NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 2, 2008*
Decided April 2, 2008
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐2929
DENNIS P. GLICK, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 06‐586‐GPM
ROGER E. WALKER, JR., et al., G. Patrick Murphy,
Defendants‐Appellees. Judge.
O R D E R
Illinois inmate Dennis Glick, a sex offender formerly housed in the Menard
Correctional Center, filed this suit against several prison officials claiming that they were
deliberately indifferent toward his mental health needs and also the risks of harm posed by
*
Appellees notified this court that they were not served with process in the district
court and would not be filing a brief or otherwise participating in this appeal. After
examining the appellant’s brief and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the appellant’s brief and the record. FED. R.
APP. P. 34(a)(2).
No. 07‐2929 Page 2
one cellmate’s smoking and another cellmate’s threat to kill him. He also claims that prison
officials retaliated against him for filing grievances, in violation of the First Amendment,
and that they did not allow him to participate in a mental health program, in violation of
the Americans with Disabilities Act. The district court screened his complaint, see 28 U.S.C.
§ 1915A, and dismissed it for failure to state a claim. We vacate the judgment and remand
the case for further proceedings on all claims except the ADA claim, on which we affirm the
dismissal.
For purposes here we accept as true the allegations in Glick’s complaint. See Westefer
v. Snyder, 422 F.3d 570, 574 (7th Cir. 2005). According to Glick, in May 2005 a prison
psychiatrist diagnosed him with a mental illness and ordered that he take medication and
attend group therapy. Five months later, after learning that his security status prohibited
him from participating in group therapy, Glick filed a grievance, requesting that his status
be adjusted so that he could attend therapy. His grievance was denied, so he wrote to
several Department of Corrections administrators, including Director Roger Walker, again
requesting that his security status be lowered. In response he was told that he could not
participate in group therapy because of his security status.
During this time, Glick was admitted to the hospital at Menard because he had chest
pain and trouble breathing, and he was diagnosed with emphysema. Upon returning to his
cell after his stay in the hospital, he filed an emergency grievance, complaining that his
cellmate smoked, which increased his chest pain, and he requested a transfer. Correctional
counselor James Alms denied the request, and a month later grievance officer Tyrone
Murray also denied the request, and warden Alan Uchtman concurred. Glick appealed to
Walker, but the appeal was denied.
Soon after, in February 2006, Glick also reported that a new cellmate had threatened
to kill him. Glick wrote two letters to a social worker at Menard, explaining that the
cellmate had said that he had been charged with gang involvement, had been transferred
from another prison for threatening to kill a sex offender, and had stabbed two inmates
many years ago. Glick also said that this cellmate threatened his life and said he would “do
something” while Glick was asleep. Glick explained that these statements, combined with
the fact that Glick is a sex offender and has a mental illness, left him vulnerable enough to
justify a transfer. When Glick met with the social worker a month later, she told him that
she had given his letters to an officer in Internal Affairs, but no one from Internal Affairs
followed up with Glick. In the meantime, Glick’s cellmate did attack him; he pushed
Glick’s head against the wall, causing it to bleed, bit Glick’s arm as Glick attempted to
prevent him from grabbing a weapon, and threatened to stab Glick with a pencil. Glick told
the social worker about the attack and filed an emergency grievance, which warden
Uchtman denied.
No. 07‐2929 Page 3
Less than a month later, Glick was transferred to Pontiac Correctional Center as part
of a routine annual transfer. At Pontiac an Internal Affairs officer interviewed Glick about
the attack by his former cellmate, and Glick signed a written statement describing it. He
was then removed from protective custody against his wishes, and a month later he was
transferred to the general population at Stateville Correctional Center. From Stateville, he
filed an appeal of the denial of his grievance about the attack, but the appeal was denied as
untimely by Melody Ford, a member of the Administrative Review Board.
Glick filed suit in July 2006, claiming that prison officials were deliberately
indifferent to (1) his mental health needs, (2) the substantial risk of harm from his cellmate’s
smoking, and (3) the substantial risk of harm posed by the cellmate who threatened to, and
did, attack him. He also claimed that officials (4) retaliated against him for filing grievances
when they transferred him out of protective custody at Pontiac and then to Stateville and (5)
violated Title II of the ADA by denying him access to mental health services. The district
court, however, read his complaint as making only three claims—deliberate indifference to
Glick’s mental health needs, retaliation, and violation of the ADA. It recognized that mental
illness can be considered a serious medical need but held that Glick failed to state a claim
because he did not “name any defendant personally responsible for denying him
treatment.” Similarly, the court held that Glick did not state a retaliation claim because, as it
interpreted the complaint, Glick did not say who retaliated against him or what the specific
retaliatory act was. Finally, the court dismissed Glick’s ADA claim, reasoning that the ADA
does not allow Glick to sue state officers in federal court. The district court failed to
mention anything about Glick being exposed to second‐hand smoke and the attack by his
cellmate. On appeal Glick argues that all of his claims, including the ones not addressed by
the district court, should have survived screening.
We review de novo a dismissal under § 1915A for failure to state a claim. Westefer,
422 F.3d at 574. To satisfy the notice‐pleading requirements of Federal Rule of Civil
Procedure 8(a)(2), a complaint need only include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); see Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1964 (2007). A plaintiff must “provide the grounds of his
entitlement to relief” by saying enough to “raise a right to relief above the speculative
level,” Twombly, 127 S. Ct. at 1964‐65 (internal quotation marks, brackets, and citation
omitted), though “[s]pecific facts are not necessary,” Erickson v. Pardus, 127 S. Ct. 2197, 2200
(2007). See Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir.
2007). Pro se complaints are construed liberally and held to less‐exacting standards than
those drafted by counsel. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).
We begin with the two claims the district court did not address—that prison officials
were deliberately indifferent to the risks of harm Glick faced from one cellmate’s smoking
No. 07‐2929 Page 4
and another cellmate’s threat to kill him. Although Glick separately identified these claims
in his complaint and devoted five numbered paragraphs to each claim, the district court did
not mention them in its order dismissing the complaint. We hold that Glick has alleged
enough to state a claim on both of these claims, and we vacate their dismissal.
First, Glick’s complaint includes enough detail to state an Eighth Amendment claim
with regard to the second‐hand smoke. Exposure to second‐hand smoke can give rise to
two types of Eighth Amendment claims—one for present injury and one for future injury.
To state a claim based on present injury, an inmate must allege that prison officials knew of
and disregarded “serious existing health problems” caused by the second‐hand smoke.
Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). If the inmate has a serious
respiratory condition that low levels of second‐hand smoke may aggravate, the prison must
provide a non‐smoking environment. See Powers v. Snyder, 484 F.3d 929, 932 (7th Cir. 2007);
Alvarado, 267 F.3d at 653. To state a claim based on future injury, an inmate must allege that
prison officials knew of and disregarded exposure to levels of second‐hand smoke that
“pose an unreasonable risk of serious damage to his future health.” Helling v. McKinney,
509 U.S. 25, 35 (1993); see Alvarado, 267 F.3d at 651. Glick alleges that he was diagnosed with
emphysema and suffered increased chest pain due to his cellmate’s smoking, and that
defendants Alms, Murray, Walker, and Ford knew of his diagnosis and complaint and did
nothing to alleviate his pain. These allegations are enough to state a claim based on a
present injury, see Powers, 484 F.3d at 932‐33; Alvarado, 267 F.3d at 650‐51, and also based on
a potential future injury, see Lehn v. Holmes, 364 F.3d 862, 864, 872 (7th Cir. 2004); Alvarado,
267 F.3d at 649‐51.
Second, Glick’s complaint included enough detail to state a claim that prison officials
violated his Eighth Amendment rights by not protecting him from the cellmate who
attacked him. To state a claim for failure to prevent harm, the inmate must allege that
prison officials knew of and disregarded a “substantial risk of serious harm,” Farmer v.
Brennan, 511 U.S. 825, 834, 837 (1994); see Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005),
and that harm did occur, see Babcock v. White, 102 F.3d 267, 270‐72 (7th Cir. 1996). Glick
alleges that he gave a prison social worker two letters detailing the threats his cellmate
made and his concerns that, as a sex offender and mental health patient, he would be a
likely target for his violence‐prone cellmate, all of which sufficiently suggests that he faced
“a substantial risk beforehand that . . . serious harm might actually occur.” Brown, 398 F.3d
at 910‐11 (recognizing that risk is substantial when inmate threatened by another inmate
with “known ‘propensities’ of violence toward” particular class of people). He also alleges
that the social worker told him she had given his letters to Internal Affairs, but he says he
heard nothing from Internal Affairs and, subsequently, his cellmate beat him badly enough
to cause his head to bleed. Glick states enough to satisfy the serious‐harm requirement. See
Farmer, 511 U.S. at 834 (reasoning that “[b]eing violently assaulted in prison is simply not
No. 07‐2929 Page 5
part of the penalty” (internal quotation marks and citation omitted)); Brown, 398 F.3d at 910‐
11 (holding that severe beating by fellow resident satisfied pleading standard for serious
harm).
Glick’s allegations also sufficiently allege that Internal Affairs officer “John
Doe”—and perhaps others who might be identified through discovery—acted with
deliberate indifference.1 According to Glick’s allegations, this defendant knew of Glick’s
cellmate’s threats and knew of the cellmate’s prior threats against other sex offenders. See
Haley v. Gross, 86 F.3d 630, 642‐43 (7th Cir. 1996) (upholding jury verdict for inmate because
jury could reasonably find defendants deliberately indifferent when inmate had told them
of problems with cellmate several times but they did nothing). On remand, Glick must be
given an opportunity to identify the “John Doe” in Internal Affairs. See Billman v. Ind. Dep’t
of Corrs., 56 F.3d 785, 789 (7th Cir. 1995) (“If a prisoner makes allegations that if true indicate
a significant likelihood that someone employed by the prison system has inflicted cruel and
unusual punishment on him, and if the circumstances are such as to make it infeasible for
the prisoner to identify that someone before filing his complaint, his suit should not be
dismissed as frivolous.”).
Turning to the claims the district court did address, we hold that Glick’s allegations
that prison officials refused to let him participate in group therapy ordered by the prison
psychiatrist state a deliberate‐indifference claim. The court dismissed this claim only
because Glick did not name as a defendant the official personally responsible for denying
his treatment. But an inmate’s “initial inability to identify” who caused his deprivation
alone is not a proper ground for dismissal, as long as allegations state a claim against some
identifiable person, Billman, 56 F.3d at 789; see also Donald v. Cook County Sheriff’s Dep’t, 95
F.3d 548, 555 & n.3 (7th Cir. 1996) (collecting cases), which Glick’s allegations do. To state a
claim in this context, an inmate need allege only that a prison official responded with
deliberate indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
To prevail an inmate must show that his medical condition is “objectively, sufficiently
serious” and that the officials knew of and disregarded “an excessive risk to inmate health
or safety.” Farmer, 511 U.S. at 834, 837.
Glick alleges that he was diagnosed with a mental illness that needed to be treated,
which we have recognized as a serious medical need. See Sanville v. McCaughtry, 266 F.3d
724, 734 (7th Cir. 2001); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983). He also alleges
that defendants Ford and Walker knew about his diagnosis and put his health at risk by not
1
Glick did not name the social worker to whom he gave his letters as a defendant in
his complaint.
No. 07‐2929 Page 6
doing anything to get him the treatment a psychiatrist deemed necessary. See Reed v.
McBride, 178 F.3d 849, 854 (7th Cir. 1999); Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.
1996). Glick alleges, however, that prison officials told him that his security status
prevented him from participating in group therapy. Officials do not act with deliberate
indifference if they respond reasonably to an inmate’s medical needs, see Guzman v. Sheahan,
495 F.3d 852, 857 (7th Cir. 2007); Johnson v. Doughty, 433 F.3d 1001, 1010‐11 (7th Cir. 2006),
but we cannot determine at this stage whether the officials’ reliance on a policy prohibiting
inmates with Glick’s status from participating in group therapy was a reasonable response
because the policy is not in the record and we have not heard the prison’s rationale for it, cf.
Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir. 2006).
We also vacate the district court’s dismissal of Glick’s claim that prison officials
retaliated against him for filing grievances. To state a claim for retaliation, an inmate must
allege enough to put defendants on notice so that they can file an answer, which generally
includes specifying the retaliatory act and the protected activity that motivated the
defendants. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); see also McElroy v. Lopac, 403
F.3d 855, 858 (7th Cir. 2005); Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005). Although
the district court concluded that Glick had not specified the retaliatory conduct, his
complaint says that he received a “retaliatory transfer out of protective custody” at Pontiac
and a transfer to Stateville because of his complaints to prison officials. Thus the district
court erred in holding that Glick failed to allege the retaliatory act. Additionally, the district
court dismissed Glick’s claim because, it reasoned, he did not specify who retaliated against
him and that even if the retaliation claim was against defendant Walker, to whom Glick sent
grievances about being denied group therapy, Glick had not “made the necessary
connection to show that Defendant Walker was personally responsible for denying him any
constitutional rights.” But Glick was not required to prove that connection at the pleading
stage; he need only “give enough detail to illuminate the nature of the claim and allow
defendants to respond.” George v. Smith, 507 F.3d 605, 608 (7th Cir. 2007).
Furthermore, although Glick’s complaint is not specific about which grievances
constitute his protected activity, it may include the grievances based on second‐hand smoke
and the attack by his cellmate, which the district court did not address. Defendants Ford,
Murray, Alms, Uchtman, and Walker were involved in denying those grievances and could
be possible defendants on the retaliation claim. And, again, we read pro se complaints from
inmates liberally and will not uphold a dismissal based on failure to name the proper
defendant as long as the allegations otherwise state a claim. See Donald, 95 F.3d at 555.
Although the facts may ultimately show that none of the defendants who responded to
Glick’s grievances were responsible for his transfers, Glick has pleaded enough to state a
retaliation claim.
No. 07‐2929 Page 7
Finally, we affirm the district court’s dismissal of Glick’s ADA claim. The district
court held that Glick could not sue the prison officials in federal court because Congress did
not waive Eleventh Amendment immunity for private suits under the ADA. See Erickson v.
Bd. of Governors of State Colls. & Univs. for Ne. Ill. Univ., 207 F.3d 945, 952 (7th Cir. 2000);
Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir. 2000). The district court is correct insofar as
Glick is seeking damages. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001).
But Glick can sue these officials in their official capacity for prospective injunctive relief, see
Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003), which he did.
Yet, we affirm the dismissal of this claim because Glick has failed to state a claim under
Title II of the ADA. To state such a claim, the plaintiff must allege that he was excluded
from participation in a public entity’s program because of his disability. See 42 U.S.C. §
12132; Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir. 2006); McGary v.
City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). Glick has pleaded himself out of court
because he alleges that he was denied access to group therapy because of his security status,
not because of any disability. See Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999)
(affirming dismissal of inmate’s challenge to denial of access to jail program based on
refusal to submit to HIV test because inmate alleged he was not HIV‐positive and policy
applied to all inmates).
For the foregoing reasons, we VACATE the dismissal of Glick’s claims that prison
officials were deliberately indifferent to his mental health needs and to the risks of harm
posed by one cellmate’s smoking and another cellmate’s threat to kill him as well as Glick’s
claim that prison officials retaliated against him for filing grievances, and we REMAND the
case for further proceedings. We take no position about whether Glick’s claims will
ultimately be successful, but we recognize that he has alleged enough to state claims
regarding all of these allegations. We AFFIRM the dismissal of Glick’s ADA claim.