IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

RICHARD BILIK, ) 

 ) 

 Plaintiff, ) 

 ) No. 12-cv-04532 

 v. ) 

 ) Judge Andrea R. Wood 

MARCUS HARDY, et al., ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION 

 This case concerns allegations that the numerous Defendants, individually and in their 

official capacities, were deliberately indifferent to Plaintiff Richard Bilik’s serious medical needs 

in violation of his rights under the Eighth and Fourteenth Amendments to the United States 

Constitution. As alleged in the complaint,1

 the events giving rise to Bilik’s claims span nine 

years, during which time Bilik was incarcerated at four different Illinois Department of 

Corrections (“IDOC”) facilities, and involve 37 named individual Defendants, as well as multiple 

John and Jane Doe defendants. Pending before the Court is a motion to dismiss the claims 

against them filed by Defendants Marcus Hardy, Landria Dennis, and Nancy Ponovich. (Dkt. No. 

102.) For the reasons detailed below, that motion is granted in part and denied in part. And 

moreover, pursuant to 28 U.S.C. § 1915(e)(2)(b), the Court dismisses all other claims against all 

Defendants, except for the lactose-intolerance claim asserted against Defendants Hardy and Kim 

Butler. 

 

1

 The operative complaint in this action, which was filed by pro bono counsel recruited by the Court to 

assist Bilik, attempts to consolidate Bilik’s claims from two separate lawsuits: Bilik v. Hardy et al., Case 

No. 12-cv-4532 (N.D. Ill.), and Bilik v. Hardy et al., Case No. 12-cv-6325 (N.D. Ill.). For the reasons 

detailed here, the Court does not find this to be a viable approach and, to the extent Bilik continues to 

pursue all of his claims, he will need to do so in two separate actions.
2 

BACKGROUND 

For purposes of Defendants Hardy, Dennis, and Ponovich’s motion to dismiss, this Court 

accepts as true all well-pleaded facts and views them in the light most favorable to Bilik. See, 

e.g., Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009). The 

Court applies the same standard in considering the sufficiency of Bilik’s consolidated complaint 

for purposes of § 1915(e)(2)(b). See Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011).

Bilik is currently incarcerated at Pickneyville Correctional Center. At the times relevant 

to his complaint, however, Bilik was incarcerated at the following IDOC institutions: 

 Western Illinois Correctional Center (“Western”) from March 8, 2007 to February 

2009; 

 

 Stateville Correctional Center Northern Receiving and Classification Unit 

(“Stateville NRC”) from February 8, 2010 to June 16, 2010; 

 

 Hill Correctional Center (“Hill”) from June 16, 2010 to July 14, 2010; 

 

 Stateville Correctional Center (“Stateville”) from July 14, 2010 to August 6, 

2010; and 

 

 Menard Correctional Center (“Menard”) from June 14, 2010 to February 2, 2016.2

 

(Cons. Compl. ¶¶ 3–6, Dkt. No. 87.) As detailed below, Bilik alleges that Defendants, as 

employees of the IDOC or Wexford Health Sources, Inc. (“Wexford”) 3 working at Western,4

 

2 There appears to be an error in Bilik’s alleged timeline. Based on the complaint, he was housed at 

Menard during the same time periods he was housed at Hill and Stateville. The Court assumes that this is 

a simple error. 

3

 The following named Defendants were employees of Wexford: Diane Schwarz, a medical doctor at 

Stateville and Hill; Shanai Barnett, a licensed practical nurse at Stateville; Dolores Trevino, a nurse at 

Stateville; Athena Rossiter, a licensed practical nurse at Stateville; Gary Drop, a licensed practical nurse 

at Stateville; Stacey Keagle, a licensed practical nurse at Stateville; Lawanda Frazier-Banks, a CNII at 

Stateville; Priscilla Seybert, a CNII at Stateville; and Robert Shearing, a doctor at Menard. 

4 The following named Defendants were employees of the IDOC or Wexford at Western: S. Scott, a 

Wexford nurse; R. Thompson, a Wexford medical staff member; Larson, a Wexford doctor; Brown, a 

Wexford doctor; D. Drenner, a Wexford medical staff member; S. Brink, a Wexford nurse; Jane Doe, 
3 

Stateville,5

 Hill,6 and Menard,7 or as officials of the State of Illinois,8 deprived him of basic 

sustenance and adequate medical care. 

I. MRSA Infection 

 Bilik alleges that the Stateville and Wexford Defendants violated his Eighth and 

Fourteenth Amendment rights by failing to treat his Methicillin-Resistant Staphyloccus Aureus 

(“MRSA”) infection. Bilik claims that his MRSA infection stemmed from the unsanitary 

conditions of his Stateville cell. The staff refused to distribute cleaning supplies on a regular 

basis, making it difficult for Bilik to clean his cell. He repeatedly submitted grievances about the 

lack of cleaning supplies. (Id. ¶ 35.) Those grievances were acknowledged but nothing was done 

to remedy the problem. (Id. ¶ 36.) Consequently, inmates were confined to filthy cells. (Id.) 

 On or about June 9, 2010, Bilik began to develop an extremely painful growth on his face 

that looked like a boil. (Id. ¶ 39.) At first, Bilik thought it was a spider bite, and he begged the 

 

with the initials K.R., a Wexford practical nurse; C. Thornton, a Wexford practical nurse; P. Ellis, a 

Western medical staff member; Jane Doe, with the initials S.R., a Wexford practical nurse; and H. 

Lochard, a Wexford doctor.

5 The following named Defendants were employees of IDOC who worked at Stateville or Stateville NRC: 

Marcus Hardy, Warden of Stateville; Nancy Ponovich, Superintendent of Stateville NRC; Landria 

Dennis, correctional counselor at Stateville NRC.; A. Johnson, correctional officer; P. Mroz, correctional 

officer; A. Bond, correctional officer; T. Valenzuela, correctional officer; Townsend, correctional officer; 

Novahcvic, correctional officer; Alegbeleye, correctional officer; M. Williams, correctional officer; J. 

Brooks, correctional officer; R. Lund, CWOO at Stateville; Amesymita, COO of Stateville; C. Coleman, 

correctional officer; T. Woodcock, correctional officer; and Sargent John Doe #1. 

6

 The following named Defendants were employees of IDOC who worked at Hill: D. Clark, intake 

officer; S. Taet, Wexford registered nurse; Amy John, PAC at Hill; Lieutenant John Doe #2; Movement 

Correctional Officer John Doe #3; Correctional Officer John Doe #4; Wexford Nurse Jane Doe #1; 

Wexford Nurse Jane Doe #2; and Wexford Nurse John Doe #3. 

7

 The following named Defendants were employees of IDOC who worked at Menard: Kim Butler, 

Warden of Menard; Jacqueline Lashbrook, Assistant Warden at Menard; Counselor Jane Joes (1-3) and 

Counselor John Does (1-3); Grievance Officer Jane Joes (1-3) and Grievance Officer John Does (1-3); 

Correctional Officer John Does (1-3); Food Supervisor John Does (1-3); and Federke, a sergeant. 

8

 The following state actors are sued in their official capacities: Bruce Rauner, Governor of the State of 

Illinois; John Baldwin, Director of IDOC; and Louis Shicker, Medical Director of IDOC. 
4 

correctional officers on staff for medical attention. (Id. ¶ 40.) As it turns out, however, Bilik was 

suffering from a MRSA infection. (Id. ¶ 41.) The infection caused such swelling and pain that 

Bilik was unable to eat or sleep, and frequently wept. (Id. ¶¶ 42, 47.) Notwithstanding the fact 

that his face was noticeably swollen and he repeatedly cried out for help, Bilik’s MRSA infection 

was left untreated for approximately one week at Stateville before his transfer to Hill. (Id. ¶ 43.) 

Once he was transferred to Hill, Bilik’s condition was diagnosed as a MRSA infection and he 

was provided with medication. (Id. ¶ 46.) 

II. Cranial Cyst 

 For some time, Bilik has suffered from a large cranial cyst protruding from his vertex. 

(Id. ¶ 48.) It is unclear from the complaint when this cyst first developed, but Bilik claims that 

the cyst causes him constant excruciating headaches, including migraines. (Id. ¶ 8.) The pain 

relievers prescribed by the Western, Stateville, Hill, and Wexford Defendants did nothing to 

relieve Bilik’s suffering; nonetheless, these Defendants refused to remove the cyst. (Id. ¶ 49.) It 

was not until an intervening incarceration at Cook County Jail on April 12, 2012 that the cyst 

was finally removed at Stroger Hospital. (Id. ¶ 50.) Following the surgery, however, the cyst 

grew back, causing Bilik once again to experience intense headaches and migraines. The 

headaches were so strong that medical staff at Menard attempted to treat them with Mobic, the 

strongest pain-relief medication that Wexford will prescribe. This pain reliever was ineffective, 

however. (Id. ¶ 52.) Indeed, the cyst remained so painful that Bilik was unable to stand for long 

periods of time, which prevented him from going outside for three years. (Id. ¶ 53.) 

 Notwithstanding the ineffectiveness of the occasionally-prescribed pain relievers, all 

Defendants at all IDOC facilities deemed removal of the large cranial cyst to be “elective” and 

refused to prescribe the procedure. (Id.) Defendants’ reason for refusing Bilik the requested 
5 

medical treatment was the purported cost of the procedure. The Stateville Defendants also 

provided a second reason for not removing the cyst—that Bilik only had two years remaining on 

his sentence. (Id. ¶ 54.) 

III. Lactose Intolerance 

 After spending a short period of time at Cook County Jail, Bilik was transferred to 

Stateville on or about February 8, 2010. (Id. ¶ 55.) Upon his arrival at Stateville, Bilik was 

examined by several doctors, physician assistants, nurses, and medical technicians. (Id. ¶ 56.) 

Bilik told these medical staff members that he was lactose intolerant and eating dairy products 

causes him intense intestinal pain. (Id. ¶ 57.) Nonetheless, Bilik was repeatedly served dairy 

products throughout his stay at Stateville. (Id. ¶ 58.) On numerous occasions, Bilik asked 

Stateville correctional officers to accommodate his lactose intolerance. (Id. ¶ 59.) But the 

officers’ only response was to tell Bilik that there were no special diet trays. (Id. ¶ 60.) Bilik was 

forced to consume the dairy products served to him, and he consequently suffered. (Id. ¶ 62.) The 

dairy products gave Bilik diarrhea, severe cramping, and flatulence. (Id. ¶ 63.) Annoyed by his 

flatulence, Bilik’s cellmates routinely threatened him and, on two occasions, beat him. (Id. ¶ 63.) 

The threats and beatings from his inmates caused Bilik to live in constant fear for his life and 

safety. (Id. ¶ 64.) 

 After being denied grievance forms for approximately a week, Bilik was eventually able 

to submit a grievance on March 20, 2010 regarding the lack of dairy-free food. (Id. ¶ 67.) Bilik 

sent a second grievance on March 23, 2010. (Id.) Contemporaneously with those grievances, 

Bilik also submitted weekly request slips to healthcare and sick call. (Id. ¶ 69.) 

 Around March 26, 2010, Bilik was prescribed Lactaid tablets by Defendant Diane 

Schwarz, then a medical doctor at Stateville. (Id. ¶ 72.) The Lactaid pills proved ineffective, and 
6 

eventually Schwarz stopped giving Bilik that medication. (Id.) On March 31, 2010, Hardy, then 

the Warden of Stateville, responded to Bilik’s grievances and request slips, stating that the 

problem was not an emergency and denying Bilik’s plea for dairy-free meals. (Id. ¶¶ 68, 70.) 

Also on March 31, 2000, Defendant Dennis, then a correctional officer at Stateville, responded to 

Bilik’s second grievance dated March 23, 2010, stating that “medical records indicate offender 

Bilik was seen by the physician’s assistant on March 26, 2010 and was given meds[] for his 

medical concerns.” (Id. ¶ 71.) Bilik continued to submit medical requests on a weekly basis, but 

the Stateville Defendants did nothing. (Id. ¶ 75.) On July 1, 2010, Defendant Dennis answered 

another of Bilik’s grievances stating that “this counselor has been told by [Stateville] Medical 

Staff that they do not provide special diet trays to offenders even in cases of food allergies.” (Id.

¶ 76.) 

 Eventually, Bilik was transferred to Menard, where he was also given dairy products at 

mealtime. (Id. ¶ 78.) At Menard, grievance forms were virtually impossible to obtain, making the 

grievance procedure unavailable to inmates. (Id. ¶ 79.) Bilik was nonetheless able to submit 

some grievances. (Id. ¶ 80.) In response, Defendants Kim Butler and Jacqueline Lashbrook, 

respectively the Warden and Assistant Warden of Menard, through Defendant Federke, a 

sergeant, told Bilik to “stop grieving” and performed retaliatory shake downs of Bilik’s cell 

during which his belongings would get tossed about for no reason. (Id.) The correctional officers 

also retaliated against Bilik by refusing to refer him to the medical technician. (Id. ¶ 83.) 

Nonetheless, Bilik continued to complain to correctional officers about his dietary restrictions. 

(Id. ¶ 85.) Despite being advised of Bilik’s lactose intolerance, the Menard Defendants failed to 

assist Bilik by either providing lactose-free meals or directing him to a medical technician. (Id.
7 

¶ 86.) Consequently, during his time at Menard, Bilik was forced to purchase virtually all his 

meals from the prison commissary. (Id. ¶ 87.) 

IV. Allegations Relating to the Lippert v. Godinez Report 

 In addition to allegations regarding Bilik’s lack of medical care, the complaint also 

incorporates allegations of systemic deficiencies relating to lack of medical staff, inadequate 

medical records, and insufficient medical facilities at all IDOC correctional facilities. (Id. ¶ 91–

93.) Bilik bases these allegations on an expert report prepared in Lippert v. Godinez, No. 10-cv4603, 2015 WL 3777551 (N.D. Ill. June 16, 2015). (Id. ¶ 91.) Bilik specifically focuses on the 

findings regarding Stateville, noting the following alleged deficiencies at that facility: (1) a 

number of vacant positions; (2) a lack of appropriate clinical space; (3) delays in medical 

processing; and (4) poor quality medical records. (Id. ¶¶ 93–97.) While Bilik pays particular 

attention to Stateville’s alleged deficiencies, he also broadly condemns the lack of adequate 

healthcare resources and staffing at all IDOC facilities. (Id. ¶ 103.) Bilik also alleges that there is 

little or no supervision of the medical services provided by the Wexford Defendants, thus 

permitting Wexford to largely monitor itself, which results in an untenable conflict of interest. 

(Id. ¶¶ 104–05.) Bilik does not allege that any of these system-wide policies caused the denial of 

his own medical care. 

V. Procedural History 

 

 Bilik filed his initial complaint on June 11, 2012. (Initial Compl., Case No. 12-cv-4532, 

Dkt. No. 1.) That initial complaint named Marcus Hardy, Diane Schwarz, and the Illinois 

Department of Corrections as Defendants. (Id. at 2.) The complaint contained numerous claims, 

including allegations regarding lack of medical treatment for his cranial cyst and MRSA 

infection, and a failure to provide food that accommodated his lactose intolerance. In reviewing 
8 

the initial complaint pursuant to 28 U.S.C. § 1915A, this Court held that Bilik had alleged 

several unrelated claims that were improperly joined, and consequently dismissed the complaint 

without prejudice. (Case No. 12-cv-4532, Dkt. No. 7.) This Court advised Bilik to file his cranial 

cyst and MRSA claims separately from his conditions of confinement claims (which included 

allegations regarding the lack of dairy-free food). (Id.) Bilik complied with this Court’s order and 

filed his lactose-intolerance claim under the new case number 12-cv-06325 on July 15, 2012. 

(See Case No. 12-cv-06326, Dkt. No. 1.) Meanwhile, Bilik filed an amended complaint 

regarding his MRSA and cranial-cyst claims under the original case number, 12-cv-04532, on 

July 15, 2012. (See Case No. 12-cv-04532, Dkt. No. 9.) 

 Thereafter, Bilik filed a motion to consolidate his complaints (Case No. 12-cv-04532, 

Dkt. No. 18), which this Court denied, (Case No. 12-cv-04532, Dkt. No. 25.) The Court did, 

however, grant Bilik’s motions for attorney representation in both cases and recruited the same 

counsel to represent him in each. Then, on May 13, 2016, Bilik filed a consolidated complaint, 

incorporating claims from case numbers 12-cv-06325 and 12-cv-04532. (See Case No. 12-cv04532, Dkt. No. 87.) This consolidated complaint was filed under case number 12-cv-04532 and 

is the only operative complaint. 

DISCUSSION 

To survive a motion under Federal Rule of Civil Procedure 12(b)(6), “a complaint must 

contain sufficient factual allegations, accepted as true, to ‘state a claim to relief that is plausible 

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). This pleading standard does not necessarily require a complaint to 

contain detailed factual allegations. Twombly, 550 U.S. at 555. Rather, “[a] claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 
9 

inference that the defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis, 

742 F.3d 720, 728 (7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 

 Defendants Hardy, Dennis, and Ponovich move to dismiss Bilik’s claims against them on 

two primary grounds: (1) his claims are barred due to insufficient service and failure to timely 

file; and (2) he has failed to allege facts sufficient to state a claim upon which relief can be 

granted. Although the remaining Defendants have neither joined in the motion to dismiss nor 

filed their own responsive pleading, this Court can nonetheless address the entire complaint and 

all named Defendants pursuant to the directions in 28 U.S.C. § 1915(e) and § 1915A(b). 

Pursuant to Sections 1915(e) and 1915A(b), this Court may dismiss an in forma pauperis 

prisoner suit sua sponte if it appears at any time that the action fails to state a claim upon which 

relief can be granted. See Hughes v. Godinez, No. 15-cv-01685, 2015 WL 8519521, at *7 (N.D. 

Ill. Dec. 11, 2015). 

I. MRSA Infection 

 The Court turns first to Bilik’s claims that the Stateville and Wexford Defendants were 

deliberately indifferent to his MRSA infection. 

 A “person who, under color of any statute, ordinance, regulation, custom, or usage, of 

any State” deprives another “person within the jurisdiction of [the United States] . . . of any 

[constitutional] rights . . . shall be liable to the party injured . . . .” 42 U.S.C. § 1983. Prisoners 

enjoy a constitutional right not to be subjected to cruel and unusual punishment. U.S. Const. 

amend. VIII. That right includes “a right to adequate medical care.” See Berry v. Peterman, 604 

F.3d 435, 439 (7th Cir. 2010). To state a claim for constitutionally deficient medical care, a 

plaintiff “must demonstrate two elements: (1) an objectively serious medical condition; and (2) 
10 

an official’s deliberate indifference to that condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th 

Cir. 2011). 

 There are two different standards of deliberate indifference applicable in this case: one 

for prison officials and one for medical personnel. Overall, “[t]he Eighth Amendment safeguards 

the prisoner against a lack of medical care that ‘may result in pain and suffering which no one 

suggests would serve any penological purpose.’” Rodriguez v. Plymouth Ambulance Serv., 577 

F.3d 816, 828 (7th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state an 

Eighth Amendment claim based on deficient medical care, a plaintiff must allege an objectively 

serious medical condition and an official’s deliberate indifference to that condition. Arnett, 658 

F.3d at 751. Bilik has adequately pleaded that his MRSA infection was an objectively serious 

medical condition. See Myrick v. Anglin, 496 Fed. App’x 670, 674 (7th Cir. 2012) (plaintiff 

whose MRSA caused “excruciating pain” demonstrated “a sufficiently serious condition to 

support an Eighth Amendment claim”). 

 Prison officials generally are “entitled to relegate to the prison’s medical staff the 

provision of good medical care.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). 

However, the Seventh Circuit has recognized that even when a prisoner is under medical 

supervision, a prison official may be held liable for deliberate indifference to the prisoner’s 

serious medical needs if that prison official has “a reason to believe (or actual knowledge) that 

prison doctors or their assistants are mistreating (or not treating) a prisoner.” Arnett, 658 F.3d at 

755 (quoting Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008)). Thus, deliberate indifference 

claims may proceed against non-medical prison authorities when the pleadings indicate that 

those officials had actual, subjective knowledge of improper treatment. See id. at 755. 
11 

 One way a prison official may obtain actual knowledge of an inmate’s serious medical 

condition and inadequate medical care is through grievances or other correspondences. See Perez 

v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015); see also Martinez v. Garcia, No. 08-cv-2601, 

2012 WL 266352, at *5 (N.D. Ill. Jan. 30, 2012) (finding that a warden’s “failure to take action 

despite receiving both a letter and an in-person communication” in which the plaintiff “informed 

him of the medical staff’s refusal to treat him, coupled with [the prison doctor’s] unresponsive 

memos, suffices to defeat” the warden’s motion for summary judgment on a deliberate 

indifference claim). Alternatively, a serious medical condition may be so obvious that even a lay 

person could perceive the need for a doctor’s attention. See Greeno v. Daley, 414 F.3d 645, 653 

(7th Cir. 2005). But even if non-medical officials are aware of a medical need, they are generally 

permitted to rely on decisions made by medical personal. See Hardy v. Wexford Health Sources, 

Inc., No. 12-cv-6554, 2015 WL 1593597, at *7–8 (N.D. Ill. Apr. 2, 2015). 

 Meanwhile, medical professionals are liable for deliberate indifference if they make a 

decision that is “such a substantial departure from accepted professional judgment, practice, or 

standards, as to demonstrate that the person responsible actually did not base the decision on 

such a judgment.” Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (quoting Sain v. Wood, 

512 F.3d 886, 895 (7th Cir. 2008)). Ultimately, the “decision of a medical professional to do 

nothing, even though she knows that a patient has a serious medical condition requiring prompt 

treatment that the professional is capable of and responsible for providing, amounts to deliberate 

indifference.” Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940 (7th Cir. 2015). 

 In applying this deliberate-indifference framework, the Court notes several deficiencies 

with respect to Bilik’s MRSA claim. First, Bilik does not specifically identify which nonmedical 

prison officials had actual knowledge of his MRSA infection and how they obtained that 
12 

knowledge. For example, Bilik alleges that his face was noticeably swollen, but he does not 

provide information about who exactly saw his face and therefore was responsible for contacting 

medical authorities. Second, Bilik conflates the Stateville Defendants’ knowledge of his dirty 

cell with knowledge of his MRSA infection. However, a filthy cell is a circumstance separate 

and distinct from Bilik’s medical condition. Finally, Bilik has made no allegations whatsoever as 

to how any of the individual Wexford Defendants were deliberately indifferent to his medical 

condition. To state a claim, he must at least allege that the Wexford Defendants knew about his 

medical condition and failed to act according to accepted professional standards. 

 For these reasons, Bilik’s MRSA claim is dismissed without prejudice in its entirety. 

II. Cranial Cyst 

 The same general problem that plagues Bilik’s MRSA claim also dooms his cranial cyst 

claim. Bilik alleges that all 37 named Defendants, across four separate correctional facilities, 

were deliberately indifferent to his cranial cyst in violation of his Eighth and Fourteenth 

Amendment rights. But Bilik does not allege who, if anyone, had actual knowledge of his cranial 

cyst. 

 To plead deliberate indifference adequately, a plaintiff must allege a prison official’s 

actual awareness of the constitutional violation at issue. Bilik here broadly alleges that 

Defendants had knowledge of his cranial cyst based on his written grievances, verbal complaints, 

physical appearance, and medical examinations. Crucially, however, Bilik fails to allege to 

whom he sent grievances, to which specific correctional officers he verbally complained, with 

whom he came into contact who saw the cyst, and who gave him a medical examination. This 

lack of specificity is insufficient to establish actual knowledge and deliberate indifference. 
13 

Because Bilik has failed to allege that any Defendant knew about his cranial cyst, the claim is 

dismissed as to all Defendants. 

III. Lactose Intolerance Claim 

A. Time-Barred Claims 

 For his final claim, Bilik alleges that the Stateville, Menard, and Wexford Defendants 

were deliberately indifferent toward his lactose intolerance. According to Defendants Hardy, 

Dennis, and Ponovich, however, this claim is time-barred. 

 Dismissal based on a statute of limitations is an affirmative defense. See Fed. R. Civ. P. 

8(c)(1). Generally, “complaints do not have to anticipate affirmative defenses to survive a 

motion to dismiss.” United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). But dismissal is 

appropriate where “the allegations of the complaint itself set forth everything necessary to satisfy 

the affirmative defense, such as when a complaint plainly reveals that an action is untimely under 

the governing statute of limitations.” Id. In Illinois, the statute of limitations for claims under 42 

U.S.C. § 1983 claims is two years. 735 ILCS 5/13-202. “For continuing Eighth Amendment 

violations, the two-year period starts to run (that is, the cause of action accrues) from the date of 

the last incidence of the violation, not the first.” Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 

2013) A violation is continuing if it “would be unreasonable to require or even permit [plaintiff] 

to sue separately over every incident of the defendant’s unlawful conduct.” Heard v. Sheahan, 

253 F.3d 316, 319 (7th Cir. 2001). For continuing violations, the two-year period “accrues when 

the defendant has notice of the untreated condition” and typically “ends only when treatment is 

provided or the inmate is released.” Jervis v. Mitcheff, 258 Fed. App’x 3, *5–6 (7th Cir. 2007). 

Here, Bilik alleges deliberate indifference toward his lactose intolerance throughout both of his 

periods of incarceration at Stateville, as well as during his time at Menard. 
14 

 Bilik’s lactose-intolerance claim is properly considered as two continuing violations 

corresponding to two separate time periods. Bilik’s first period of incarceration at Stateville 

spanned from February 8, 2010 until June 16, 2010, at which point he was transferred to Hill for 

a month. Bilik plainly knew about the significance of his claim prior to leaving Stateville, as he 

made numerous complaints and filed grievances concerning his lactose intolerance during that 

time period. Once Bilik was transferred from Stateville on June 16, 2010, he had all the 

information he needed to file a complaint regarding those five months. See Heard, 253 F.3d at 

318 (stating that a continuing violation lasted “for as long as the defendants had the power to do 

something about his condition, which is to say until he left the jail”). 

The parties do not dispute that Bilik filed his initial complaint on June 11, 2012, within 

the two-year statute of limitations. However, this original complaint only named as Defendants 

Hardy and Schwarz.9 It was not until July 15, 2012, when Bilik filed his amended complaint, that 

numerous other Stateville, Menard, and Wexford Defendants were added as parties. This July 15, 

2012 filing falls outside of the statute of limitations with respect to Bilik’s first period of 

incarceration at Stateville—which ended on June 16, 2010. Therefore, the lactose-intolerance 

claim for the first-period of incarceration is time-barred as to all Stateville Defendants except 

Hardy and Schwarz. 

 In response to the motion to dismiss, Bilik argues that his amended pleading should relate 

back to his original filing, which was timely. Indeed, Federal Rule of Civil Procedure 15(c) 

allows a plaintiff to add otherwise time-barred claims against new defendants if the claims 

“relate back” to the original complaint. Fed. R. Civ. P. 15(c). The amended pleading will “relate 

back” if the proposed defendants “knew or should have known that the action would have been 

 

9

 The IDOC was also named in this original complaint but was terminated as an improper Defendant on 

January 2, 2013. 
15 

brought against it, but for a mistake concerning the proper party’s identity.” Id. But Rule 15(c) is 

inapplicable “[w]hen the original complaint and the plaintiff’s conduct compel the conclusion 

that the failure to name the prospective defendant in the original complaint was the result of a 

fully informed decision as opposed to a mistake concerning the proper defendant’s identity.” 

Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 552 (2010); see also Perales v. Cty. of LaSalle, 

No. 15-cv-10110, 2017 WL 3434229, at *5 (N.D. Ill. Aug. 10, 2017) (“Relating back generally 

occurs where the proper defendant is already before the court and the Rule can merely correct the 

name under which the defendant has been sued, but a plaintiff fails to meet the requirements of 

Rule 15(c) when the original and amended complaint taken together demonstrate that the 

plaintiff chose not to include the defendant in the original complaint.”). 

 Bilik’s failure to name the Stateville and Wexford Defendants in his original complaint 

was no mistake, but instead was the result of an unfocused and overbroad statement of facts. 

Rather than discussing the numerous Defendants involved in his claims (at least some of whom 

he could plainly identify by name, as evidenced by his grievances), Bilik spent a large portion of 

his original complaint discussing a variety of unrelated claims—including that he was locked in 

his cell for all but ten minutes per week, he did not receive any state pay, meals were served cold 

and at inconvenient times, his mattress was lumpy and soiled, he was denied medication for his 

migraines, he was only permitted to shave once a week, and the mail was backed up for up to 

two months on a regular basis. When determining whether a claim should relate back, courts ask 

“whether the defendant who is sought to be added by the amendment knew or should have 

known that the plaintiff, had it not been for a mistake, would have sued him instead or in 

addition.” Joseph v. Elan Motorsports Tech. Racing Corp., 638 F.3d 555, 559–60 (7th Cir. 

2011). Here, it would not be reasonable to expect that the 15 newly-named Stateville Defendants 
16 

and the eight newly named Wexford Defendants (most of whom had no contact with Bilik based 

on the allegations in the complaint) to have anticipated being sued based on the overbroad 

allegations in Bilik’s original complaint. 

Consequently, Bilik’s lactose-intolerance claim as it pertains to his first period of 

incarceration at Stateville from February 8, 2010 until June 16, 2010 is time-barred with respect 

to all Defendants except Schwarz and Hardy. The claim is not time-barred as to Bilik’s second 

period of incarceration at Stateville, from July 14, 2010 to August 6, 2010. 

B. Failure to State a Claim 

 Although Bilik’s lactose-intolerance claim is not entirely time-barred, it still suffers from 

several deficiencies. Most significantly, despite that Bilik names all Stateville, Menard, and 

Wexford Defendants as responsible, his complaint only specifically mentions Defendants Hardy, 

Dennis, Schwarz, Butler, Lashbrook, and Federke. As mentioned above, Bilik cannot broadly 

assert a claim of deliberate indifference against all Defendants but instead must specifically 

allege how and when each Defendant was deliberately indifferent to his medical needs. 

Accordingly, only the allegations with respect to Hardy, Dennis, Schwarz, Butler, Lashbrook, 

and Federke might conceivably state a claim. 

 As also noted above, to allege deliberate indifference a plaintiff’s complaint must show: 

(1) that the medial condition is objectively serious, and (2) that defendant had subjective 

knowledge of the risk to the inmate’s health, and nonetheless disregarded this risk. Thomas v. 

Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 301 (7th Cir. 2001). With respect to the first prong of a 

deliberate indifference claim, an objectively 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 
17 

would perceive the need for a doctor’s attention.” Edwards v. Snyder, 478 F.3d 827, 830–31 (7th 

Cir. 2007) (internal quotation marks omitted). 

 At this stage in the proceedings, Bilik has alleged an objectively serious medical 

condition. See Jackson v. Gordon, 145 Fed. App’x 774, 776 (3d Cir. 2005) (holding that the 

plaintiff’s allegation of severe lactose intolerance and egg allergy, which resulted in inadequate 

meals, was sufficient to state an Eighth Amendment claim). Specifically, Bilik claims that for the 

years he was at Stateville and Menard, he was forced to eat dairy products, which caused 

diarrhea, excruciating intestinal pain, and flatulence. The Seventh Circuit has recognized that a 

prisoner’s complaints of chronic pain may be enough to support a claim. See Greeno, 414 F.3d at 

655 (“[T]here is no requirement that a prisoner provide ‘objective’ evidence of his pain and 

suffering—self-reporting is often the only indicator a doctor has a of a patient’s condition.”). 

Further, Bilik’s consumption of dairy items caused flatulence, which resulted in Bilik being 

routinely threatened by his cellmates and beaten on two occasions. Thus, according to Bilik the 

failure to address his dairy allergy caused him to live in constant fear for his safety. Accepting 

Bilik’s allegations as true, the Court concludes that Bilik has articulated an objectively serious 

medical condition. 

 With respect to the non-medical prison officials—Hardy, Dennis, Butler, Lashbrook, and 

Federke—to state a claim Bilik must allege “that the responsible prison officials were 

subjectively aware of the condition, and consciously disregarded the risk to [his] health or 

safety.” Hemphill v. Wexford Health Sources, Inc., No. 15-cv-04968, 2016 WL 2958449, at *2 

(N.D. Ill. May 23, 2016). That is, he “must allege that a prison official, acting with a culpable 

state of mind, knew of a significant risk to [his] health and disregarded that risk.” Id. (citing 

Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)). Generally, if an inmate is under the care of 
18 

medical experts, “a non-medical prison official will generally be justified in believing that the 

prisoner is in capable hands.” Arnett, 658 F.3d at 755. Non-medical prison officials can, 

however, be charged with deliberate indifference when they have “a reason to believe (or actual 

knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.” Id.

(quoting Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008)). Inmate correspondence to a prison 

official may “establish a basis for personal liability under § 1983 where that correspondence 

provides sufficient knowledge of a constitutional deprivation.” Perez, 792 F.3d at 782. After 

being alerted of a constitutional deprivation, a prison official’s refusal to act to remedy the 

inmate’s situation may reflect deliberate indifference. Id.

 Bilik alleges that he sent grievances regarding his lactose intolerance to Defendants 

Hardy and Butler. Hardy responded to the lactose-intolerance grievance he received by deeming 

it a non-emergency and refusing Bilik his requested relief of dairy-free meals; Butler responded 

by instructing Federke to punish Bilik for his grievances by performing a retaliatory shake-down. 

Read in the light most favorable to Bilik, the pleadings support a theory that prison doctors were 

mistreating or not treating Bilik for the entire period he was in custody and that both Hardy and 

Butler knew about the mistreatment or non-treatment through Bilik’s grievances but did nothing 

to remedy the problem. 

 Bilik has not, however, alleged that Federke knew about his medical condition—indeed, 

based on the complaint, Federke was simply complying with Lashbrook’s orders to shake-down 

Bilik’s cell. And while Bilik claims that Lashbrook helped coordinate the shake-downs, he does 

not indicate how Lashbrook knew about the lactose-intolerance issue. Therefore, as to Federke 

and Lashbrook, Bilik has failed to state a claim of deliberate indifference. 
19 

 The only medical personnel Bilik specifically references as acting with deliberate 

indifference towards his lactose intolerance is Schwarz. The bar that Bilik must clear to establish 

Schwarz’s deliberate indifference is high, as such a claim is not equivalent to a medical 

malpractice claim. Instead, medical professionals such as Schwarz are entitled to deference in 

their treatment decisions unless no minimally competent professional would have so responded 

under the circumstances. Roe v. Elyea, 631 F.3d 843, 857–58 (7th Cir. 2011). In other words, a 

medical professional acting in a professional capacity is deliberately indifferent only if the 

professional’s decision was such a substantial departure from accepted professional judgment, 

practice, or standards as to demonstrate that the decision was not based on such a judgment at all. 

Id. All Bilik alleges about Schwarz’s treatment is that she prescribed him Lactaid tablets. But it 

is entirely unclear from the complaint when the tablets were prescribed, what Bilik discussed 

with Schwarz, and whether he saw her again after she prescribed the Lactaid pills—in other 

words, it is unclear what exactly Schwarz knew about Bilik’s medical condition. For these 

reasons, Bilik has failed to plead a deliberate indifference claim against Schwarz. 

 In sum, based on the present allegations. Bilik may proceed with his lactose-intolerance 

claim only against Hardy and Butler. The claims against all other Defendants are dismissed 

without prejudice. 

IV. Allegations Relating to Lippert report 

 In addition to allegations of deliberate indifference to his individual medical needs, Bilik 

also alleges that systemic deficiencies at each prison’s health care facility resulted in 

constitutionally inadequate health care for all inmates. Despite spending several pages of his 

complaint discussing these systemic deficiencies, however, Bilik does not include a separate 

count with respect to them. Federal Rule of Civil Procedure 10(b) requires that a party limit its 
20 

claims “as practicable to a single set of circumstances” and that “each claim founded on a 

separate transaction or occurrence . . . must be stated in a separate count or defense.” Fed. R. 

Civ. P. 10(b). The purpose of Rule 10(b), in conjunction with Rule 8, is to “give defendants fair 

notice of the claims against them and the grounds supporting the claims.” Stanard v. Nygren, 658 

F.3d 792, 797 (7th Cir. 20111). Because the systemic deficiencies allegations run afoul of Rule 

10(b), the Court dismisses any separate claim sought to be asserted based on these allegations. 

See Three D Departments, Inc. v. K Mart Corp., 670 F. Supp. 1404, 1409 (N.D. Ill. 1987) 

(“Although Rule 10(b) does not specify the appropriate remedy for violations of its provisions, 

courts retain the inherent power to order compliance with the rule.”). Moreover, the Court also 

notes that Bilik fails to connect these alleged systemic issues to the facts of his case—there are 

no allegations that the inadequacies alleged in the report impacted Bilik’s own medical care in 

any way. Indeed, the reports that he references were based on prison monitoring and surveys that 

were done after he left the Western, Stateville, and Hill facilities. Bilik also has failed adequately 

to allege a claim based on systemic deficiencies for this reason as well. 

V. Failure to Timely Serve Hardy 

 The Court next addresses the argument in the motion to dismiss that Hardy was not 

timely served. Federal Rule of Civil Procedure 4(c) requires the plaintiff in a civil action to serve 

a summons, along with a copy of the complaint, on each defendant within the time allowed by 

Rule 4(m). Fed. R. Civ. P. 4(c)(1). Under Rule 4(m), a defendant generally must be served 

within 120 days after the complaint is filed. Fed. R. Civ. P. 4(m).10 If a defendant is not served 

within the allotted time, the court must dismiss the action against the defendant unless the 

plaintiff can show good cause for failure to timely serve. Tso v. Delaney, 969 F.2d 373, 375 (7th 

 

10 At the time Bilik filed his original complaint, the deadline within which a defendant had to be served 

was 120 days. Since then, however, the time to serve has been reduced to 90 days. 
21 

Cir. 1992). The plaintiff must show that he engaged in reasonable and diligent efforts to effect 

service to support a finding of good cause. A plaintiff makes reasonable efforts if he proceeds in 

a manner reasonably calculated to effect service within the prescribed time. “[H]alf-hearted 

efforts to serve a defendant will not excuse a plaintiff from adhering to the 120-day deadline.” 

Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988). 

 Bilik first filed his complaint against Hardy on June 11, 2012. Subsequently, Bilik’s 

entire complaint was dismissed before summons issued. After Bilik filed his amended complaint, 

Defendants Ponovich and Dennis executed waivers of service and an appearance was filed for 

them on November 12, 2013. But Hardy was not served until more than two years after the 

original complaint was filed. The Court finds that there was good cause for the delay in service 

in this case. Given the complex procedural history of this case, the number of Defendants, and 

the fact that Bilik was initially representing himself pro se from prison, the Court finds Bilik’s 

delay in service to be excusable. Therefore, Defendants’ motion to dismiss Hardy for failure to 

timely serve him is denied. 

VI. Severance

 Finally, the Court considers whether all Bilik’s claims were properly brought in a single 

complaint. Pursuant to Federal Rule of Civil Procedure 20, different claims against different 

defendants can be joined in a single suit if the claims arise “out of the same transaction, 

occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 20. However, as the 

Seventh Circuit emphasized in George v. Smith, 507 F.3d 605 (7th Cir. 2007), unrelated claims 

against different defendants belong in separate lawsuits. Id. at 607. Requiring separate lawsuits 

not only “prevent[s] the sort of morass” that occurs in a multi-claim, multi-defendant lawsuit, but 

it also ensures that prisoners pay the filing fees required under the Prison Litigation Reform Act. 
22 

Id. When unrelated claims are brought in the same suit, “[t]he court may . . . sever any claim 

against any party.” Fed. R. Civ. P. 21. 

 After considering the consolidated complaint filed by Bilik’s recruited counsel in this 

case, the Court concludes that Bilik’s lactose-intolerance claim is an unrelated claim that belongs 

in a different complaint from his claims based on his MRSA infection and cranial cyst. Bilik’s 

lactose-intolerance claim is based on Bilik’s right to receive nutritious food and Defendants’ 

obligation to provide food that does not cause sickness. See Prude v. Clarke, 675 F.3d 732, 734 

(7th Cir. 2012) (“Deliberate withholding of nutritious food or substitution of tainted or otherwise 

sickening food, with the effect of causing substantial weight loss, vomiting, stomach pains, and 

maybe an anal fissure . . . , or other severe hardship, would violate the Eighth Amendment.”). As 

such, the lactose-intolerance claim will likely involve discovery related to Defendants’ meal 

policies and practices, including what food Bilik was provided. In contrast, Bilik’s MRSA and 

cranial-cyst claims stem from his right to receive adequate medical care and, if he can amend his 

complaint to proceed with those claims, discovery will likely center solely around his requests 

for treatment and subsequent medical attention. Given these differences, the Court finds that the 

lactose-intolerance claim does not arise out of the same transaction or occurrence as the MRSA 

and cranial-cyst claims. 

 Accordingly, the lactose-intolerance claims will be severed from the other claims. As 

those claims were originally filed under case number 12-cv-06325, they will proceed forward 

under that case number. Bilik shall file an amended complaint under case number 12-cv-06325 

that focuses on the surviving lactose-intolerance claims. Given the convoluted nature of the 

consolidated amended complaint, the Court will require the filing of an amended complaint even 

if Bilik decides to proceed only as to the claims that have survived as currently alleged. 
23 

Meanwhile, Bilik’s MRSA and cranial-cyst claims, which were originally asserted under case 

number 12-cv-04532, shall proceed, if at all, under that case number. 

CONCLUSION 

 For the foregoing reasons, Defendants Hardy, Dennis, and Ponovich’s motion to dismiss 

(Dkt. No. 102) is granted in part and denied in part, and the Court dismisses other portions of the 

complaint on its own motion pursuant to 28 U.S.C. § 1915(e)(2). Specifically, Bilik’s lactoseintolerance claim for his time at Stateville prior to June 16, 2010 is dismissed with prejudice, 

except as to Defendants Hardy and Schwarz. And the post-July 15, 2010 Stateville lactoseintolerance claim is dismissed without prejudice as to all Defendants except Hardy and Butler. 

Bilik’s MRSA-infection and cranial-cyst claims are dismissed in their entirety without prejudice. 

Finally, the lactose-intolerance claim is severed from the MRSA infection and cranial cyst 

claims. Bilik shall file an amended complaint under case number 12-cv-06325 with respect to the 

surviving lactose-intolerance claims. Should he seek to amend his MRSA and cranial cyst 

claims, he should do so in a separate amended complaint filed under this case number, 12-cv04532. 

ENTERED: 

Dated: August 24, 2018 __________________________ 

 Andrea R. Wood 

 United States District Judge