Buie v. Schmeltz et al

Filing 14

MERIT REVIEW OPINION entered by Chief Judge James E. Shadid on 8/6/15. The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to att empt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The Clerk is directed to terminate Defendant Pfister. Plaintiff's motions for status are denied as moot 12 and 13 . SEE FULL WRITTEN ORDER. (FDT, ilcd) Modified on 8/6/2015 to correct Judge.(FDT, ilcd).

E-FILED

Thursday, 06 August, 2015 11:25:44 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MARQUETTE BUIE,
Plaintiff,
v.
OFFICER SCHMELTZ, et al.,
Defendants.

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15-CV-1096

MERIT REVIEW OPINION
JAMES E. SHADID, U.S. District Judge.
Before conducting a merit review of Plaintiff’s Complaint, the
Court ordered Plaintiff to provide more detail regarding his
exhaustion of administrative remedies. This was to address
concerns, based on Plaintiff’s litigation history, that Plaintiff might
be pursuing this case for improper purposes such as harassment.
(5/29/15 text order.)
Plaintiff has responded with a copy of the emergency grievance
he filed and an affidavit setting forth the steps he took to exhaust.
Plaintiff avers that the Warden declined to characterize Plaintiff’s
grievance as an emergency and instructed Plaintiff to file the
grievance through the normal procedures. Plaintiff avers that he
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appealed the Warden’s decision to the Administrative Review Board,
and the Board returned the grievance to Plaintiff, telling Plaintiff to
“[F]ollow directions of grievance officer.” (d/e 11-1, p. 6.)
Plaintiff is correct that the Seventh Circuit has remarked that
“nothing in the current regulatory text, . . . , [] requires an inmate
to file a new grievance after learning only that it will not be
considered on an emergency basis.” Thornton v. Snyder, 428 F.3d
690, 694 (7th Cir. 2005); see also Roberts v. Neal, 745 F.3d 232, 236
(7th Cir. 2014)(administrative remedies exhausted because the
plaintiff received no response to his emergency grievance).
Thornton has largely been taken to mean that once an inmate files
an emergency grievance, he has exhausted his available remedies.
See Quigley v. Hardy, 2013 WL 5781737 *3 (N.D. Ill. 2013)(citing
cases).
An interesting question, though, is whether Thornton allows
an inmate to bypass the regular grievance procedures simply by
marking “emergency” on every grievance, even grievances regarding
the most mundane matters. Arguably the answer is no. See, e.g.,
Bulmer v. Young, 160 Fed.Appx. 524, 527 (not published in Federal

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Reporter).1 However, answering this question would be premature
in this case and possibly unnecessary. Since Plaintiff presents a
plausible argument that he did exhaust his administrative
remedies, the Court will proceed to conduct a merit review of
Plaintiff’s complaint.
Plaintiff alleges that he previously filed a lawsuit against
Correctional Officers Schmeltz, Brewer, and other prison staff. See
Buie v. Corley, 14-CV-1148 (C.D. Ill.)(pending). Ever since,
Defendants Schmeltz and Brewer have allegedly retaliated against
Plaintiff. For example, on July 8, 2014, Officer Brewer pushed
Plaintiff into a steel gate for no reason in front of Officer Schmeltz,
who did nothing. “Plaintiff’s back was badly hurting and bruised
and his fingers were swollen.” (Complaint paras. 24-25.) Officer
Schmeltz and Medical Technicians Birkle and “Jessica” all refused
Plaintiff’s requests to see a doctor. After the alleged assault,
Defendant Schmeltz shook down Plaintiff’s cell for no legitimate
reason, scattering and destroying some of Plaintiff’s legal papers,
including affidavits in support of Plaintiff’s lawsuit. A few weeks

1

 “[T]here was a remedy available to Mr. Bulmer: the grievance liaison officer advised him to refile his February 
2002 emergency grievance as a routine grievance, and he did. Mr. Bulmer produced no evidence to counter the 
affidavit testimony of the ARB chairperson, who explained that an inmate must pursue a grievance that has been 
denied emergency status by resubmitting it for processing as a routine grievance.” 

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later, Officer Schmeltz moved Plaintiff to a filthy cell covered in
feces, urine, and another inmate’s dirty clothes. Officers Schmeltz,
Zook, Sullivan, and Krashaar refused Plaintiff’s pleas to be moved
out of the filthy cell. Plaintiff remained in the cell over 24 hours,
until a lieutenant intervened.
On these allegations, the Court cannot rule out possible
constitutional claims for retaliation, excessive force, lack of medical
care, and inhumane conditions of confinement. However, no claim
is stated against Warden Pfister. Warden Pfister is not liable for the
misconduct of his staff simply because he is in charge, and he did
not personally participate in the incidents. Warden Pfister refused
to process Plaintiff’s grievance as an emergency but that is not a
constitutional violation. See Burks v. Raemisch, 555 F.3d 592,
595 (7th Cir. 2009)(grievance examiner's rejection of complaint as
untimely without investigation was not deliberate indifference);
George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“Only
persons who cause or participate in the violations are responsible.
Ruling against a prisoner on an administrative complaint does not
cause or contribute to the violation.”); Soderbeck v. Burnett County,
752 F.2d 285, 293 (7th Cir. 1985)(“Failure to take corrective action
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cannot in and of itself violate section 1983. Otherwise the action of
an inferior officer would automatically be attributed up the line to
his highest superior . . . .”). Accordingly, Warden Pfister will be
dismissed.
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states the following
possible constitutional claims: (1) retaliation for Plaintiff’s lawsuit;
(2) excessive force by Officer Schmeltz; (3) deliberate indifference to
Plaintiff’s need for medical treatment after the excessive force; and,
(4) inhumane conditions of confinement. This case proceeds solely
on the claims identified in this paragraph. 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 Pfister is dismissed.

3)

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
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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.
4)

The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent 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.
5)

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.
6)

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
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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 Opinion. 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.
7)

This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the

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Court has entered a scheduling order, which will explain the
discovery process in more detail.
8)

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.
9)

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.
10)

If a Defendants fails to sign and return a waiver of service

to 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).
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.

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12)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
13)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
14)

The Clerk is directed to terminate Defendant Pfister.

15)

Plaintiff’s motions for status are denied as moot (12,

13).
ENTERED: 8/6/15
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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