) (Entered: 06/04/2018)
17 ANSWER to 1 Complaint AND AFFIRMATIVE DEFENSES by John R Baldwin, Bruce Rauner, Jeff Sim.(Tyrrell, Jeremy) (Entered: 06/04/2018)
18 ORDER CONCERNING CONSENT TO MAGISTRATE JUDGE IN CASES INVOLVING INITIAL DISPOSITIVE MOTION entered by U.S. Magistrate Judge Tom Schanzle−Haskins on 6/5/2018. (LB, ilcd) (Entered: 06/05/2018)
19 NOTICE of Appearance of Attorney by Charles Zachary Vaughn on behalf of Brian Richardson (Vaughn, Charles) (Entered: 06/12/2018)
20 NOTICE of Appearance of Attorney by Alexander Brewster Chosid on behalf of Brian Richardson (Chosid, Alexander) (Entered: 06/12/2018)
TEXT ORDER by U.S. Magistrate Judge Tom Schanzle−Haskins. The Court notes the Complaint in this case was filed in the Central District of Illinois on 3/11/2018 and that the court file does not reflect proper service upon Defendant He Yuan, M.D. Federal Rule of Civil Procedure 4(m) directs that a Plaintiff must serve a Defendant within 90 days of filing of the Complaint. Plaintiff is directed to file a status report by 6/21/2018 and show cause why the case should not be dismissed without prejudice for want of prosecution as to Defendant He Yuan, M.D. (LB, ilcd) (Entered: 06/14/2018)
21 MEMORANDUM in Opposition re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Counts II and III of Plaintiff's Complaint filed by Plaintiff Kelli Andrews. (Chardon, Alexis) (Entered: 06/18/2018)
22 STATUS REPORT by Kelli Andrews. (Chardon, Alexis) (Entered: 06/21/2018)
TEXT ORDER by U.S. Magistrate Judge Tom Schanzle−Haskins. Before the Court is Plaintiff's Status Report 22 as to completion of service of process on Defendant He Yuan, M.D. Plaintiff's request is ALLOWED. For reasons as set forth in Plaintiff's report, Plaintiff is granted an extension to 8/8/2018 to effect service on Defendant Yuan. (LB, ilcd) (Entered: 06/22/2018)
23 NOTICE of Appearance of Attorney by Elizabeth N Mazur on behalf of All Plaintiffs (Mazur, Elizabeth) (Entered: 06/26/2018)
24 MOTION for Protective Order by Defendant Brian Richardson. Responses due by 7/17/2018 (Vaughn, Charles) (Entered: 07/03/2018)
TEXT ORDER by U.S. Magistrate Judge Tom Schanzle−Haskins. Motion for HIPAA Qualified Protective Order 24 ALLOWED. Written order to follow. (LB, ilcd) (Entered: 07/11/2018)

Case: 1:18-cv-1101 As of: 01/08/2019 11:06 AM CST 6 of 7

07/11/2018 07/16/2018 08/02/2018 08/06/2018
08/20/2018 08/28/2018 08/28/2018 08/28/2018
10/01/2018 10/03/2018

25 HIPAA QUALIFIED PROTECTIVE ORDER entered by U.S. Magistrate Judge Tom Schanzle−Haskins on 7/11/2018. (LB, ilcd) (Entered: 07/11/2018)
26 CERTIFICATE of Service. (Chosid, Alexander) (Entered: 07/16/2018)
27 Return of Service Executed by Kelli Andrews as to He Yuan, M.D. 6/29/2018. (Schult, Nicole) (Entered: 08/02/2018)
28 OPINION: For the reasons stated in the Opinion, the Motion to Dismiss Counts II and III of Plaintiff's Complaint 15 filed by Defendants John R.Baldwin, Bruce Rauner, Illinois Department of Corrections, andState of Illinois is DENIED. These defendants shall file an amendedanswer on or before August 20, 2018. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 08/03/2018. (SKN, ilcd) (Entered: 08/06/2018)
29 Amended ANSWER to 1 Complaint AND AFFIRMATIVE DEFENSES by John R Baldwin, Illinois Department of Corrections, Bruce Rauner, State of Illinois.(Tyrrell, Jeremy) (Entered: 08/20/2018)
30 NOTICE of Appearance of Attorney by Karen L McNaught on behalf of He Yuan, M.D. (McNaught, Karen) (Entered: 08/28/2018)
31 ANSWER to 1 Complaint AND AFFIRMATIVE DEFENSES by He Yuan, M.D..(McNaught, Karen) (Entered: 08/28/2018)
NOTICE OF HEARING: Telephonic Rule 16 Scheduling Conference set Wednesday, 10/3/2018, at 9:30 AM (court will place call) before U.S. Magistrate Judge Tom Schanzle−Haskins. Attorneys are directed to comply with Federal Rule of Civil Procedure 26(f) by meeting as soon as practicable, and in any event at least fourteen (14) days prior to the scheduling conference, and are to submit a proposed discovery plan in writing to the Court on or before 10/1/2018. Such a plan must include, at a minimum, those items listed in CDIL−LR 26.2(3), Rule 16(b), Rule 26(f), and CDIL−LR 16.2(E) with proposed deadlines. The parties are directed to specifically address the provisions, if any, for discovery or disclosure of electronically stored information, and to discuss agreements, if any, the parties reach for asserting claims of privilege or of protection as trial preparation material, after inadvertent production. Any plan filed shall specifically address the need, or lack thereof, concerning discovery of electronically stored information. If a discovery plan is not submitted as required, the scheduling hearing will not be held and costs may be assessed. Lead counsel or other counsel of record with knowledge of the case should be available to participate in the Rule 16 scheduling hearing. (LB, ilcd) (Entered: 08/28/2018)
32 REPORT of Rule 26(f) Planning Meeting by Kelli Andrews. (Weil, Stephen) (Entered: 10/01/2018)
33 MINUTE ENTRY for proceedings held before U.S. Magistrate Judge Tom Schanzle−Haskins: Telephonic Rule 16 Scheduling Conference held on 10/3/2018 with Attorneys Elizabeth Mazur, Stephen Weil, Jeremy Tyrrell, Karen McNaught, and Alexander Chosid. The parties have submitted to the Court a disagreement regarding the proposed language to be placed in their protocol for discovery of electronically stored information (ESI). The Court overrules Defendants' objections to the inclusion of paragraph 1(c) contained on page three of the parties' Report of Rule 26(f) Planning Meeting 32 . That paragraph shall be included in the ESI protocol governing discovery of electronically stored information in this case. Information contained in paragraph 1(c) conforms with the provisions of Rule 34(b)(2)(E) of the Federal Rules of Civil Procedure. The language in the first paragraph of Areas of Disagreement (d/e 32 , pg 2) shall be modified by elimination of the first paragraph as the dispute was resolved by the above ruling by the Court. Plaintiff is to tender a protective order to the Defendants which will eliminate the need for redaction of the original or native form of material to be produced pursuant to paragraph 1(c) of the ESI protocol. Plaintiff shall tender the proposed protective order within seven days. The parties shall confer and attempt to agree on the nature of the protective order. If there is a disagreement, the parties shall present the disagreement to the Court for ruling by motion. The Defendants have the option to produce the material described in paragraph 1(c) to the Plaintiff in both PDF and original or native form if the Defendants think such production might eliminate the possibility of improper modifications in the ESI produced. Defendants are not required to produce the information in both PDF and

Case: 1:18-cv-1101 As of: 01/08/2019 11:06 AM CST 7 of 7

10/03/2018
10/25/2018 11/08/2018 11/15/2018 11/27/2018 12/11/2018 12/13/2018 12/13/2018 01/04/2019 01/04/2019
01/04/2019 01/07/2019

original or native form as Rule 34(b)(2)(E)(iii) states a party is not required to produce the same electronically stored information in more than one form. A written Scheduling Order will be entered. Parties are reminded of their option to consent to proceed before U.S. Magistrate Judge. See attached form. (LB, ilcd) (Entered: 10/04/2018)
34 SCHEDULING ORDER entered by U.S. Magistrate Judge Tom Schanzle−Haskins. TIME LIMITS AND SETTINGS ARE ORDERED AS FOLLOWS: Initial Disclosures due by 11/15/2018; Joinder of Parties due by 4/2/2019; Amended Pleadings due by 4/2/2019; Fact Discovery due by 7/15/2019; Plaintiff`s Expert Disclosure due by 9/30/2019; Defendant`s Expert Disclosure due by 1/17/2020; Expert Discovery due by 4/14/2020; Dispositive Motions due by 6/12/2020. Final Pretrial Conference set 10/5/2020 at 2:00 PM in Courtroom 1 in Springfield before U.S. District Judge Sue E. Myerscough. Jury Trial set 10/20/2020 at 9:00 AM before Judge Myerscough. Telephonic Status Conference set Wednesday, 4/15/2020, at 10:30 AM (court will place call) before Magistrate Judge Schanzle−Haskins. See written order. (Attachments: #(1) Mediation Memo, #(2) Courtroom Technology Brochure) (LB, ilcd) (Entered: 10/04/2018)
35 CERTIFICATE of Service. (Chosid, Alexander) (Entered: 10/25/2018)
36 NOTICE of Subpoenas (McNaught, Karen) (Entered: 11/08/2018)
37 CERTIFICATE of Service/Counsel for Rule 26 Initial Disclosures by Karen L McNaught on behalf of Brian Richardson, Wexford Health Sources Inc., He Yuan, M.D. (McNaught, Karen) (Entered: 11/15/2018)
38 MOTION for Protective Order by Plaintiff Kelli Andrews. Responses due by 12/11/2018 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Weil, Stephen) (Entered: 11/27/2018)
39 RESPONSE to Motion re 38 MOTION for Protective Order filed by Defendants John R Baldwin, Illinois Department of Corrections, Bruce Rauner, Jeff Sim, State of Illinois. (Tyrrell, Jeremy) (Entered: 12/11/2018)
40 OPINION entered by U.S. Magistrate Judge Tom Schanzle−Haskins. Plaintiff's Motion for Entry of a Confidentiality Order 38 is ALLOWED. The Court will enter the Proposed Order attached to the Motion. (LB, ilcd) (Entered: 12/13/2018)
41 CONFIDENTIALITY ORDER entered by U.S. Magistrate Judge Tom Schanzle−Haskins on 12/13/2018. (LB, ilcd) (Entered: 12/13/2018)
42 MOTION for Extension of Time to Complete Discovery by Defendants Brian Richardson, Wexford Health Sources Inc., He Yuan, M.D.. Responses due by 1/18/2019 (McNaught, Karen) (Entered: 01/04/2019)
TEXT ORDER by U.S. Magistrate Judge Tom Schanzle−Haskins. Defendants' Agreed Motion for Extension of Time 42 is ALLOWED. Defendants Brian Richardson, Dr. He Yuan, and Wexford Health Sources, Inc. are granted an extension to 2/4/2019 to respond to Plaintiff's interrogatories and request for production of documents. (LB, ilcd) (Entered: 01/04/2019)
43 MOTION for Extension of Time to File Response/Reply to Discovery Requests (Unopposed) by Defendants John R Baldwin, Illinois Department of Corrections, Bruce Rauner, Jeff Sim, State of Illinois. Responses due by 1/18/2019 (Tyrrell, Jeremy) (Entered: 01/04/2019)
TEXT ORDER by U.S. Magistrate Judge Tom Schanzle−Haskins. Defendants' Unopposed Motion for Extension of Time to Respond to Discovery Requests 43 ALLOWED. Defendants John Baldwin, Bruce Rauner, Jeff Sim, Illinois Department of Corrections, and State of Illinois are granted an extension to February 4, 2019 to respond to Plaintiff's discovery requests. (LB, ilcd) (Entered: 01/07/2019)

 
 1:18-cv-01101-SEM-TSH # 1 Page 1 of 22

E-FILED
Sunday, 11 March, 2018 06:45:51 PM Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS

KELLI ANDREWS, as Administrator of )

the

)

Estate of Tiffany Ann Rusher, deceased, )

)

)

Plaintiff,

)

v.

)

)

BRUCE RAUNER, THE STATE OF

)

ILLINOIS, JOHN R. BALDWIN, JEFF )

SIM, HE YUAN, BRIAN RICHARDSON, )

THE ILLINOIS DEPARTMENT OF

)

CORRECTIONS, and WEXFORD

HEALTH SOURCES, INC.,

Case No. 18-cv-1101 JURY TRIAL DEMANDED

Defendants.

COMPLAINT

Plaintiff, Kelli Andrews, in her capacity as administrator of the estate of

Tiffany Ann Rusher, complains against the above-named defendants as follows:

I.

NATURE OF THE ACTION

1. In 2013, Tiffany Rusher began serving a five-year sentence at Logan

Correctional Center. As the result of a disciplinary infraction, she was placed in

solitary confinement. While in solitary, Tiffany’s mental health deteriorated so

badly that she began to engage in serious incidents of self-harm, including suicide

attempts. Rather than providing the treatment she needed to get better, the

defendants responded by repeatedly strapping her to a bed and placing her in an

isolation cell. Instead of helping Tiffany, this exacerbated her condition—as the

defendants knew it would. Then, for the last eight months of her sentence, Tiffany

was kept in complete isolation, stripped of all property and clothing, given nothing

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but a suicide smock (which doubled as a blanket), with a guard literally staring at her 24 hours a day, 7 days a week. These months in isolation devastated Tiffany’s mental health.
2. Tiffany should have been placed in an inpatient psychiatric hospital, and indeed, at any point during her confinement the defendants had the ability to transfer her to such a facility. The defendants did not do this, however. Instead, they waited until her criminal sentence was over, in May 2016. Then, knowing how badly they had damaged her, the defendants had Tiffany transferred directly from Logan to a state mental hospital, where she should have been all along.
3. This action seeks compensation for the months of torture that the defendants inflicted on Tiffany before they finally sent her to a hospital for treatment. Tiffany’s mother Kelli Andrews, who is the administrator of Tiffany’s estate, asserts the following claims to redress the egregious abuse that the defendants inflicted upon her daughter:
4. Count One—Eighth Amendment. By placing Tiffany in extended solitary confinement rather than providing effective treatment for her mental illness, the defendants inflicted cruel and unusual punishment on Tiffany, and exhibited deliberate indifference to Tiffany’s serious medical needs. This caused extreme mental anguish, suffering, and multiple physical injuries, in violation of Tiffany’s right to be free from cruel and unusual punishment under the Eighth Amendment to the United States constitution.
5. Counts Two and Three—Americans with Disabilities Act and Rehabilitation Act. The defendants also discriminated against Tiffany because of
2

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her mental illness, in violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). Tiffany’s severe mental illnesses were disabilities protected by the ADA and the RA. While the defendants have policies to ensure that people confined to IDOC who have conventional medical needs (such as physical injuries or illnesses) receive the medical treatment they need, the defendants did not provide equivalent treatment for Tiffany’s mental condition. Instead, they effectively decided that she should be tortured until her sentence was completed.
6. In further violation of the ADA and the RA, the defendants failed to provide reasonable accommodations for Tiffany’s disability. The defendants provide IDOC prisoners with a variety of programs and services. Among these is furnishing the basic human need of interaction with other persons. With reasonable accommodations to her disability the defendants could have provided Tiffany with these programs and services, but they chose not to. Instead they placed her in extreme and extended solitary confinement, with the devastating consequences described in this Complaint.
7. Tiffany had the right to be free from cruel and unusual punishment and she had the right not to be mistreated because of her disability. By this action, Tiffany’s mother seeks to vindicate those rights and to have the defendants answer for the way they treated a vulnerable young woman, first by inflicting terrific damage on her by placing her in solitary confinement, and then by failing to treat the devastating illness that they themselves had both caused and exacerbated.
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II.

JURISDICTION AND VENUE

8. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a),

as Plaintiff’s causes of action are brought under the Eighth Amendment to the

United States Constitution pursuant to 42 U.S.C. § 1983, the Americans with

Disabilities Act, and the Rehabilitation Act.

9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), as one

or more of the Defendants resides in the Central District of Illinois and the events

giving rise to the claims asserted in this lawsuit arose in this judicial district.

III.

PARTIES

10. Kelli Andrews is Tiffany Rusher’s mother, and is the administrator of

Tiffany’s estate pursuant to an order entered by the Circuit Court for the Seventh

Judicial Circuit of Illinois, Sangamon County. Tiffany Rusher is deceased. Tiffany

was confined at Logan Correctional Center from 2013 until May 2016.

11. Defendant Bruce Rauner is the Governor of Illinois, and he was the

Governor of Illinois during the entire time that Tiffany was in extended solitary

confinement in 2015 and 2016. He is sued in his official and individual capacities.

Governor Rauner oversees both the Illinois Department of Corrections and the

Illinois Department of Human Services. Upon information and belief, Governor

Rauner had actual knowledge that several severely mentally ill prisoners, among

them Tiffany, were in critical need of inpatient psychiatric treatment that was

unavailable at IDOC facilities. At all relevant times Governor Rauner had the

power to secure such treatment by ordering Defendant Baldwin to transfer these

individuals to mental health facilities operated by the Illinois Department of

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1:18-cv-01101-SEM-TSH # 1 Page 5 of 22
Human Services. Despite knowing that these prisoners were in need of such a transfer, however, Governor Rauner did not seek it.
12. Defendant John R. Baldwin is the acting director of the Illinois Department of Corrections (“IDOC”). Director Baldwin is sued in his official and individual capacities. Director Baldwin had actual knowledge that Tiffany and several other severely mentally ill people confined to the IDOC needed inpatient psychiatric treatment that was unavailable at IDOC facilities, and at all relevant times had had the statutory power to secure the transfer these individuals to mental health facilities operated by the Illinois Department of Human Services. Despite knowing that these individuals were in need of such a transfer, however, Defendant Baldwin did not seek it.
13. Defendant Jeff Sim was the Central Regional Psychologist Supervisor of IDOC. Supervisor Sim is sued in his individual capacity. At all relevant times, Sim was directly involved in Tiffany’s care and personally aware of her situation, and had actual knowledge that Tiffany needed inpatient psychiatric treatment that was unavailable at IDOC facilities. At all relevant times Sim had the power to secure her transfer to a mental health facility operated by the Illinois Department of Human Services or any other hospital providing in patient mental health treatment. Despite knowing that Tiffany was in need of such a transfer, however, Defendant Sim did not seek it.
14. Defendant State of Illinois operates the Illinois Department of Corrections, where Tiffany was housed. The State of Illinois also operates the mental health facilities of the Illinois Department of Human Services. Tiffany could
5

1:18-cv-01101-SEM-TSH # 1 Page 6 of 22
have been transferred to one of those facilities instead of being placed in extended solitary confinement at Logan Correctional Center. The State of Illinois receives federal funding.
15. Defendant Wexford Health Sources, Inc. (“Wexford”) is a private company that is under contract to provide medical care to all persons who are incarcerated in the IDOC. This care includes the provision of “[c]omprehensive and specialized mental health services” including “specialty and emergency care that cannot be provided on site.” Despite its contractual obligations, however, by policy and practice Wexford did not provide on-site mental health services necessary to meet the needs of someone with severe mental illnesses like Tiffany, nor did it transfer the people who needed such care to appropriate outside mental health facilities which offered the higher level of care Tiffany required.
16. Defendant Dr. He Yuan was at the times relevant to this complaint the Chief Psychiatrist at Logan Correctional Center. At all relevant times he was employed by Defendant Wexford. He is sued in his individual capacity. Dr. Yuan was responsible for Tiffany’s psychiatric care and was aware that she needed inpatient psychiatric treatment that was unavailable at IDOC facilities. At all relevant times, Dr. Yuan had the power to seek Tiffany’s referral to mental health facilities outside of the IDOC. Despite knowing that these Tiffany was in need of such a referral, however, Defendant Dr. Yuan did not arrange for the care Tiffany needed.
17. Defendant Brian Richardson is a mental health professional at Logan Correctional Center. At all relevant times, he was employed by Defendant Wexford.
6

1:18-cv-01101-SEM-TSH # 1 Page 7 of 22

He is sued in his individual capacity. Richardson personally provided mental

health care to Tiffany. Along with Dr. Yuan, Richardson was responsible for

Tiffany’s mental health care and was aware that she needed inpatient psychiatric

treatment that was unavailable at IDOC facilities. At all relevant times,

Richardson had the power seek Tiffany’s referral to mental health facilities outside

of the IDOC. Despite knowing that these Tiffany was in need of such a referral,

however, Defendant Richardson did arrange for the care Tiffany required.

IV.

FACTS

18. Tiffany Rusher entered the custody of the Illinois Department of

Corrections in early 2013, and she was transferred to Logan Correctional Center in

March 2013. On information and belief, at the time she entered IDOC Tiffany had

not been diagnosed with a mental illness.

19. Later in 2013, Tiffany was placed in solitary confinement as the result

of a disciplinary infraction. In solitary confinement her mental health deteriorated,

and she quickly began trying to harm herself. In October 2013 she tried to strangle

herself. In December 2013 she swallowed at least five batteries. In January 2014

she swallowed a pen. By February 2014 she asked to be placed in restraints because

she wanted to hurt herself, and in May 2015 she attempted to strangle herself with

a piece of elastic. During this time Tiffany cycled between the prison’s general

population and stints in solitary confinement, where she would be placed as

punishment for these acts of self-harm.

20. By May 2014 prison staff had diagnosed Tiffany with a bipolar-type

schizoaffective disorder, a borderline personality disorder, and post-traumatic stress

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1:18-cv-01101-SEM-TSH # 1 Page 8 of 22
disorder. Medical professionals who evaluated her also determined that she was at a continued risk for harming herself, noting that in order to help Tiffany cope with her mental health illnesses it was important for her to be given “out of cell time” and be allowed to engage in activities like socializing and writing. During this time Tiffany was specifically provided with therapy and group activity in order to address the mental illnesses with which she had been diagnosed. At the same time, Tiffany was repeatedly placed in solitary confinement when she tried to hurt herself, which directly undermined the limited mental health care that she had been receiving.
21. In September 2015, after another suicide attempt, Logan medical staff ordered that Tiffany be placed on “constant watch,” in a “crisis cell” within Logan’s Medical Housing Unit (“MHU”). The MHU crisis cell where Tiffany was placed is a solitary-confinement cell that had been stripped bare except for a metal prison toilet and a raised cement slab for a bed. Before being placed in the crisis cell, Tiffany was stripped naked and all her personal property was taken away. This included anything, like books or magazines, that she could have used to occupy her time. The only article of clothing she was permitted was an anti-suicide “smock”—a single piece of thick, woven nylon that cannot be folded or fashioned into a noose, with holes for the head and arms. A guard was stationed outside of Tiffany’s cell, monitoring her constantly, 24 hours a day. And on information and belief, to make monitoring more effective the lights in Tiffany’s cell were never turned off.
22. This type of severe isolation is referred to as “constant” watch. It is an accepted tool for mental health treatment, but it is meant for short periods of
8

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confinement only—typically for a few hours—so that a person in a mental health crisis can be evaluated, a treatment plan can be developed, and the person can thereafter be hospitalized or returned to some form of residential or outpatient care. In the most extreme circumstances it is acceptable to keep a person in “crisis” confinement for a few days, at most. Such extended confinement typically occurs where the person’s psychotropic medication regimen has been altered significantly and caregivers need to assess the results.
23. Under all accepted medical standards, however, longer periods of crisis confinement are strictly forbidden, because it is universally recognized that isolation and solitary confinement for any significant period of time is likely to make a person suffering from mental illness even worse, creating a substantial and increased risk of harm to the patient. For example, the National Commission on Correctional Health Care Standards for Mental Health Services in Correctional Facilities, standard MH-E-07, states: “Inmates who are seriously mentally ill should not be confined under conditions of extreme isolation.” The American Bar Association Treatment of Prisoner Standards, 23:6-11, similarly provides: “Prisoners diagnosed with serious mental illness should not be housed in settings that exacerbate their mental illness or suicide risk, particularly in settings involving sensory deprivation or isolation.” This is to say nothing of the conditions of the bare crisis cell where Tiffany was kept, where she was not only kept alone, but was deprived of anything that she could have used to pass the time. Such stimulus deprivation compounds the effects of solitary confinement.
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24. Shortly after placing Tiffany in a crisis cell, Logan medical staff examined her and confirmed that she suffered from an acute mental health crisis and was at severe risk of self-harm. They also identified her as one of only a few dozen patients within the entire IDOC whose mental illnesses were so acute and dangerous that they required full inpatient level mental healthcare.
25. There are no facilities or services within the IDOC for providing such care. But that should not have prevented Tiffany from receiving the care she needed. The defendants were capable of ensuring that Tiffany received appropriate mental healthcare outside the IDOC. Nevertheless, they failed to do so:
(a) State law empowers the director of the IDOC to have prisoners needing intensive psychiatric care to be transferred from the IDOC to the custody of the Illinois Department of Human Services. See 730 ILCS 5/3-8-5. The Department of Human Services operates multiple mental health centers for treating such people. This includes the Andrew McFarland Mental Health Center (“McFarland”) in Springfield, Illinois, where Tiffany was eventually transferred after her sentence of incarceration was completed. Defendants Baldwin, Sim, and (on information and belief) Rauner were personally aware that there were a handful of people confined to the IDOC, which included Tiffany, who could not receive appropriate psychiatric care within the IDOC and therefore should have been transferred to the custody of the Department of Human Services. Attorneys representing Defendant Baldwin and the IDOC admitted as much during a court hearing in Rasho v. Baldwin, 07-cv-1298 (C.D. Ill. (Mihm, J.)), an ongoing injunctive class action
10

1:18-cv-01101-SEM-TSH # 1 Page 11 of 22
against Defendant Baldwin concerning the care of mentally ill people confined to the IDOC. Despite this knowledge, however, neither Defendant Baldwin or Defendant Sim tried to have Tiffany transferred to a Department of Human Services facility before the completion of her sentence, and Defendant Rauner did not order Baldwin or Sim to effect such a transfer. As a result, Tiffany unnecessarily endured months of solitary confinement in the Logan crisis cell.
(b) Defendants Yuan and Richardson provided care for Tiffany. They knew about her acute mental health condition, and knew that she needed inpatient psychiatric care that was unavailable within the IDOC. They could have sought Tiffany’s referral to an inpatient psychiatric facility through the “collegial review” process operated by Wexford, their employer. They did not do so, however.
(c) Defendant Wexford was capable of having Tiffany transferred out of Logan for inpatient mental health treatment. Wexford was and is under contract with the State of Illinois to provide both medical and mental health care to all people confined to the IDOC. This included the provision of “[c]omprehensive and specialized mental health services” for prisoners, including off-site and hospitalization services as necessary to treat the medical and mental health needs of people confined to IDOC. (Indeed, pursuant to this contract Wexford arranges every day for prisoners suffering from injuries and “physical” illnesses, like cancer, to be transported outside of IDOC prisons to medical facilities where they can receive the medical care
11

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they need.) Wexford also employed doctors and mental health professionals to assess the mental condition of people confined to IDOC. Its employees and agents examined Tiffany and concluded that she was suffering from acute mental distress that required hospitalization. By policy and practice, however, Wexford had never developed such a hospitalization capacity within the IDOC’s facilities, so this meant that Tiffany required off-site hospitalization. On information and belief, however, Wexford also had a policy and practice of ignoring its obligation to provide such off-site hospitalization for seriously mentally ill prisoners, and did not seek to transfer any prisoners—including Tiffany—for the off-site mental healthcare that they needed. As a result of this policy and practice, Tiffany remained in solitary confinement in a crisis cell, suffering the injuries described herein. 26. Indeed, instead of trying to secure effective mental healthcare for Tiffany, for all practical purposes the defendants chose a course of conduct which placed Tiffany at an even graver risk of harm. Instead of providing her with the treatment she desperately needed, defendants chose to keep her in isolation and monitor her condition, carefully documenting her descent into madness. A staff member would come to Tiffany’s cell once a day and ask Tiffany rote questions (such as, “Do you want to harm yourself today?”) through the cell door. Other than this “appointment,” Tiffany was interviewed once per week for 30 minutes by a psychiatrist for purposes of adjusting the levels of her various medications. Otherwise, no effort was made to provide Tiffany with the intensive psychiatric and psychological help that she required.
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27. Eventually, in response to pressure from the Rasho class action lawsuit, Tiffany would occasionally be allowed to leave the crisis cell for a 30minute “group therapy” session, which occurred no more than once per week. This was really a just a gesture at providing therapy, however, and it did not remotely resemble the intensive care that Tiffany actually needed. The short sessions amounted to an infrequent and irregular interruption to the days and weeks on end that Tiffany was forced to spend alone in a bare cell, and to make matters worse, when she was allowed to attend the sessions, she was rarely, if ever, allowed to speak. What is more, prison staff treated the therapy sessions as a privilege rather than as healthcare. If Tiffany attempted to harm herself, the staff would cancel the sessions as punishment.
28. Tiffany’s placement in the bare, solitary crisis cell had a predictable and devastating impact on her mental condition. Suffering from anguish and further decompensating, she made multiple new attempts at suicide, and in the crisis cell she cut herself, bit herself, repeatedly banged her head against a wall, and repeatedly swallowed inedible objects.
29. It was clear, in short, that the extended isolation in a crisis cell was not curing Tiffany and was instead harming her—something that any mental health professional would have known already. And it was clear that Tiffany remained in desperate need of inpatient mental health treatment. This should have caused the defendants to remove Tiffany from solitary confinement and secure actual mental health treatment for her, but they did not do so. Instead, in response to her attempts at self-harm, they allowed even more restrictions to be placed on
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her. For example, after Tiffany attempted to strangle herself by swallowing objects, the toilet paper was removed from her cell. Thereafter, when Tiffany defecated, she had to ask a correctional officer for pieces of toilet paper. Tiffany had to allow the correctional officer to watch her wipe herself, and then demonstrate to the correctional officer that she had flushed the paper down the toilet. A multitude of similarly humiliating and dehumanizing restrictions were placed on Tiffany, including restricting her to soft foods, requiring her to sleep with her hands visible at all times, and even providing a detailed protocol for changing her menstruation sanitary pads so that guards could observe every step of this most intimate of activities.
30. The defendants, in short, knew that allowing Tiffany to be placed in solitary confinement in a crisis cell for any meaningful length of time would be toxic to her mental health and would cause her to suffer both mental anguish and—when she attempted to harm herself as a result of that anguish—intense physical pain. They also had the ability to secure appropriate treatment for Tiffany’s acute and devastating mental condition. But even though they knew Tiffany would be devastated by solitary confinement, and even though they could have provided her with appropriate care, the defendants allowed Tiffany to remain in solitary confinement anyway. In effect the defendants chose not to treat Tiffany but instead to incapacitate her for the remainder of her prison sentence, even though doing so amounted to torture.
31. Finally, in May 2016, Tiffany’s term of incarceration for her underlying criminal conviction ended. However, defendants knew what damage they had
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inflicted on Tiffany, and knew that she was a danger to herself. They therefore took steps to have her involuntarily committed to a state psychiatric hospital, where she should have been all along. Tiffany did not oppose the state’s petition, and thus her admission became “voluntary” under state law. With that, she was transferred directly from the Logan crisis cell to the McFarland mental health hospital operated by the Illinois Department of Human Services.
32. At McFarland, Tiffany was placed in a group setting and she received the intensive psychological and psychiatric care that she had always needed. As a result her mental health condition improved, and she was able to function in a group setting. She was not placed in solitary confinement, and was not subject to the psychologically devastating conditions of solitary confinement. In short, Tiffany received the treatment that the defendants should have provided for her, instead of placing her in solitary confinement for over eight months and causing the injuries and damages described herein.
COUNT I: Eighth Amendment to the United States Constitution Against: Rauner (individual capacity), Baldwin (individual capacity), Sim (individual capacity), Yuan (individual capacity), Richardson (individual capacity),
and Wexford 33. Each paragraph of this complaint is incorporated as if fully restated here. 34. Tiffany suffered from multiple severe mental illnesses that were serious medical conditions and placed Tiffany at serious risk of harm and in need of intense medical treatment. 35. By placing Tiffany repeatedly into solitary confinement, defendants caused or aggravated Tiffany’s mental illness.
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36. The defendants knew that Tiffany’s serious medical needs could not be treated within Logan, and that the isolation of a crisis cell would exacerbate her condition and cause her further damage.
37. Despite what they knew, the defendants failed to transfer Tiffany out of Logan to a facility where she could receive care for her serious mental health condition. Instead, they allowed her to remain isolated in solitary confinement.
38. In so doing, the defendants were deliberately indifferent to Tiffany’s serious medical needs.
39. As a result of the defendants’ failure to secure proper treatment for Tiffany and their decision instead that she be incapacitated in a crisis cell, Tiffany suffered physical pain and acute mental anguish.
40. Defendants’ repeated placement of Tiffany in solitary constituted the infliction of cruel and unusual punishment in violation of the Eighth Amendment.
41. Defendants’ deliberate indifference to Tiffany’s medical needs violated Tiffany’s rights to be free from cruel and unusual punishment under the Eighth Amendment.
42. As a direct and proximate result of Defendants’ actions, Tiffany suffered the mental and physical injuries described herein.
COUNT II: Americans with Disabilities Act Against: Rauner (official capacity), the State of Illinois, Baldwin (official capacity),
the Illinois Department of Corrections 43. Each paragraph of this complaint is incorporated as if fully restated here.
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44. Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).
45. Title II of the ADA (codified at 42 U.S.C. § 12132) states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
46. To prevent discrimination, 28 C.F.R. § 35.130(b)(7) requires a public entity to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity.”
47. The State of Illinois and the Illinois Department of Corrections are public entities as defined in 42 U.S.C. § 12131(1).
48. At all times relevant to this Complaint, in light of her severe mental illness, Tiffany was a qualified individual with a disability within the meaning of Title II of the ADA, 42 U.S.C. § 12131(2).
49. Due to her mental illnesses, Tiffany had a mental impairment that substantially limited one or more major life activities, including but not limited to thinking, interacting with others, and controlling her behavior. As a result of her mental disabilities, she required intensive inpatient psychiatric therapy.
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50. Tiffany was wholly dependent upon Defendants Rauner, the State of Illinois, Defendant Baldwin, and the Illinois Department of Corrections for basic daily needs and appropriate accommodations. As a state prisoner, she met the essential eligibility requirement for receipt of services or the participation in programs or activities provided by the IDOC and the State of Illinois.
51. Under the Title II of the ADA and 28 C.F.R. § 35.130(a), Defendants Rauner, the State of Illinois, Baldwin, and the Illinois Department of Corrections are responsible for ensuring that individuals in custody with known disabilities are provided with reasonable accommodations to prevent discrimination on the basis of disability.
52. Despite Tiffany’s known and obvious disability—her severe mental illness, her repeated attempts to self-harm, and her classification among a handful of prisoners so mentally ill that they could not receive proper care within the IDOC—Defendants Rauner, the State of Illinois, Baldwin, and the Illinois Department of Corrections failed to reasonably accommodate Tiffany’s disability by failing to provide her with access to human contact, rehabilitation opportunities, group therapy, and adequate mental health treatment.
53. The defendants have and do make arrangements for other prisoners, who require hospitalization outside of the IDOC because of physical injuries or illnesses, to receive such outside hospitalization.
54. The foregoing accommodations were reasonable and would have enhanced Tiffany’s quality of life, ameliorated her mental illness, and alleviated her suffering. Instead, and precisely because of her mental illness, Defendants Rauner,
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the State of Illinois, Baldwin, and the Illinois Department of Corrections placed Tiffany in solitary confinement and removed her access to these necessary accommodations.
55. Due to the failure of Defendants Rauner, the State of Illinois, Baldwin, and the Illinois Department of Corrections to provide Tiffany with the reasonable accommodation of inpatient intensive psychiatric treatment, Tiffany was deprived of access to services, programs, and activities, including education, programming, recreation, exercise, human interaction, and mental health treatment and services.
56. The effects of social isolation and dehumanization of solitary confinement on Tiffany were worsened by the Defendants’ deprivation of Tiffany’s access to mental health programs and services to counteract the effects of the solitary confinement.
57. As a result of the Defendants’ failure to provide reasonable accommodation for and their discrimination against her mental illness, Tiffany suffered extreme mental pain and anguish and physical harm, as described in this complaint.
COUNT III: Rehabilitation Act of 1973 Against: Rauner (official capacity), the State of Illinois, Baldwin (official capacity),
and the Illinois Department of Corrections 58. Each paragraph of this complaint is incorporated as if fully restated here. 59. At all times relevant to this Complaint, in light of her severe mental illness, Tiffany was a qualified individual with a disability as defined in Section 504 of the Rehabilitation Act of 1973.
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60. Due to her mental illnesses, Tiffany had a mental impairment that substantially limited one or more major life activity, including but not limited to thinking, interacting with others, and controlling her behavior. As a result of her mental disabilities, she required intensive inpatient psychiatric therapy that was not provided for within the IDOC.
61. The defendants have and do make arrangements for other prisoners, who require hospitalization outside of the IDOC because of physical injuries or illnesses, to receive such outside hospitalization.
62. The State of Illinois and the Illinois Department of Corrections both receive federal financial assistance.
63. Defendants Rauner, the State of Illinois, Baldwin, and the Illinois Department of Corrections discriminated against Tiffany by failing to provide a reasonable accommodation for her mental disabilities.
64. By placing Tiffany in solitary confinement and depriving her from access to appropriate services, programs, and activities, including education, programming, recreation, exercise and mental health services, the Defendants discriminated against her on the basis of her disability in violation of the Rehabilitation Act.
65. As a result of the Defendants’ failure to provide reasonable accommodation for her mental illness, Tiffany suffered extreme mental pain and anguish and physical harm, as described in this complaint.
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V.

RELIEF REQUESTED

WHEREFORE, Plaintiff respectfully requests judgment against Defendants,

jointly and severally, for the following:

A. An award of compensatory, punitive, and nominal damages;

B. An award of full costs and attorneys’ fees arising out of this litigation pursuant to 42 U.S.C. § 1988(b), the Americans with Disabilities Act, the Rehabilitation Act, and;

C. Any and other further relief this Court may deem just and appropriate.

VI.

DEMAND FOR JURY

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff

hereby demands a trial by jury in this action of all issues so triable.

Dated: March 11, 2018

Respectfully submitted,

s/ Alan Mills

.

Alan Mills - alan@uplcchicago.org

Nicole Schult - nicole@uplcchicago.org

Uptown People’s Law Center

4413 North Sheridan Rd.

Chicago, Illinois 60640

Tel: (773) 769-1411

Fax: (773) 769-2224

/s/ Emmanuel Andre

.

Emmanuel Andre - eandre@northsidetlc.com Northside Transformative Law Center 1543 W. Morse Ave. Chicago, IL 60626
(312) 219-654

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/s/ Stephen H. Weil

.

Stephen H. Weil – steve@weilchardon.com Alexis G. Chardon – ali@weilchardon.com Weil & Chardon LLC 333 S. Wabash Ave., Suite 2700 Chicago, IL 60604 312-585-7404

Attorneys for Plaintiff

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