r

VI. Official Capacity Claims

Finally, Boey asks for relief against the defendants in both their individual and official
capacities. Suits against state officials in their official capacities are effectively suits against the state
itself, but states are not “persons” who may be sued under § 1983 for constitutional deprivations and
the Eleventh Amendment bars federal suits by individuals against states. Power v. Summers, 226 F.3d
815, 818 (7th Cir. 2000). All official-capacity claims are accordingly dismissed.

CONCLUSION

For the reasons set forth above, defendants’ motion to dismiss is granted as to Boey’s claim that
failure to prevent his cell from flooding when it rained constituted cruel and unusual punishment in
violation of the Eighth Amendment. With respect to Boey’s medical-care claims, defendants’ motion
to dismiss is denied as to defendants Russell, Thompson, Wainscott, Cattaneo and Borkowski.
Defendants’ motion is granted as to defendant Thomas, and with no claims remaining against him he
is dismissed as a defendant. Defendants’ motion is granted as to defendant Briley, except with respect
to Briley’s failure to respond to Boey’s emergency grievance in December of 2000. All official-
capacity claims are dismissed. Defendants shail answer the complaint within thirty days of the date
of this order.

ENTER:

DATE | 11a?
ro

13


that Boey had collapsed and hit his head on the floor, Borkowski “forced [Boey] to walk back to H-
House in his discombobulated state." When Boey continued to insist that he was ill, Borkowski said,
"I'll place my name in your chart so you can sue me, I like getting days off.”

After he had been returned to H-House, Boey again lost consciousness. His cellmate called for
help, and defendant med-tech Cattaneo came to Boey’s cell. Boey states that Cattaneo knew of Boey’s
condition but refused to let him see a doctor. When Cattaneo was making his rounds on December
14, 2000, Boey asked why Cattaneo hadn't put him in for sick call. Cattaneo responded that if Boey
had seen a doctor in the last two weeks, he couldn’t see the doctor. Boey alleges that Stateville’s
"patients rights” statement instructs inmates to return to sick call if there is no improvement in their
condition within 48 to 72 hours.

Boey filed an emergency grievance on December 9, 2000, sending it directly to Warden Briley
as permitted by IDOC regulations.” In a note dated December 18, 2000, Briley responded that the
grievance did not need to be heard on an emergency basis, and directed Boey to resubmit it through
his counselor. Correctional counselor Louis Briick (who is not named as a defendant) responded on
January 29, 2001, that "no grieveable issue exists. Treatment has been appropriate."

Boey alleges that he continued to request "further evaluation" of his injuries from Dr. Tilden,
but gives no specific dates for these requests, nor does he allege that he filed further grievances with
respect to them. Boey also does not allege that he suffered additional blackouts.

¥ Emergency Procedures

An offender may request a grievance be handled on an emergency basis by forwarding the
grievance directly to the Chief Administrative Officer.

a) If the Chief Administrative Officer determines that there is a substantial risk of imminent
personal injury or other serious or irreparable harm to the offender, the grievance shall be
handled on an emergency basis.

b) The Chief Administrative Officer shall expedite processing of the grievance and respond to
the offender, indicating what action shall be or has been taken.

20 Ill. Admin. Code § 504.840.


IV. Denial of Medical Care

With respect to Boey’s claims of denial of medical care, defendants offer generally correct
statements of law but make no effort to address Boey’s actual allegations. At least with respect to
these defendants, Boey is neither complaining that he did not receive "the best care possible,” nor
"disagree[ing] with the method of treatment." Def. Br. at 7. Boey complains of virtually sadistic
treatment in one instance and no treatment at all in others.

Boey alleges that although he complained of a neck injury and could not move without severe
pain, Russell tried to force him to his feet. After Boey’s screams convinced Russell that Boey would
have to be moved on a stretcher, he and Thomas, assisted by Wainscott, tried to angle the stretcher
into an elevator that could not accommodate it, causing Boey to fall off. Carelessness or clumsiness
does not violate the Eighth Amendment, but the allegations strongly suggest that these defendants saw
their task as moving Boey’s body with as little effort as possible without regard to the pain, or even
additional injury, they might inflict on Boey.

Defendants Cattaneo and Borkowski allegedly refused to take Boey to the health care unit when
he lost consciousness. Loss of consciousness qualifies as a "serious medical need,” since “even a lay
person would easily recognize the necessity for a doctor’s attention." Gutierrez v. Peters, 111 F.3d
1364, 1373 (7th Cir. 1997). It follows that deliberate indifference to that need violates the Eighth
Amendment. In both cases, persons who had been with Boey confirmed to the med-tech that he had
lost consciousness, and it can reasonably be inferred from the allegations of the complaint that
Cattaneo and Borkowski refused to take Boey to see a doctor for reasons unrelated to any professional
assessment of Boey’s condition. To refuse to let Boey be examined by a physician under these
circumstances amounted to deliberate indifference.

There remains the question whether preventing Boey from seeing a physician caused him any
actual injury. Deliberate indifference to a risk of serious harm that does not materialize is not an
Eighth Amendment violation, even though the inmate suffers the unnecessary apprehension that it
might. See Babcock v. White, 102 F.3d 267, 271 (7th Cir. 1996)(no liability for failure to respond

to prisoner’s reasonable fear of assault by other inmates when no assault occurred). Boey may not


that prisoners will have unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if those needs are serious.

Hudson v. McMillian, 503 U.S. 1, 9 (1992)(internal citations and quotations omitted). Second, the
defendant must have a subjectively culpable state of mind. The defendant must have either
intentionally inflicted unnecessary suffering or permitted it through deliberate indifference, "know[ing)
that inmates face a substantial risk of serious harm and disregard[ing] that risk by failing to take
reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994).

Defendants make essentially three contentions: (a) none of the claimed deprivations was
objectively serious enough to violate the Eighth Amendment; (b) assuming Boey suffered any
deprivation of constitutional magnitude, defendants Briley and Thomas cannot be liable because they
had no knowledge of it and were not personally involved; and (c) Briley and Thomas are entitled to
qualified immunity because reasonable officials in their positions would not have known that what they
did or failed to do violated Boey’s rights.

The first two are valid objections as to portions of Boey’s claims, but qualified immunity is
irrelevant here. Qualified immunity shields governmental officials performing discretionary functions
from claims for money damages under 42 U.S.C. § 1983 unless they violate “clearly established
statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer,
536 U.S. 730, 739 (2002)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A right is
“clearly established" if its contours are “’sufficiently clear that a reasonable official would understand
that what he is doing violates that right.’" Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). This does not require that the identical claim have been previously decided, only that the
state of the law at the time gave the defendant fair warning. Id. at 740-41. Defendants do not suggest
that there has been any change since 2000 in the interpretation of the Eighth Amendment as applied
to the claims Boey raises. A prisoner’s right not to be housed under inhumane conditions or denied
medical care was as clearly established at the time of the incidents alleged in the complaint as it is
today. If Boey’s allegations, taken as true, do not amount to a violation of clearly established law,

he has simply failed to state a claim.


Boey alleges that he was again denied medical care in 2002, this time for chronic back pain,
which he alleges resulted from his prior injury. He states that on February 25, 2002, Dr. Kareem
Abdulatoff ordered that he receive physical therapy. After fourteen days without treatment, Boey sent
an emergency grievance to Warden Briley, who rejected it as a non-emergency, Boey also wrote
Stateville Medical Director Kevin Smith and received no response. After 55 days Boey was evaluated
by a physical therapist. The therapist told him that he would need at least twelve treatments, but visits
to the physical therapist would have to be approved by Smith, and Smith wasn’t approving any in
order to save money. Boey has received no physical therapy. On May 26, 2002, Boey alleges his
pain was so severe that he was taken to the eniérgency room. Dr. Tilden "gave no evaluation,”

pronounced him "OK," and sent him back to his cell house. Boey continues to suffer from back pain.

DISCUSSION
I, Standard for a Motion to Dismiss

When the court considers a motion to dismiss, a plaintiff's allegations of fact are taken as true
and all reasonable inferences are drawn in the plaintiff's favor. Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993); Thompson v. Illinois Dept.
of Professional Regulation, 300 F.3d 750, 753 (7th Cir. 2002). Pro se complaints are to be liberally
construed, and a pro se civil rights complaint may only be dismissed if it is beyond doubt that there
is no set of facts under which the plaintiff could obtain relief. McCormick v. City of Chicago, 230
F.3d 319, 325 (7th Cir. 2000).

Il. Principles of Eighth Amendment Liability
An Eighth Amendment claim, whether alleging inhumane conditions of confinement or denial
of medical treatment, has two components. First, the deprivation must be objectively severe:

[E]xtreme deprivations are required to make out a conditions-of- confinement claim.
Because routine discomfort is part of the penalty that criminal offenders pay for their
offenses against society, only those deprivations denying the minimal civilized measure
of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment
violation. A similar analysis applies to medical needs. Because society does not expect


that a complaint may not be amended by a brief in opposition to a motion to dismiss. Thomason v.
Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d
1101, 1107 (7th Cir, 1984).

These rules are not inconsistent. A complaint must give the defendant “fair notice of what the
plaintiff's claim is and the grounds upon which it rests," Leatherman, 507 U.S. at 168 (quoting Conley
v, Gibson, 355 U.S. 41, 47 (1957)), even though every relevant fact need not be included.
Consequently there is a difference between offering additional allegations to substantiate a claim
already outlined in the complaint and adding allegations presenting a new claim, which can only be
done by amending the complaint. See Anzaldua v. Chicago Transit Authority, No. 02 C 2902, 2002
WL 31557622 (N.D.Ill. 2002) (Kocoras, C.J.); Herrara v. North & Kimball Group, No. 01 C 7349,
2002 WL 253019 (N.D.IIl. 2002)(Aspen, C.J.). Boey’s complaint did not give defendants Briley and
Thomas fair notice of a claim that they were liable for his injury because they knew of a serious risk
to Boey’s safety and failed to remedy it. Indeed, the reasonable inference from Boey’s account of
Briley’s questioning him in the healthcare unit following his injury is that Briley did nor know.

Boey’s claim that the discomfort of his cell rather than its dangerousness violated the Eighth
Amendment stands on a different footing. Boey alleges that after the accident he told Briley and
Thomas about conditions in his cell, but was returned to the same cell for thirteen more days before
being released from segregation. For that period of time, at least, these defendants can be charged
with actual knowledge.

Prison conditions may be harsh and uncomfortable, but prisoners are entitled to adequate
shelter. Dixon v, Godinez, 114 F.3d 640, 642 (7th Cir. 1997). Nevertheless, assuming that periodic
flooding of a prisoner’s cell can amount to a sufficiently severe deprivation, not only the severity of
the deprivation but its duration must be considered. Jd, at 643. The complaint alleges that Boey was
subjected to the leaky cell for about two weeks after defendants were told of the problem. This is not
long enough for such a deprivation to rise to the level of cruel and unusual punishment. The court
accordingly grants defendants’ motion with respect to Boey’s claim that defendants inflicted cruel and

unusual punishment by not repairing his segregation cell or removing him from it after his injury.


Minute Order Form (06/97)

_ United States District Court, Northern District of Illinois
Name of vse  Jodge sage GEORGE M. MAROVICH sing penal Suan
CASE NUMBER 02 C 4693 DATE | O-{7- O03
CASE Charles E, Boey (IDOC # B-45037) v. Kenneth R. Briley, et al.
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.)
i
DOCKET ENTRY:
b im) Filed motion of [ use listing in “Motion” box above.]
(2) 0 Brief in support of motion due
18) o Answer brief to motion due. . Reply to answer brief due___.
(4) a Ruling/Hearing on_____s set for___at
5) o Status hearing{held/continued to] [set for/re-set for]on___ set for__—__att
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__———s at.
(7) oO Trial{set for/re-set for]on __at
8) a {Bench/Jury trial] [Hearing] held/continued to__at
9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

O FRCP4(m) =O General Rule 21 = FRCP41(a)(1) 0 FRCP41(a){2).

10) | [Other docket entry] Enter Memorandum Opinion and Order, Defendants’ motion to dismiss [23-1] is
granted in part and denied in part. Defendant Thomas is dismissed. Defendants shall answer the complaint within
thirty days of the date of this order. The clerk is directed to correct the names of defendants on the court’s docket,
correcting "Jonathen Russell" to “Jonathan Russell," "S$. Thompson" to "Sandy Thompson," "Captain Waynescott" to
“Robert Wainscott," "Sargent Grant” to "Michael Grant," "Mike Bosolowski" to "Michael Borkowski" and "Med Tech
Contonato" to "Robert Cattaneo." Plaintiff's renewed motion for appointment of counsel [29-1] is granted; the court
will appoint counsel by separate order. Plaintiff's motion for appointment of counsel [42-1] is denied as moot.

11) | For further detail see order attached to the original minute order.
INo notices required, advised in open court.

INo notices required. otros

(OCT 2 0 aaa

[Notices mailed by judge's staff.

INotified counsel by telephone.

Y _ Pocketing to mail notices.

{Mail AO 450 form.
= punod iot 11810 ‘sr

(Copy to judge/magistrate judge.

Lourzoom one Hd LI 443069

Kleputy’s

hinitials a, ne te
"Date/time jredived in
central Clerk’s Office



t

He stated that on "this same day in question," presumably November 27, 2000, he went for an EKG
{electrocardiogram], but Boey had understood from what a nurse had told him that he was supposed
to receive an EEG [electroencephalogram]. Boey discovered there was no record of his previous
blackouts, which med-techs should have documented. Boey stated he had been scheduled for a blood
test, but pleaded, "there’s nothing wrong with my heart or blood. It’s something in my head. This
has been an ongoing problem. I really need help!" Boey also sent Briley a letter dated December 9,
complaining that his previous injury had not been documented in his medical file.

Briley’s response, dated December 18, 2000, stated that the grievance "did not include elements
which require it to be heard on an emergency basis." The letter, which was probably a form
response, did not state what elements were missing from Boey’s grievance. JDOC regulations define
an emergency as "a substantial risk of imminent personal injury or other serious or irreparable harm
to the offender." 20 Ill. Admin. Code § 504.840(a). Sudden loss of consciousness is both a symptom
to be taken seriously and presents a serious risk of injury in itself. A maximum-security prison has
walls, floors and stairs of concrete and steel; it is not a safe place to fall down suddenly. Boey had
been seen by a physician on November 27, but this had been before his latest blackout, and a med-
tech, not a physician, had decided Boey needed no further evaluation or treatment.

Prison administrators necessarily rely on the medical judgment of health care professionals.
Liability under § 1983 requires actual knowledge of a serious risk; if a trained professional opines that
no risk exists, a layperson normally cannot be held to know that it does. "Except in the unusual case
where it would be evident to a layperson that a prisoner is receiving inadequate or inappropriate
treatment, prison officials may reasonably rely on the judgment of medical professionals." Bond v,
Aguinaldo, 228 F.Supp.2d 918, 920 (N.D.IIl. 2002)(Bucklo, J.)(citations omitted).

Taking Boey’s allegations as true and drawing reasonable inferences in his favor, this was such
an unusual case, where it should have been apparent that medical judgment had not been exercised.
Boey stated that he had lost consciousness, not for the first time, and med-techs had refused his
requests to be seen by a physician for reasons unrelated to any medical evaluation. Boey claimed that

his blackouts, although witnessed by others, were not being documented in his medical records. Briley

i


have been harmed by being left untreated, and there may have been nothing a physician could have
done. Nevertheless, this issue was not raised by the motion to dismiss, Boey has had no opportunity
to respond, and it is more properly addressed in the context of a motion for summary judgment.

Defendants’ motion is denied as to defendants Russell, Smith, Wainscott, Cattaneo and Borkowski.

V. Personal Involvement of Defendants Briley and Thomas

Defendants Briley and Thomas contend that Boey has not stated a claim against them because
he is attempting to sue them based solely on their supervisory positions. They deny that they were
personally involved in any violation of Boey’s constitutional rights, claiming that Boey "never alleges
that he advised Defendants Briley or Thomas about any conditions that he is complaining about until
after the alleged incident." Def. Br. at 5.

Defendants are correct that liability under § 1983 cannot be based on supervisory responsibility
alone, or even negligent supervision; the supervisor must have known about the conduct and facilitated
it, condoned it, or recklessly closed his eyes to it. Chavez v. Illinois State Police, 251 F.3d 612, 651
(7th Cir. 2001). The court agrees that Thomas has no liability for the other defendants’ alleged denial
of medical care. As cell house superintendent, Thomas did not have had authority over medical
personnel. His telling Boey, "I’m the superintendent of I-house segregation and the doctors will take
care of you,” did not make him responsible for monitoring Boey’s treatment from then on.

Warden Briley presents a different case. Briley, of course, had no involvement in other
defendants’ mistreatment of Boey on October 4, 2000. But Briley’s subsequent involvement in Boey’s
medical care was not limited to his casual encounter with Boey in the health care unit on October 5,
2000, as defendants’ motion suggests. Although Boey’s emergency grievance of December 9, 2000,
is mentioned in defendants’ statement of facts, Def. Br. at 3, it is entirely ignored in the argument for
dismissal based on Briley’s supposed lack of personal involvement.

The grievance, Cmplt. Exh. 12, informed Briley that Boey had lost consciousness on December
4, 2000, for the third time since his injury, and feared it would happen again. Boey pleaded that the

fact that he had seen a doctor on November 27, 2000, shouldn’t prevent his seeing @ doctor again.

10

a


Ill. Conditions in Boey’s Cell

Boey alleged that the floor of his cell became wet when it rained because the ceiling leaked and
the window could no be closed. It appears from Boey’s brief in opposition to defendants’ motion that
he asserts two separate claims based on these allegations: that the wet floor represented an
unreasonable risk to his safety, causing his injury, and that being forced to live with a wet floor,
broken window and leaky ceiling amounted to cruel and unusual punishment in itself.

A wet floor does not present a sufficiently substantial risk of serious injury to give rise to
Eighth Amendment liability for an accidental fall. ‘A wet floor is a hazard, and a fall can result in
serious injury, but people both in and out of prison routinely and successfully cope with wet floors.
A defendant's ignoring this kind of risk will support a negligence claim, but ignoring a risk that can
be avoided with a bit of additional care on the plaintiff's part is not the sort of "criminal recklessness"
required for an Eighth Amendment violation. See Farmer, 511 U.S. at 837, 839-40 (equating
deliberate indifference with criminal recklessness); Bagola v. Kindt, 131 F.3d 632, 646 (7th Cir.
1997)("deliberate indifference is akin to criminal recklessness").

Even assuming that the wet floor presented a sufficiently substantial risk, a defendant could be
liable for Boey’s injury on this theory only if he had been aware of the risk, was able to remedy the
situation before Boey fell, and failed to do so. Boey alleges that after the accident he informed
defendants Briley and Thomas of what happened and filed formal grievances. He does not allege in
the complaint that any of the defendants knew of the problem before the accident.

In his brief in opposition to defendants’ motion, Boey points to a statement by inmate Jerry
Sicka, attached as an exhibit to the complaint, stating that Sicka had previously occupied the cell and
complained of flooding. Nevertheless, while exhibits are treated as part of the complaint, a statement
by Sicka contained in an exhibit cannot be taken as an allegation by Boey.

Nor is it enough for Boey to have belatedly alleged in his brief that Briley and Thomas knew
of the water problem. In response to a motion to dismiss, a plaintiff may assert new allegations
consistent with the allegations of the complaint to show that he is able to state aclaim. Help at Home,

Inc., v. Medical Capital, LLC., 260 F.3d 748, 752-53 (7th Cir. 2002). Nevertheless, it is also settled


Boey said he couldn’t, Torellio took hold of Boey’s legs and threw them onto the table. As Boey
screamed in pain, Torellio grabbed Boey’s injured neck and did the same to Boey’s upper body.

Hearing Boey’s screams, defendant John Thomas, superintendent of the segregation unit, came
into the room and asked Boey what had happened. Boey told him he had slopped on the floor and hit
his head and neck on the desktop in his cell. Thomas told Boey, "calm down, I’m the superintendent
of I-house segregation and the doctors will take care of you."

Dr. Tilden then examined Boey, pronounced him "OK," and directed that he be taken to the
bullpen. Boey, still in pain and feeling dizzy, protested that he was not "OK," but was taken to the
bullpen anyway. In the bullpen, Boey blacked out and hit his head on the wall. Other inmates called
for help. A med-tech arrived and put an inhalant under Boey’s nose, and Boey regained
consciousness, Boey was taken back to the health care unit on a stretcher and was admitted.

The next day, October 5, 2000, “while being forced to walk to emergency room for another
evaluation," Boey encountered Warden Briley and told him of his injury. Briley asked why the floor
of his cell had been flooded; Boey told him his cell floods when it rains because the ceiling leaks and
the window can’t be closed. Briley asked why, if Boey was injured, he wasn’t wearing a neck brace,
to which Boey responded, "if I’m not injured, why am I talking to you here in Healthcare?" Briley
said, "You'll be all right," and walked away.

Boey was released from the healthcare unit that day and taken back to I-House. He was
supposed to have been placed in a different cell, but defendant Sergeant Grant took him from the
holding cell and compelled him to return to the same cell in which he had been injured. The next day,
October 6, Boey submitted a grievance complaining of the conditions in the cell, and also sent a letter
to Superintendent Thomas. Boey received no response and no repairs were made to the cell prior to
his release from segregation on October 18, 2000.

On December 7, 2000, Boey suffered another blackout, this time while walking in a tunnel
between buildings. Defendant med-tech Michael Borkowski revived Boey with an inhalant.
Borkowski began to question Boey, but when he learned Boey’s name he broke off abruptly, saying
"I heard of you, let’s go back to H-House." Even though the officer escorting Boey told Borkowski


ALLEGATIONS OF THE COMPLAINT

Boey alleges that on October 4, 2000, at about 6:30 a.m., he was awakened by a correctional
officer bringing breakfast to his cell in the segregation unit at Stateville. He climbed down from his
bunk and slipped on the wet floor, hitting his head and neck against the steel desk in his cell. Boey
screamed in pain, and the officer delivering breakfast called the correctional captain on duty (whom
Boey has sued as "Captain John Doe") and asked that a "med-tech” (medical technician) be sent to
Boey’s cell.

Two med-techs, defendants Jonathan Russell and Sandy Thompson, ‘came to Boey’s cell and
asked him what happened and where he hurt. Boey, still lying on the wet floor, told them he couldn’t
move; he tried to move when they told him to do so, but it caused him severe pain. Captain Doe
asked the med-techs what they were going to do. Russell responded, "I’m stepping out [of] the cell,”
and he and Thompson left. Captain Doe remained in the cell with Boey, who was still lying on the
floor. After a few minutes had passed and the med-techs had not returned, Doe exclaimed, "what the
hell is taken [sic] them so long!" Doe then locked the cell and left Boey lying on the floor.

About twenty minutes later, Doe and the med-techs returned. They ordered Boey to get up,
saying there was nothing wrong with him, and “we can’t help you if you don’t help yourself." Boey
screamed in pain and said he couldn’t get up. Continuing to say that Boey was “all right,” Russell
started to pull Boey to his feet, but finally he put Boey back down on the floor and a stretcher was
brought.

The elevator in the segregation unit was too small to accommodate the stretcher, but Russell,
together with Thompson and defendant Captain Wainscott, attempted to fit the stretcher into the
elevator by tilting the stretcher, causing Boey to slip off and hit his head on the floor of the elevator.
Wainscott then suggested taking Boey down the stairs instead, but Russell insisted on using the
elevator.

When Boey arrived at the emergency room at the Stateville health care unit, defendant Dr.
Andrew Tilden told defendant med-tech Torellio to move Boey from the stretcher to an examination
table. After Dr. Tilden had left the room, Torellio told Boey to move himself to the table. When


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOorve TED

OCT 2 9 2093

CHARLES E. BOEY, Jr.,
Plaintiff,

v.
No, 02 C 4693
KENNETH BRILEY, JONATHAN RUSSELL,
SANDY THOMPSON, ROBERT WAINSCOTT,.
DR. ANDREW TILDEN, MED TECH
TORELLIO, MICHAEL GRANT, MICHAEL
BORKOWSKI, ROBERT CATTANEO,

LOU MILLER, DR. KEVIN SMITH, and
CAPTAIN JOHN DOE,

Judge George M. Marovich

wwe mre were

Defendants.1/

MEMORANDUM OPINION AND ORDER

Plaintiff Charles E. Boey, a prisoner in the custody of the Illinois Department of Corrections
(IDOC), filed a pro se complaint under 42 U.S.C. § 1983 alleging that defendants inflicted cruel and
unusual punishment upon him in violation of the Eighth Amendment while he was incarcerated at
Stateville Correctional Center. Defendant Kenneth Briley, the warden of Stateville, joined by
defendants Russell, Thompson, Wainscott, Thomas, Grant, Borkowski and Cattaneo, have moved to
dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief
may be granted.” For the reasons set forth below, the motion to dismiss is granted in part and
denied in part.

’ The clerk is directed to correct "Jonathen Russell" to "Jonathan Russell," "S. Thompson" to "Sandy
Thompson," "Captain Waynescott" to "Robert Wainscott,” "Sargent Grant" to "Michael Grant," "Mike
Bosolowski" to “Michael Borkowski" and "Med Tech Contonato" to "Robert Cattaneo" to conform to the
spellings of the defendants’ names given in counsel’s appearance. This opinion uses the corrected spellings.

¥ Two defendant, Drs. Smith and Tilden, have separately answered the complaint. One unknown-named
defendant, "Captain John Doe," remains unnamed and two named defendants remain unserved. On September
10, 2002, the U.S. Marshal returned summonses unserved for defendants Lou Miller and "Med Tech Torellio,"
the USM-25 forms indicating that Miller was deceased and there was no employee named Torellio at Stateville.

US”



ry

did not have to accept Boey’s statements as true, but he could have had a subordinate investigate them.
According to the complaint, Briley did nothing except tell Boey, more than a week later, to put his
grievance back in the hopper for routine processing.

This sufficiently alleges deliberate indifference. A prisoner cannot hold the warden responsible
for a subordinate’s constitutional violation simply by demanding immediate intervention. Until he or
she has evidence to the contrary, a warden can assume that subordinates are properly addressing
problems as they arise. Nevertheless, if a warden could always assume that subordinates were
handling problems correctly, there would be no need for the emergency grievance procedure -- and
little need for the warden. If subordinates have failed to act to remedy a constitutional violation, a
warden’s knowing failure to intervene amounts to participation in the violation. “[A] prison official's
knowledge of prison conditions learned from an inmate’s communications can, under some
circumstances, constitute sufficient knowledge of the conditions to require the officer to exercise his
or her authority and to take the needed action to investigate and, if necessary, to rectify the offending
condition." Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996).

Boey’s grievance was refiled on January 8, 2001, and rejected on January 29 by Boey’s
counselor, who stated that Boey had received appropriate treatment. Boey does not allege that he
appealed again put the grievance before Briley, or needed to. As in the case of the med-techs’ refusal
to take Boey to the emergency room for evaluation, it may be that Briley’s ignoring Boey’s emergency
grievance caused him no injury, but, again, defendants failed to raise the issue.

The complaint does not allege any basis for holding Briley responsible for Boey’s being denied
physical therapy in 2002. Boey states in his brief that after physical therapy had been prescribed on
February 25, 2002, he waited 14 days and then filed an emergency grievance, which Briley declined
to treat as an emergency. Pl. Br. at 6. This was a reasonable response to a 14-day delay in treating

Boey’s back pain, and Boey does not allege any further involvement by Briley.

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