Barrows v. Blackwell et al

Filing 4

MERIT REVIEW OPINION entered by Judge Joe Billy McDade on 07/31/2014. IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Dismiss all Defendants except the John Doe tactical team members and Warden Pfister for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §1915A; 2) Attempt service on Defendant Pfister pursuant to the standard procedures; 3) set an internal court deadline 60 days from the entry of this order forthe court to check on the status of servic e and enter scheduling deadlines and 4) enter the Court's standard qualified protective order pursuant to the HealthInsurance Portability and Accountability Act. 2) If a Defendant fails to sign and return a waiver of service for the clerk within 30 days after the waiver is sent, the court will take appropriate steps to effect formal service through the U.S. Marshal's Service on that Defendant and will require thatDefendant to pay the full costs of formal service pursuant to Federal Rule of Civil Procedure 4(d)(2). See Full Written Order.(JS, ilcd)

E-FILED

Thursday, 31 July, 2014 01:01:05 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
HENRY BARROWS,
Plaintiff,
vs.

13-1483

OFFICER BLACKWELL, et.al.,
Defendants.
MERIT REVIEW OPINION
This cause is before the court for merit review of the Plaintiff’s complaint. The court is
still required by 28 U.S.C. §1915A to “screen” the Plaintiff’s amended complaint, and through
such process to identify and dismiss any legally insufficient claim, or the entire action if
warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune
from such relief.” 28 U.S.C. §1915A.
The Plaintiff alleges twelve Defendants violated his constitutional rights at Pontiac
Correctional Center including Sergeant Blackwell, Correctional Officer Brian Maier, Dr. Moss,
Counselor Terri Kennedy, Dr. Alton Angus, Warden Randy Pfister and six John Doe
Defendants.
The Plaintiff says on June 7, 2103, a five member tactical team was called to secure the
food hatch in his cell. The Plaintiff was told to cuff up and move back with his hands above his
head. The Plaintiff says he complied, but the tactical team still sprayed chemical spray in his
cell. The Plaintiff was taken to a medical technician who flushed out the Plaintiff’s eyes with
water.
The Plaintiff says tactical team members then took him to another cell where he was
subjected to a full body search. The Plaintiff claims the officers then repeatedly shoved an
object into his rectum. Afterwards the tactical team told the Plaintiff to tie his jumpsuit around
his waist, and he was taken back to his cell.
The Plaintiff says he tried to wash the chemical agent off his skin, but all water was
turned off in his cell and there was feces and urine in his toilet. The Plaintiff asked Defendant
Maier to allow him water to wash off because his skin was burning, but he says the officer
laughed at him. The next day, the Plaintiff smeared feces on his cell window and took
unidentified pills. As a result, he was taken to the Health Care Unit. The Plaintiff says he told
Dr. Moss about the tactical team members and she said she would report the incident and follow
up with the Plaintiff, but nothing was done. The Plaintiff also wrote an emergency grievance,
but Warden Pfister did not respond.

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The Plaintiff says he was placed on suicide watch from September 9th to September 17,
2013 in a cell with dried up feces on the walls, window, ceiling and toilet. The Plaintiff says he
repeatedly complained about the cell conditions to Dr. Angus, but he took no action. In addition,
he sent a grievance to Counselor Terri Kennedy, but she did not respond. The Plaintiff claims
the Defendants actions violated his Eighth Amendment and Due Process rights.
The Plaintiff has adequately alleged the five John Doe members of the tactical team
violated his Eighth Amendment rights when they: 1) used pepper spray when the Plaintiff had
already complied with orders; and 2) sexually assaulted the Plaintiff. The Plaintiff also says
Sergeant Blackwell was involved in the incident, but he does not state how the sergeant
participated. Therefore, the court will dismiss this Defendant. If the Plaintiff can state how
Defendant Blackwell was directly involved, he may file a motion for leave to file an amended
complaint.
The fact that Dr. Moss and the Warden took no action after the Plaintiff reported the tact
team incident does not state a violation of the Plaintiff’s constitutional rights. Only persons who
cause or participate in the violations are responsible and they must be the subject of a duly filed
grievance. See Greeno v. Daley, 414 F.3d 645, 656–57 (7th Cir.2005); Reed v. McBride, 178
F.3d 849, 851–52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 992–93 (7th Cir.1996). In
addition the failure to respond to grievances does not state a due process violation. The Seventh
Circuit has held the alleged mishandling of grievances “by persons who otherwise did not cause
or participate in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953
(7th Cir.2011). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir.2008); George v.
Smith, 507 F.3d 605, 609 (7th Cir.2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th
Cir.1996). Therefore, the failure to investigate or respond to Plaintiff's grievances does not
support an independent constitutional claim. “[A] state's inmate grievance procedures do not give
rise to a liberty interest protected by the Due Process Clause.” Antonelli, 81 F.3d at 1430. The
Constitution requires no procedure at all, and the failure of state prison officials to follow their
own grievance procedures does not, of itself, violate the Constitution. Maust v. Headley, 959
F.2d 644, 648 (7th Cir.1992); Shango v. Jurich, 681 F.2d 1091, 1100–01 (7th Cir.1982).
The Plaintiff claims Defendant Maier was deliberately indifferent to his serious medical
condition when he was denied water to wash off his skin or additional medical care to reduce his
pain. The Plaintiff admits a medical technician did rinse out his eyes immediately after the use
of pepper spray. Some courts have noted “exposure to OC spray has no lasting effects and the
treatment for such exposure consists primarily of ‘flushing the eyes with water.’”Ford v Ryker,
2011 WL 833963 at 2 FN 2 (S.D.Ill. March 4, 2011) citing Wagner v Bay City Tex., 227 F.3d
316, 319 N. 1 (5th Cir. 2000). Unlike the eye, the human skin is not as vulnerable to serious
injuries from exposure to chemical spray and the court will not infer a serious injury to the
Plaintiff’s skin based on the record before the court. Consequently, the allegations of deliberate
indifference to a serious medical condition against Officer Maier are insufficient to make out a
plausible claim that the Defendant Maier had reason to know that Plaintiff’s skin pain was a
serious medical condition requiring additional treatment. If the Plaintiff believes in good faith
that he can correct this pleading defect, he may file a motion for leave to file an amended
complaint specifically stating his claim against Defendant Maier.

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The Plaintiff has also alleged an Eighth Amendment claim against Defendant Angus
based on the Defendants failure to take any actions when the Plaintiff repeated reported his
deplorable living conditions. However, this claim is not related to the other allegations in this
complaint. The alleged use of excessive force and denial of medical care took place on June 7,
2013 and the alleged unconstitutional living conditions did not occur until three months later in
September of 2013 and involved a different Defendant. The Seventh Circuit has held a prisoner
may not “dodge” the fee payment or three strikes provisions in the Prison Litigation Reform Act
by filing unrelated claims against different defendants in one lawsuit. George v. Smith, 507 F.3d
605, 607, (7th Cir. 2007) “[M]ultiple claims against a single party are fine, but a Claim A against
Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” Id. Therefore,
the Plaintiff may not proceed with this claim in the same complaint.
The Plaintiff will be allowed to proceed in this case with his claim that tactical team
members violated his Eighth Amendment rights when they used excessive force and sexually
assaulted him. If the Plaintiff believes he can clarify his claim against Defendant Maier or
Defendant Blackwell, he may file a motion for leave to file an amended complaint with a
proposed amended complaint attached within 21 days of this order. The amended complaint
must stand complete on its own and not make reference to the original complaint. The amended
complaint must also include all claims against all Defendants. If possible, the Plaintiff should
attempt to identify the tactical team members. The court cannot serve John Doe Defendants.
Therefore, Defendant Warden Randy Pfister will remain in the case only for the purpose of
identifying the John Doe Defendants.
The Plaintiff may not proceed with his claims involving Defendant Angus and his
unconstitutional living conditions from September 9, 2013 to September 17, 2013 in this lawsuit.
If he wishes to purse this claim, the Plaintiff must file a separate lawsuit and pay a separate filing
fee. The Plaintiff is also admonished he must file any lawsuit concerning this claim within the
two year statute of limitations period. See Farrell v. McDonough, 966 F.2d 279, 280-82 (7th Cir.
1992); Hondo, Inc. v. Sterling, 21 F.3d 775, 778 (7th Cir. 1994).
IT IS THEREFORE ORDERED that:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the court finds
the Plaintiff alleges: a) the five John Doe members of the tactical team violated his
Eighth Amendment rights when they used pepper spray against the Plaintiff; and b) the
tactical team members violated the Eighth Amendment when they sexually assaulted the
Plaintiff. The claims are against the Defendants in their individual capacities only. Any
additional claims shall not be included in the case, except at the Court’s discretion on
motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure
15.
2) Defendant Warden Pfister will also remain in the case until the parties can identify the
John Doe Defendants.
3) If the Plaintiff wishes to clarify his claims against Defendant Blackwell and Maier, he
may file a motion for leave to file an amended complaint with a proposed amended
complaint attached within 21 days of this order or on or before August 21, 2014. The
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proposed amended complaint must be in compliance with the court’s directives in this
Merit Review Order.
4) This case is now in the process of service. Plaintiff is advised to wait until counsel has
appeared for Defendants before filing any motions, in order to give Defendants notice
and an opportunity to respond to those motions. Motions filed before Defendants'
counsel has filed an appearance will generally be denied as premature. Plaintiff need not
submit any evidence to the Court at this time, unless otherwise directed by the Court.
5) The Court will attempt service on Defendants by mailing each Defendant a waiver of
service. Defendants have 60 days from service to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the entry of this order,
Plaintiff may file a motion requesting the status of service. After Defendants have been
served, the Court will enter an order setting discovery and dispositive motion deadlines.
6) With respect to a Defendant who no longer works at the address provided by Plaintiff,
the entity for whom that Defendant worked while at that address shall provide to the
Clerk said Defendant's current work address, or, if not known, said Defendant's
forwarding address. This information shall be used only for effectuating service.
Documentation of forwarding addresses shall be retained only by the Clerk and shall not
be maintained in the public docket nor disclosed by the Clerk.
7) Defendants shall file an answer within 60 days of the date the waiver is sent by the
Clerk. A motion to dismiss is not an answer. The answer should include all defenses
appropriate under the Federal Rules. The answer and subsequent pleadings shall be to
the issues and claims stated in this Order. In general, an answer sets forth Defendants'
positions. The Court does not rule on the merits of those positions unless and until a
motion is filed by Defendants. Therefore, no response to the answer is necessary or will
be considered.
8) Once counsel has appeared for a Defendant, Plaintiff need not send copies of his
filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file
Plaintiff's document electronically and send a notice of electronic filing to defense
counsel. The notice of electronic filing shall constitute service on Defendants pursuant to
Local Rule 5.3. If electronic service on Defendants is not available, Plaintiff will be
notified and instructed accordingly.
9) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place of
confinement. Counsel for Defendants shall arrange the time for the deposition.
10) Plaintiff shall immediately notify the Court, in writing, of any change in his mailing
address and telephone number. Plaintiff's failure to notify the Court of a change in
mailing address or phone number will result in dismissal of this lawsuit, with prejudice.

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11) Within 10 days of receiving from Defendants’ counsel an authorization to release
medical records, Plaintiff is directed to sign and return the authorization to Defendants’
Counsel.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss all Defendants except the John Doe tactical team members and Warden
Pfister for failure to state a claim upon which relief can be granted pursuant to 28
U.S.C. §1915A; 2) Attempt service on Defendant Pfister pursuant to the standard
procedures; 3) set an internal court deadline 60 days from the entry of this order for
the court to check on the status of service and enter scheduling deadlines and 4)
enter the Court's standard qualified protective order pursuant to the Health
Insurance Portability and Accountability Act.

2) If a Defendant fails to sign and return a waiver of service for the clerk within 30
days after the waiver is sent, the court will take appropriate steps to effect formal
service through the U.S. Marshal’s Service on that Defendant and will require that
Defendant to pay the full costs of formal service pursuant to Federal Rule of Civil
Procedure 4(d)(2).

ENTERED this 31st day of July, 2014.

s/ Joe Billy McDade
____________________________________________
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE

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