Brown v. McAdory et al

Filing 86

OPINION: Defendants' motions for summary judgment are denied 57 , 65 . A final pretrial conference is scheduled for November 12, 2014 at 3:00 p.m. Plaintiff shall appear by video conference. Defense counsel shall appear in person. The jury selection and trial are scheduled for February 3, 2015, at 9:00 am. An agreed, proposed final pretrial order is due November 5, 2014. The Court will send out proposed jury instructions and voir dire for discussion at the final pretrial conference. The following are due November 5, 2014: an agreed, proposed final pretrial order; motions in limine; additional or alternate instructions. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 10/14/2014. (GL, ilcd)

E-FILED

Tuesday, 14 October, 2014 11:12:24 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
BOBBY BROWN,
Plaintiff,
v.
EUGENE MCADORY,
JOSEPH HANKINS,
CURTIS PARSONS,
TARRY WILLIAMS,
SHAN JUMPER,
SHARLENE CARAWAY, and
JOSEPH PROCTOR,
Defendants.

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11-CV-3195

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. He pursues claims arising from the conditions
he endured before and after disciplinary proceedings on two different
occasions, one in 2010 and the other in 2011. Defendants have
moved for summary judgment. At this stage, the evidence is viewed
in the light most favorable to Plaintiff, with material factual disputes
resolved in Plaintiff's favor. Anderson v. Liberty Lobby, Inc., 477
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U.S. 242, 248 (1986). Looking at the record in that way, summary
judgment must be denied.
FACTS
The record, drawing inferences in Plaintiff’s favor, shows that
Plaintiff received a disciplinary ticket on July 15, 2010, for arguing
with a security officer. On July 22, 2010, Plaintiff appeared before
the behavior committee, a group of three individuals who decide
whether and what kind of punishment a resident will receive for an
infraction. Defendants Jumper and Proctor were acting on the
behavior committee that day. The committee found Plaintiff guilty of
a minor rule violation—insolence— and down-graded Plaintiff’s
status to “close status” for three days, which meant that Plaintiff
would be moved from his regular room to a room with less property
and fewer privileges. Plaintiff felt this punishment was unfair
because the minor violation was not his third minor violation as the
committee had maintained. According to Plaintiff’s count, the minor
violation was only his second minor violation.
Plaintiff refused to move from his room to serve out his
punishment. Because of his refusal, Plaintiff was escorted to a
different unit (“special management”), placed on “temporary special
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status,” and written a ticket for “interfering with facility operations.”
According to Plaintiff, temporary special status generally means an
empty cell with a mattress and some hygiene supplies such as a
toothbrush, toothpaste, shower shoes, a towel, and some soap.
Temporary special status typically lasts a few days until the resident
appears before the behavior committee.
Plaintiff was placed on temporary special status on July 22,
2010, with only the clothes on his back, the shoes on his feet, and a
mattress in the cell. He received no hygiene supplies, no writing
supplies, no legal or other property, and was not allowed any phone
calls or other communication with anyone, except with whomever
came to check on him. On July 27, 2010, Plaintiff appeared before
the behavior committee. Dr. Jumper was a part of the behavior
committee that day. The behavior committee found Plaintiff guilty
and demoted Plaintiff to close status for 10 days. Though not in this
record, the Court’s understanding is that close status allows a
resident to have some property and also allows for some time out of
the cell and communication with family. However, Plaintiff received
nothing: for the duration of his purported close status, Plaintiff had
no property, writing supplies, clothing, or hygiene supplies. Nor
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could he communicate with anyone other than who passed by his
room. Plaintiff asserts that he told Defendants Jumper and Hankins
about these conditions at the behavior committee on July 27, 2010,
and that he again told Jumper, Hankins, and Proctor two days later
on July 29, 2010, at another behavior committee meeting. Plaintiff
was allowed to return to his room on August 8, 2010.
The second incident occurred on March 24, 2011, when
Plaintiff was placed on temporary special status for allegedly
threatening staff. Plaintiff was not informed of the specifics of the
alleged threats or told who wrote the ticket. This time Plaintiff had
no mattress, in addition to having no other property and no ability
to communicate with anyone except for staff who visited Plaintiff’s
cell. Defendant Proctor checked on Plaintiff that day to try to
determine whether Plaintiff posed a threat to himself or others.
Plaintiff asked Proctor why Plaintiff had no mattress and refused to
speak to Proctor until a mattress was provided. Defendant Proctor
put Plaintiff on “mental health II status,” which required monitoring
by staff every 15 minutes. According to Plaintiff, his repeated
requests for a mattress, cover, and hygiene supplies over the

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following days were refused. Defendants assert that Plaintiff was
offered these items and he refused, but Plaintiff denies this.
On March 28, 2011, Plaintiff appeared before the behavior
committee, which included Defendants Proctor and Caraway that
day. According to Plaintiff, Plaintiff told Proctor and Caraway about
his lack of a mattress, basic hygiene supplies, and property, but
they did not respond. The behavior committee found Plaintiff guilty,
imposed seven days of close status, and demoted Plaintiff to “general
status,” the meaning of which is not disclosed in the record.
ANALYSIS
Defendants argue that the deprivations suffered by Plaintiff
were not objectively serious enough to violate the Constitution,
citing cases in which the conditions suffered by prisoners were
much worse and found not to violate the Constitution. Even for
detainees like Plaintiff, the condition must be objectively serious.
See Sain v. Wood, 512 F.3d 886 (7th Cir. 2008)(peeling paint, foul
odor, lack of air conditioning, and cockroaches were not objectively
serious enough to violate U.S. Constitution).
The Court cannot confidently conclude as a matter of law that
the conditions Plaintiff endured were not objectively serious. For
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about 18 days in the 2010 incident, Plaintiff had only a mattress,
the clothes on his back, and the shoes on his feet. He had no ability
to communicate to those outside the facility or to employees within
the facility who did not stop by his cell. The inability to inform
others of alleged abuse potentially fosters abuse. For 11 days in the
2011 incident Plaintiff endured the same conditions but did not even
have a mattress. The Court cannot rule out a due process claim
based on this record. Further, while internal rules do not set the
constitutional standard, the violation of rules requiring Plaintiff to
have certain property with him could be relevant to Defendants’
motivation.
Plaintiff also has an arguable First Amendment claim based on
his inability to communicate internally or externally. See Kaufman
v. McCaughtry, 419 F.3d 678 (7th Cir. 2005)("Inmates have a First
Amendment right to both send and receive mail . . . .")(citations
omitted). Plaintiff had no writing utensils or supplies and was
unable to phone or otherwise contact anyone. A legitimate
government reason might support these restrictions, but the Court
does not see one on this record.

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Plaintiff may also have a procedural due process claim based
on his placement on temporary special status without due process.
Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002)(citations omitted)("[a]
pretrial detainee cannot be placed in segregation as a punishment
for a disciplinary infraction without notice and an opportunity to be
heard; due process requires no less. . . . But no process is required
if he is placed in segregation not as punishment but for managerial
reasons.”). Had Plaintiff received a mattress and basic hygiene
supplies, such short-term placement would not trigger procedural
due process protections. But Plaintiff did not receive those minimal
necessities. The extent of each Defendant’s knowledge of those
conditions and ability to correct the problem is a jury question on
this record.
Additionally, Plaintiff arguably has a procedural due process
claim that he was unable to marshal an effective defense with regard
to the 2011 disciplinary ticket without adequate notice of the facts
underlying the charge and the identity of the person who wrote the
ticket. The Court cannot determine from the record whether
Plaintiff suffered an “atypical and significant” deprivation from the
punishment on that ticket. If he did, he was entitled to adequate
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notice of the facts underlying the charges and a meaningful
opportunity to defend himself. Thielman v. Leean, 282 F.3d 478,
484 (7th Cir. 2002)(punishment must be an “‘atypical and
significant deprivation’” to trigger procedural due process
protections)(quoted cite omitted). Some of these claims might be
amenable to a directed verdict at trial, but not enough information is
in the record to make the decision on summary judgment. For the
same reason, qualified immunity is not appropriate. Defendants
have not ruled out the possibility that Plaintiff suffered an
objectively serious deprivation or an infringement of his First
Amendment rights.
Plaintiff has failed to establish supplemental state law claims
for battery or “corporal punishment.” A battery occurs when
someone intentionally touches another without the other’s consent.
Kling v. Landry, 292 Ill.App.3d 329 (2d Dist. 1997). “Corporal
punishment” in this context means the use of force as a punishment
for a disciplinary infraction. The facts of this case do not fit those
definitions. The section cited by Plaintiff, 730 ILCS 5/3-8-7(b)(1)
also prohibits “restrictions on diet, medical or sanitary facilities,
mail or access to legal materials” as prison discipline. However, no
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private right of action exists to enforce that statute. See Montes v.
Taylor, 985 N.E.2d 1037, 1042-43 (4th Dist. 2013)(Unified Code of
Corrections provides guidance to officials, not rights for inmates
beyond the Constitution).
IT IS ORDERED:
1.

Defendants’ motions for summary judgment are denied

(57, 65).
2.

A final pretrial conference is scheduled for November

12, 2014 at 3:00 p.m.. Plaintiff shall appear by video
conference. Defense counsel shall appear in person.
3.

The jury selection and trial are scheduled for

February 3, 2015, at 9:00 am.
4.

An agreed, proposed final pretrial order is due

November 5, 2014.
5.

The Court will send out proposed jury instructions

and voir dire for discussion at the final pretrial conference.
6.

The following are due November 5, 2014: an agreed,

proposed final pretrial order; motions in limine; additional or
alternate instructions.

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7.

The parties must have their numbered exhibits with

them at the final pretrial conference and must have provided a
copy of those exhibits to the opposing party before the final
pretrial conference. If a party plans to object to an exhibit, that
party must file the exhibit at issue before the final pretrial
conference.
8.

The clerk is directed to issue a video writ to

secure Plaintiff's presence at the final pretrial conference.
ENTER: October 14, 2014
FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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