REPORT AND RECOMMENDATION

REONA J. DALY, Magistrate Judge.

The matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge David R. Herndon pursuant to 28 U.S. C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion to Dismiss (Doc. 122) filed by Defendant Wexford Health Sources, Inc., the Motion to Dismiss (Doc. 125) filed by IDOC Defendants, and the Motion to Dismiss filed by Defendant Siddiqui (Doc. 130). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and Defendants' motions be GRANTED.

FINDINGS OF FACT

On August 13, 2018, Plaintiff, through counsel, filed a Third Amended Complaint pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was incarcerated at Menard Correctional Center ("Menard"). Specifically, Plaintiff alleges Defendants failed to comply with the Americans with Disabilities Act ("ADA") and were deliberately indifferent to his serious medical needs. Plaintiff proceeds on the following claims:

Defendant Wexford filed a Motion to Dismiss Count I (Doc. 122) arguing it is not a proper party under the Americans with Disabilities Act (ADA) or the Rehabilitation Act. IDOC Defendants filed a Motion to Dismiss (Doc. 125) arguing Count I should be dismissed against the individual Defendants because they are not proper parties under the ADA or Rehabilitation Act. IDOC Defendants Baldwin, Lashbrook, Hawkins, Walls, Crain and Okley argue Count II should be dismissed as Plaintiff failed to allege personal involvement of any Defendant. Defendant Siddiqui filed a Motion to Dismiss (Doc. 13) arguing he is not a proper party under the ADA or Rehabilitation Act. Plaintiff filed Responses (Docs. 133-136) asserting he properly pled facts that his rights were violated under the ADA and Rehabilitation Act and that proper medical treatment was denied him.

CONCLUSIONS OF LAW

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis, but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

Count I

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act prohibits any agency that receives federal funds from excluding, subjecting to discrimination, or denying the benefits of any of their programs to otherwise qualified individuals with disabilities. 29 U.S.C. § 794(a). Failure to make reasonable accommodations to ensure participation in the public entity's programs or services by a person with a disability qualifies as "discrimination." 42 U.S.C. § 12112(b)(5)(A); Wisc. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006).

In the prison context, a plaintiff can make out a prima facie case of discrimination under both the ADA and the Rehabilitation Act by showing: (1) he is a qualified person (2) with a disability and (3) the Department of Corrections denied him access to a program or activity because of his disability. Jaros v. Illinois Dep't of Corr., 684 F.3d 667, 672 (7th Cir. 2012), citing 29 U.S.C. § 705(2)(B); Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737, 746 (7th Cir .2006); Foley v. City of Lafayette, 359 F.3d at 928 (7th Cir. 2004); Grzan v. Charter Hosp. of Nw. Ind., 104 F.3d 116, 119 (7th Cir.1997). Refusing to make reasonable accommodations is tantamount to denying access. Although the Rehabilitation Act does not expressly require accommodation, "the Supreme Court has located a duty to accommodate in the statute generally." Id. In the prison setting, accommodations should be judged in light of overall institutional requirements which include safety, security, and feasibility. Love v. Westville Correctional Center, 103 F.3d 558, 561 (7th Cir. 1996).

Title II defines a "public entity" as "(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of Title 49)." 42 U.S.C. § 12131(1). As a general rule, there is no personal liability under Title II of the ADA or the Rehabilitation Act. Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 644 (7th Cir. 2015). The only proper defendant in a claim under the ADA and/or Rehabilitation Act is the state agency (or a state official acting in his or her official capacity); employees of the DOC are not amendable to suit under either Act. See Jaros v. Ill. Dep't of Corr., 684 F.3d 667, 672 (7th Cir. 2012); Legore v. Allsup, No. 16-1137, 2017 WL 131578, *4 (S.D. Ill. Jan. 13, 2017) (citing 29 U.S.C. § 794(b); 42 U.S.C. § 12131).

Plaintiff's claim under Title II of the ADA fails as to Defendant Wexford because it is not a public entity. The majority of courts have rejected the argument that a private entity becomes an "instrumentality of the State" merely by contracting with a public entity for the provision of some service. See Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010) ("[A] private corporation is not a public entity merely because it contracts with a public entity to provide some service."); Maxwell v. S. Bend Work Release Ctr., 787 F.Supp.2d 819, 821 (N.D. Ind. 2011) (privately-owned company that contracted with the Indiana Department of Corrections was not a public entity under Title II); Hahn v. Linn County, 191 F.Supp.2d 1051, 1055 n. 2 (N.D. Iowa 2002) ("Title II limits its liability to a public entity and . . . a contractual relationship between a private corporation and a county government does not transform the private corporation into a `public entity.'"). Plaintiff's ADA and/or Rehabilitation Act claim against Wexford should therefore be dismissed.

Likewise, Plaintiff's claim under Title II of the ADA fails as to the individual Defendants. As the Court stated in its previous Order (Doc. 15), the only proper Defendant in Plaintiff's Count I ADA and/or Rehabilitation Act claim is the Illinois Department of Corrections (Director John Baldwin, in official capacity only). Plaintiff's Count I against Defendants Baldwin (in individual capacity), Lashbrook, Hawkins, Walls, Siddiqui, Crain, and Okley shall be dismissed.

Count II

Defendants Baldwin, Lashbrook, Hawkins, Walls, Crain, and Okley assert Plaintiff has failed to allege any specific actions taken by any of the defendants. Plaintiff's Third Amended Complaint alleges that "Defendants in which Count II is directed were and are deliberately indifferent to plaintiff's risk of serious harm because of lack of treatment, wrong treatment and incorrect doses of medicine and failure to train staff." Plaintiff further alleges "Defendant(s) policies, practices, custom, acts and omission place plaintiff at unreasonable, continuing and foreseeable risk of exacerbating his already serious medical issues." Defendants argue Plaintiff does not allege that Defendants had firsthand knowledge of any alleged defects or that they actually participated in the alleged unconstitutional behavior. Defendants argue Plaintiff's Count II claim should be dismissed because if fails to identify any particular role of any defendant or any specific act or omission of any specific defendant.

An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation. Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986); see also McBride v. Soos, 679 F.2d 1223, 1227 (7th Cir.1982); Adams v. Pate, 445 F.2d 105, 107 (7th Cir.1971). "Without a showing of direct responsibility for the improper action, liability will not lie against a supervisory official. A causal connection, or an affirmative link, between the misconduct complained of and the official sued is necessary." Wolf-Lillie, 699 F.2d at 869. In short, "[i]ndividual liability for damages under section 1983 is predicated upon personal responsibility." Schultz v. Baumgart, 738 F.2d 231, 238 (7th Cir.1984).

Plaintiff has brought this claim against numerous Defendants. Throughout Count II, he alleges that the defendants failed to provide treatment, provided wrong treatment, and distributed incorrect doses of medicine and failed to train staff. Regrettably, Plaintiff does not specifically identify any person who took, or failed to take, these actions. He has not identified any single defendant in connection with his claims in Count II. The reason that plaintiffs are required to associate specific defendants with specific claims is so these defendants are put on notice of the claims brought against them and so they can properly answer the complaint. Plaintiff's allegations in this regard are deficient. Count II of the Third Amended Complaint should be dismissed without prejudice for failure to state a facially plausible claim because Plaintiff failed to allege that any specific defendant was personally involved in the alleged constitutional violations.

Counsel for Plaintiff was appointed by the Court on July 13, 2018 and entered an appearance on July 18, 2018. It is recommended Counsel be directed to file a Fourth Amended Complaint consistent with this Order and the Court's Screening Order (Doc. 15). Counsel should file a motion for leave to amend the complaint and the proposed amended complaint to the Court for review prior to filing the Fourth Amended Complaint.

RECOMMENDATIONS

Based on the foregoing, it is RECOMMENDED that the Motion to Dismiss Count I (Doc. 122) filed by Defendant Wexford be GRANTED, that the Motion to Dismiss (Doc. 125) filed by IDOC Defendants be GRANTED, that the Motion to Dismiss Count I (Doc. 130) filed by Defendant Siddiqui be GRANTED, that Plaintiff's Count I shall be proceed only against the Illinois Department of Corrections, and that Plaintiff be granted 14 days from entry of an Order on this Report and Recommendation to seek leave to file a Fourth Amended Complaint, and that the Court adopt the foregoing findings of fact and conclusions of law.

Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).

NOTICE

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

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

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