Snow v. List et al
Filing
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OPINION: (1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states a federal constitutional claim against Defendant List for sexual harassment. Additionally, the Court finds that Plaintif f states a constitutional claim for retaliation for exercising his First Amendment rights. The retaliation claim proceeds against Defendants List, Standley, and Dawson. Any other 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) Defendants Moreland, Ogunmokun, and Mendenhall are dismissed for failure to state a claim against them. (3) This case is referred to the Magi strate Judge for entry of a Scheduling Order directing service and setting a Rule 16 conference date. A copy of this Opinion shall be served with the Complaint and Scheduling Order. (4) "Doe" Defendants cannot be served. Plaintiff must ti mely identify all Doe Defendants or they will be dismissed, without prejudice. (5) Defendants shall file an answer within the time prescribed by Local Rule. 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 Opinion. Entered by Judge Sue E. Myerscough on 1/26/2012. (ME, ilcd)
E-FILED
Thursday, 26 January, 2012 04:50:24 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MATTHEW SNOW
)
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Plaintiff,
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v.
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CORRECTIONAL OFFICER D.
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LIST, ERNIE MORELAND, ADE
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OGUNMOKUN, L. MENDENHALL, )
LT. K. STANDLEY, ALEX
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DAWSON, and JOHN/JANE DOES, )
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Defendants.
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11-CV-3411
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and currently incarcerated in Centralia
Correctional Center, pursues claims arising from events which occurred in
Logan Correctional Center. The case is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A.
LEGAL STANDARD
The Court is required by § 1915A to review a Complaint filed by a
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prisoner against a governmental entity or officer and, through such
process, to identify cognizable claims, dismissing any claim that is
“frivolous, malicious, or fails to state a claim upon which relief may be
granted.” A hearing is held if necessary to assist the Court in this review,
but, in this case, the Court concludes that no hearing is necessary. The
Complaint and its attachments are clear enough on their own for this
Court to perform its merit review of Plaintiff’s Complaint.
The review standard under § 1915A is the same as the notice
pleading standard under Federal Rule of Civil Procedure 12(b)(6).
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a
claim, the allegations must set forth a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Factual allegations must give enough detail to give “‘fair notice
of what the . . . claim is and the grounds upon which it rests.’” EEOC v.
Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add’l citation
omitted). The factual “allegations must plausibly suggest that the
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plaintiff has a right to relief, raising that possibility above a ‘speculative
level.’” Id., quoting Bell Atlantic, 550 U.S. at 555. “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 . . . . Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550
U.S. at 555-56. However, pro se pleadings are liberally construed when
applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009).
ALLEGATIONS
On February 24, 2011, Correctional Officer List allegedly made
offensive remarks to Plaintiff regarding Plaintiff’s large breasts. List
allegedly told Plaintiff that Plaintiff “would have made a lot of money
here back in the day.” Plaintiff asked what List meant by this remark,
whereupon List demonstrated by simulating masturbation. List then
“placed both his hands on my chest, squeezed it, then forced it together
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in the middle to look like boobs and said ‘with these babies!’” Plaintiff
was allegedly seriously traumatized by this humiliation.
Plaintiff filed a grievance about the incident and also wrote letters
to the Logan County Sheriff, the Illinois State Police, and the FBI.
Allegedly in retaliation for these complaints, Plaintiff was put in
segregation and suffered other punishment.
ANALYSIS
Verbal harassment does not, by itself, violate the U.S. Constitution.
Dobbey v. Illinois Dept. of Corrections, 574 F.3d 443, 446 (7th Cir.
2009)(“[H]arassment, while regrettable, is not what comes to mind when
one thinks of ‘cruel and unusual’ punishment.”); Dewalt v. Carter, 224
F.3d 607, 612 (7th Cir. 2000)("[R]acially derogatory language, while
unprofessional and deplorable, does not violate the Constitution . . . .
Standing alone, simple verbal harassment does not constitute cruel and
unusual punishment, deprive a prisoner of a protected liberty interest or
deny a prisoner equal protection of the laws."). Additionally, “not every
‘malevolent touch by a prison guard’ gives rise to a federal cause of action
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. . . .” Outlaw v. Newkirk, 259 F.3d 833, 838 (7th Cir. 2001)(quoted cite
omitted).
However, the Eighth Amendment does prohibit the “wanton
infliction of psychological pain,” regardless of physical injury, though the
deprivation must still be serious enough to garner the Constitution’s
attention. Compare Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir.
2003)(inmate stated Eighth Amendment claim for strip search
“conducted in a harassing manner intended to humiliate and inflict
psychological pain.”), with Dobbey, 574 F.3d at 445-446 (7th Cir.
2009)(guard’s hanging of noose in front of black prisoners did not state a
claim). “[A] prisoner has a remedy for deliberate harassment, on account
of sex, by guards of either sex.” Johnson v. Phelan, 69 F.3d 144, 147 (7th
Cir. 1995).
Determining on which side Plaintiff’s claim falls would be
premature. The decision better awaits a fully developed factual record
and input from Defendant List. See, e.g., Johnson v. Winters, 2011 WL
2473649 *5 (N.D. Ill. 2011)(not reported in F.Supp. 2d)(allowing sexual
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harassment claim to proceed at pleading stage where prisoner alleged that
guard made a comment about prisoner’s buttocks and later grabbed
prisoner’s buttocks).
Plaintiff also states a plausible claim for retaliation against him for
filing grievances and writing letters about the incident. "The federal
courts have long recognized a prisoner's right to seek administrative or
judicial remedy of conditions of confinement, . . . as well as the right to
be free from retaliation for exercising this right." Babcock v. White, 102
F.3d 267, 276 (7th Cir. 1996)(citations omitted). The alleged retaliation
appears to include placing Plaintiff in segregation, denying him yard
time, and denying him use of the phone.
The only named Defendants who plausibly participated in this
alleged retaliation appear to be Defendants List, Standley, and Dawson.
The other Defendants cannot be liable simply because they failed to
intervene or failed to help Plaintiff. 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
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complaint does not cause or contribute to the violation.”).
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 a federal constitutional claim
against Defendant List for sexual harassment. Additionally, the Court
finds that Plaintiff states a constitutional claim for retaliation for
exercising his First Amendment rights. The retaliation claim proceeds
against Defendants List, Standley, and Dawson. Any other 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) Defendants Moreland, Ogunmokun, and Mendenhall are
dismissed for failure to state a claim against them.
3) This case is referred to the Magistrate Judge for entry of a
Scheduling Order directing service and setting a Rule 16 conference date.
A copy of this Opinion shall be served with the Complaint and
Scheduling Order.
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4) “Doe” Defendants cannot be served. Plaintiff must timely
identify all Doe Defendants or they will be dismissed, without prejudice.
5) Defendants shall file an answer within the time prescribed by
Local Rule. 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
Opinion.
ENTERED: January 26, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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