Dupree v. Clemons et al
Filing
12
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 11/25/2013. (MJ, ilcd)
E-FILED
Monday, 25 November, 2013 04:53:54 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DAVID L. DUPREE,
Plaintiff,
v.
GREGORY A. CLEMONS, et al.,
Defendants.
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13-CV-3177
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se, filed this case from his
incarceration in Big Muddy Correctional Center. He has since been
released on parole, but the Court is still required to conduct a merit
review of the complaint under 28 U.S.C. § 1915A since Plaintiff filed
his complaint while incarcerated.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, --- F.3d ---, 2013 WL 3336713 * 2 (7th Cir.
2013). However, conclusory statements and labels are insufficient.
Enough facts must be provided to "'state a claim for relief that is
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plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
ANALYSIS
Plaintiff was allegedly detained in the Sangamon County Jail
from August 5 2009, through July 22, 2011. The statute of
limitations for Plaintiff's federal civil rights claims is two years from
the date of accrual. Woods v. Illinois Dept. of Children and Family
Serv., 710 F.3d 762, 768 (7th Cir. 2013)("To sum up, we reiterate
our holding that the limitations period applicable to all § 1983
claims brought in Illinois is two years, . . . ."). Plaintiff filed this
case on June 13, 2013 and many of the alleged adverse events
occurred before June 13, 2011. However, Plaintiff argues that all of
his claims are timely based on various legal exceptions. The Court,
therefore, will not address the statute of limitations until the
Defendants raise the issue.
Plaintiff's Complaint sets forth unrelated claims against
multiple defendants. See Wheeler v. Wexford Health Sources, Inc.,
689 F.3d 680, 683 (7th Cir. 2012)(“A litigant cannot throw all of his
grievances, against dozens of different parties, into one stewpot.
Joinder that requires the inclusion of extra parties is limited to
claims arising from the same transaction or series of related
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transactions.”); George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007)(“A buckshot complaint that would be rejected if filed by a free
person—say, a suit complaining that A defrauded the plaintiff, B
defamed him, C punched him, D failed to pay a debt, and E
infringed his copyright, all in different transactions—should be
rejected if filed by a prisoner.”).
However, dismissing the Complaint without prejudice to
repleading properly joined claims could exacerbate Plaintiff's statute
of limitations problems. The Court will, therefore, first determine
what federal claims are stated and then send the case for service.
After Defendants have appeared through counsel, the Court will
decide any statute of limitations defenses raised by Defendants.
Then the Court will decide whether the remaining claims should be
severed into separate cases.
I. Plaintiff states no claim for denial of access to the courts on
the present allegations, but Plaintiff may file a statement
offering more detail if Plaintiff believes that he can state a
viable claim for denial of access to the courts.
Plaintiff alleges that he was denied access to legal resources, a
notary, and the assistance of a paralegal. Denial of access to legal
resources or to a legal library does not, by itself, state a denial of
access claim. Ortloff v. United States, 335 F.3d 652, 656 (7th Cir.
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2003) (abrogated on other grounds as recognized in Parrott v. U.S.,
536 F.3d 629, 635 (7th Cir. 2008)). A denial of access claim arises
only if Plaintiff's pursuit of a nonfrivolous legal claim or defense is
concretely injured. Id. (["W]hen a plaintiff alleges a denial of the
right to access-to-courts, he must usually plead specific prejudice
to state a claim.”); Pegues v. Springob, --- Fed.Appx. ---, 2013 WL
5878680 (7th Cir. 2013)(nonprecedential, not published in Federal
Reporter)( "Pegues must point to a concrete, nonfrivolous defense he
might have raised but for his inability to access legal materials.")
A. No plausible inference arises that Plaintiff suffered
actual prejudice to his ability to pursue a meritorious claim in
Plaintiff's small claims court action.
Plaintiff alleges that the theft of unidentified legal documents
prevented him from appealing a small claims case in Sangamon
County, case 2010-SC-2210. The Court takes judicial notice of the
docket of Plaintiff's small claims case, which shows that Judge
Perrin ruled on September 9, 2010, that Plaintiff owed $2,000 in
back rent because Plaintiff had a month-to-month tenancy and had
not provided notice of his arrest to his landlord until November
2009. (See attached docket sheet.)
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Plaintiff contends that he could not file an appeal because the Jail
librarian ignored Plaintiff's requests for information on how to
appeal. However, Plaintiff later admits that he did file an appeal
but that the appeal was erroneously docketed as correspondence.
Even if the librarian prevented Plaintiff from filing a timely and
proper appeal, Plaintiff does not explain how his appeal had any
arguable merit. In re Maxy, 674 F.3d 658, (7th Cir. 2012)(no
access claim even though prisoner was impeded in challenging his
conviction because prisoner had not identified a meritorious
underlying claim). According to the Sangamon County Court
records, Plaintiff filed another case in the Illinois Circuit Court
about the same issue, which was dismissed as frivolous by Judge
Belz, who ruled as follows:
The Court finds, after a careful review of all documents
submitted, that the applicant in good faith could not
believe he has a meritorious claim or defense. The issues
contained in the complaint were previously litigated in
Sangamon County case 10-SC-2210. After hearing
evidence in this matter, Associate Judge Perrin ruled in
favor of the same Defendants who are named in this
lawsuit. This nearly three year old landlord/tenant
dispute has been previously decided and this lawsuit is
clearly frivolous in nature.
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Dupree v. Johnson, et al., 2012-L-000285 (docket sheet attached).
Plaintiff's present allegations do not allow a plausible inference that
he was hindered in his pursuit of a nonfrivolous appeal.
B. No plausible inference arises that Plaintiff was denied
access to the Court regarding his criminal case.
Plaintiff alleges that the theft of unidentified legal documents
relating to his criminal case, 09-CF-689 (Sangamon County),
caused Plaintiff to plead guilty. However, the docket in that case
shows that Plaintiff was appointed counsel in his criminal
proceedings. (See docket sheet attached.) Appointed counsel
satisfies Plaintiff's constitutional right to access the courts.
U.S.
v. Sykes, 614 F.3d 303, 311 (7th Cir. 2010)("We have long
interpreted [Supreme Court precedent Bounds to give the
government the choice to provide either access to a law library or
access to counsel or other appropriate legal assistance.")
Plaintiff alleges that he was prevented from filing a motion to
suppress or documents in support of a motion to suppress filed by
Plaintiff's counsel. However, Plaintiff does not explain how the
unidentified documents he wanted to file would have made any
difference to the outcome of the motion to suppress hearing, in
which he was already represented by counsel. As with Plaintiff's
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small claims case, no plausible inference arises that Plaintiff
suffered actual prejudice in his criminal case from the confiscation
of unidentified papers.
C. Plaintiff's allegations about other cases he was
prevented from pursuing do not allow a plausible inference that
Plaintiff was denied the ability to pursue a nonfrivolous claim.
Plaintiff identifies a District Court case—Dupree v.
Commissioner of Social Security, 10-CV-3280 (C.D. Ill.)—but
Plaintiff does not explain how he was actually prevented from
pursuing an arguable claim in that case. That case was dismissed
because Plaintiff had not exhausted his administrative remedies.
Plaintiff also identifies an Illinois Supreme Court case, 2010MR-680, but he does not explain what that case was about or how
he was hindered from pursuing a nonfrivolous claim.
II. Plaintiff states a possible claim arising from the alleged
policy against allowing pretrial detainees to deposit checks
sent to them at the Jail. This claim is stated against Sheriff
Williamson and Superintendent Strayer.
Plaintiff alleges that checks sent to him at the Jail were stolen
or that Plaintiff was denied his ability to deposit those checks in his
Jail trust fund account or in an account outside the Jail. In
particular, Plaintiff was sent the following checks at the Jail: 1) a
check from the Illinois Department of Aging for $209.03 in
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September 2009; 2) a social security check for $674 in October
2009; and, 3) a settlement check from Universal Casualty for
$842.31 in October 2009. Plaintiff alleges that the Jail policy for
pretrial detainees required these checks to be held in inventory.
Plaintiff sought to endorse and deposit the checks in his Jail trust
fund account or give the endorsed checks to family members to
contribute to their support. Plaintiff also alleges that the check
from the Illinois Department on Aging was eventually stolen or lost.
He alleges that this policy affects mostly black inmates, but no
plausible inference arises that non-black pretrial detainees are
treated differently. Plaintiff does not allege that the policy is applied
unequally to pretrial detainees depending on a pretrial detainee's
race.
At this point the Court cannot rule out a claim arising from
the alleged policy denying pretrial detainees possession and/or use
of checks sent to them at the Jail, particularly given that Plaintiff
was detained at the Jail for nearly two years. This claim proceeds
against Defendants Williamson and Strayer.
III. Plaintiff states an arguable claim for deliberate
indifference to his serious medical and psychiatric needs.
Plaintiff also states a claim that needed medical or psychiatric
care was refused in retaliation for Plaintiff's complaints. These
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claims are stated against Defendants Nurse Ramsey, Dr.
Lochard, and Social Worker Lydia Hickis.
In February 2011 and on other dates, Plaintiff was allegedly
deprived of prescribed medications for his serious psychiatric and
medical conditions. Nurse Lucy Ramsey was one of the health care
professionals allegedly personally responsible for this deprivation,
as well as for depriving Plaintiff of prescribed pain medicine for
Plaintiff's epididymitis. Plaintiff alleges that he was wrongly
charged medical copays for medical treatment and prescriptions.
Also, Plaintiff was allegedly denied access to see a psychiatrist in
March 2010.
These allegations state an arguable claim for deliberate
indifference to Plaintiff's serious medical and psychiatric needs.
Plaintiff also alleges that treatment was withheld in retaliation for
Plaintiff's complaints which states a First Amendment retaliation
claim.
IV. Plaintiff states arguable First Amendment retaliation
claims against Defendants Clemons, Durr, Fox, Smith, Kirby,
Bouvet, Brent, Berola, Ealey, Moore, Hudgings, and Loftus.
Plaintiff wrote letters to community leaders about Plaintiff's
lack of mental health and medical treatment. Allegedly in
retaliation for those letters, Officers Fox, Smith, and Kirby
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conspired with Plaintiff's cellmate Terry Brewer to frame Plaintiff.
In furtherance of that conspiracy, Plaintiff's cellmate falsely accused
Plaintiff of sexual misconduct, causing Plaintiff's placement in
segregation. Officer Clemons also retaliated against Plaintiff for
Plaintiff's complaints about Plaintiff's stolen check by transferring
Plaintiff to the pedophile wing and/or a high risk wing. A false
charge of sexual assault was also filed against Plaintiff, allegedly in
retaliation for Plaintiff's complaints.
In or around December 2010, Plaintiff informed Officers
Hudgins and Berola that another inmate had a shank. Officers
Berola, Ealey, Moore, and Hudgings tried unsuccessfully to frame
Plaintiff for possessing the shank in retaliation for Plaintiff's
complaints. In January 2011, the disciplinary charges against
Plaintiff for the shank and the sexual assault were dropped.
However, Plaintiff was allegedly kept in segregation for false reasons
per the orders of Officers Clemons and Durr.
In mid to late January 2011, Officers Clemons and Bouvet
conspired to write a false ticket against Plaintiff for tampering with
the food slot in his door. A campaign of additional false disciplinary
tickets against Plaintiff allegedly followed at the behest of Officers
Clemons and Brent.
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On February 11, 2011, Officer Kirby tried to move Plaintiff
into a cell with inmate Terry Brewer again. Plaintiff complained and
was moved to G-Block, a maximum security block where the heat
was not working, allegedly in retaliation for his complaint.
On March 11, 2011, Officer Loftus allegedly tried to force
Plaintiff to take an HIV test. When Plaintiff refused, Officer Loftus
retaliated by placing Plaintiff in a high risk cell.
These allegations allow a plausible inference that Plaintiff was
retaliated against for writing letters, grievances, and for other
protests about his treatment in prison. At this point the Court
cannot rule out a First Amendment retaliation claim.
V. Plaintiff states an arguable claim that he was denied the
right to vote.
Plaintiff alleges that he was denied his right to vote in the
2010 general election when Correctional Officer Wyse took Plaintiff's
absentee ballot and did not return the ballot. At this point, the
Court cannot rule out a claim that Plaintiff was intentionally denied
his right to vote.
VI. Plaintiff states a failure to protect claim against Officers
Krueger, Doetsch, Kirby, and Underwood.
In November 2010, Officer Krueger moved Plaintiff into a cell
with inmate Charles Harris, an allegedly violent inmate with severe
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mental health problems. Plaintiff requested to be moved, only to be
placed by Officer Krueger with inmate Robert James, also a violent
and mentally disturbed individual. Plaintiff's pleas to be moved
were ignored by Officers Krueger, Doetsch, Kirby, and Underwood,
and other officers working "booking" on the 7 a.m. to 3:00 p.m.
shift. Inmate James eventually did attack Plaintiff, causing Plaintiff
injury.
These allegations allow a plausible inference that Plaintiff was
intentionally and knowingly placed in a situation which presented a
substantial risk of serious harm to Plaintiff, in violation of Plaintiff's
constitutional rights.
VII. Plaintiff states a claim against Officer Kirby for placing
Plaintiff in a cell block with no heat in February.
Plaintiff alleges that he was placed on a wing without any heat
in February 2011. At this point, Plaintiff states an arguable claim
that the cold conditions violated his constitutional rights.
VIII. The involvement of Officers Lisa Mercier, Brenda James,
Candace Cain, James Wyse, and Anthony Johnson cannot be
ruled out at this stage, even though their personal involvement
in any of the alleged violations is unclear. After the Court
resolves statute of limitations issues, the Court may direct
Plaintiff to explain these Defendants' personal involvement in
the remaining claims.
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IX. No claim is stated against Dr. Tarter.
Dr. Tarter is a urologist at St. John's Hospital. No plausible
inference arises from Plaintiff's allegations that Dr. Tarter is a
government actor. Section 1983 claims can be pursued only
against state actors. 42 U.S.C. § 1983. Even if Dr. Tarter were a
state actor, the allegations do not suggest that Dr. Tarter was
deliberately indifferent to any of Plaintiff's serious medical needs.
Dr. Tarter will be dismissed.
X. Plaintiff states no claim arising from the alleged failure to
properly investigate or respond to Plaintiff's complaints and
grievances.
Plaintiff alleges that his grievances, complaints, and requests
for investigations regarding all these incidents were ignored,
refused, or not properly handled. However, a biased grievance
system or the refusal to investigate, take corrective action, or file
charges does not violate the Constitution. See, e.g., Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)(“a state’s inmate
grievance procedures do not give rise to a liberty interest protected
by the Due Process Clause.”); George v. Smith, 507 F.3d 605, 60910 (7th Cir. 2007) (“Only persons who cause or participate in the
violations are responsible. Ruling against a prisoner on an
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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 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 . . . .”).
For similar reasons, Plaintiff states no claim regarding his
allegation that inmates who stole Plaintiff's bag of coffee, peanut
butter wafers, and honey buns from Plaintiff's cell were not
punished but were only moved to a different cell. Jail officials are
not constitutionally required to replace an inmate's property which
is stolen by another inmate or to punish inmates for every
infraction.
XI. Plaintiff states no claim arising from alleged interference
with his outgoing or incoming mail or the reading of his alleged
legal correspondence.
Plaintiff alleges that in December 2009 he placed several
pieces of outgoing mail in the Jail mail box "to no avail," which the
Court construes as an allegation that this mail was not sent to the
addressees. Plaintiff allegedly tried to send mail to an Attorney
Timothy Hudspeth in February 2011, but Mr. Hudspeth told
Plaintiff that he still had not received the documents after two
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weeks. A Circuit Clerk allegedly sent to Plaintiff mail in August and
September of 2010, but Plaintiff alleges he never received it.
Plaintiff also alleges that delivery of his incoming mail was
intentionally delayed for several hours.
A systemic problem with the delivery of incoming or outgoing
mail would state a constitutional claim, but Plaintiff's own exhibits
and allegations show that Plaintiff successfully mailed out and
received many pieces of mail during his detention at the Jail.
Sporadic problems with mail delivery such as Plaintiff alleges do not
rise to the level of constitutional violations. Rowe v. Shake, 196
F.3d 778 (7th Cir. 1999)(short term, sporadic delays in receiving
mail did not state a claim for a constitutional violation).
Plaintiff alleges that his confidential legal mail was opened
outside of his presence, but he references mail sent to him from the
Court or state agencies. Mail from the Clerk, the Court, or a
government agency generally is not confidential and may be opened
outside an inmate's presence. Guarjardo-Palma v. Martinson, 622
F.3d 801, 806 (7th Cir. 2010)(opening of letters from courts and
agencies outside of the plaintiff’s presence did not state
constitutional claim). Plaintiff alleges that confidential mail from an
Attorney Althea Welsh was opened one time, but Attorney Welsh
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works for the Attorney Registration and Disciplinary Commission,
according to the ARDC website. Attorney Welsh could not be
representing Plaintiff in any proceedings, and Plaintiff does not
explain how correspondence from Welsh might be confidential.
Plaintiff also alleges that filings in his small claims case were
copied and distributed to Jail officials before being mailed.
However, Plaintiff's filings in court are of public record. The Court
sees no constitutional violation in the alleged copying of documents
intended to be filed in a case of public record.
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
constitutional claims set forth above. By December 6, 2013,
Plaintiff may clarify his claims for denial of access to the courts,
explaining how he suffered actual injury to his ability to pursue a
nonfrivolous claim.
2)
This case proceeds solely on the claims identified above.
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.
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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
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time.
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
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addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
6)
Defendants' Answer deadline will be set after the Court
rules on any statute of limitations defenses raised by Defendants.
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
Court has entered a scheduling order, which will explain the
discovery process in more detail.
8)
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
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or phone number will result in dismissal of this lawsuit, with
prejudice.
9)
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).
IT IS FURTHER ORDERED:
(1) The clerk is directed to attempt service on Defendants
pursuant to the standard procedures, except that only one copy
of the 94-page complaint shall be sent with the waivers of
service to Defendants located at the Sangamon County Jail;
(2) Plaintiff's Motion for an Emergency Supervisory Order
is denied (d/e 10) to the extent Plaintiff seeks other action
from this Court.
(3) Defendant Dr. Tarter is dismissed. The clerk is
directed to terminate Dr. Tarter.
(4) Plaintiff's motion for the Court to try to recruit pro
bono counsel is denied (d/e 4) with leave to renew after
Plaintiff demonstrates that he has tried to find counsel on his
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own. Typically, a plaintiff makes this showing by writing to
several different law firms and attaching the responses to the
motion for appointment of counsel.
ENTERED: November 25, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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