Conaway v. Godinez et al

Filing 7

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 12/16/2015. (Rule 16 Deadline 2/16/2016.) See written Order. 1) Dismiss Defendants Godinez, Baldwin, Korte, Ruiz, Megginson, Barfield, Goins, John Doe Safety and Sanitation Coordinato r #1 and #2, John Doe Medical Inspector, Wexford, Deborah Fuqua, Teel, Lynch, and Knauer for failure to state a claim upon which relief can be granted pursuant to by 28 U.S.C. §1915A; 2) deny Plaintiff's motion for appointment of counsel; 5 3) Attempt service on Defendants pursuant to the standard procedures; 4) 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 5) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (LN, ilcd)

E-FILED

Wednesday, 16 December, 2015 03:37:34 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
GREGORY T. CONAWAY,
Plaintiff,

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vs.
SLAVADOR GODINEZ, et.al.,
Defendants

No. 15-3339

MERIT REVIEW ORDER
This cause is before the Court for merit review of the Plaintiff’s complaint. The Court is
required by 28 U.S.C. §1915A to “screen” the Plaintiff’s 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, a pro se prisoner, says his constitutional rights were violated at Western
Illinois Correctional Center. The Plaintiff’s complaint is 23 pages with 114 pages of exhibits
attached. Although the document is typed, the print is very faint and difficult to read in portions.
Nonetheless, Plaintiff’s complaint does include numbered paragraphs listing each of his claims
against each of the named Defendants.
In most instances, Plaintiff has a paragraph listing general claims against a specific
Defendant which does not provide enough specific information to put that Defendant on notice
of the specific claim against him. However, immediately following this paragraph, Plaintiff

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repeats or narrows his allegations with specific dates and events.1 The Court notes the
paragraphs containing general allegations are not sufficient to state a claim for relief, and
therefore the Court has relied on the more specific paragraphs to interpret Plaintiff’s intended
claims. See Fed.R.Civ.Pro. 8(a)(2) as interpreted by Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 557(2007)(a complaint must do more than provide a “naked assertion” devoid of “further
factual enhancement.”); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(“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.”)
Plaintiff begins with an incident on December 25, 2014, when he was called for
visitation. Defendant Holder began making derogatory comments while complaining about
Plaintiff’s previous grievances. Specifically, the Defendant made reference to Plaintiff’s “black
ass” and called him an “animal.” (Comp, p. 7). Plaintiff says the Defendant then retaliated
against him for his grievances by sexually assaulting the Plaintiff during the required strip
search. Plaintiff alleges the Defendant inserted a pen into his anus.
Plaintiff has adequately alleged Defendant Holder violated his First Amendment rights
when he retaliated against him for his previous grievances with a sexually abusive strip search.
The Plaintiff has also alleged the way the strip search was conducted was a violation of his
Eighth Amendment rights.
On December 29, 2014, Plaintiff returned to the visiting room and Defendant Holder
again verbally harassed him with racial and sexual comments. The Plaintiff does not allege any
other inmates or guards were in the area, nor that the strip search was abusive. Once the search
was complete, Defendant Holder spoke with Defendant Officer Watson and the two retaliated
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For example, paragraph one states Defendant Holder violated Plaintiffs Eight amendment rights based on racist
comments and violated the Fourteenth Amendment based on retaliation for a grievance. (Comp, p.6) However,
paragraph 2 provides specific dates and facts in support of Plaintiff’s allegations against Defendant Holder.

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and conspired against Plaintiff by having him “placed in segregation on totally fabricated
charges.” (Comp., p. 7). Plaintiff does not clarify the basis of those charges, but he has attached
one disciplinary report to his complaint for the minor infraction of having unauthorized
electronics and violation of rules.2 (Comp., p. 57).
For the purposes of notice pleading, the Plaintiff has alleged Defendants Holder and
Watson violated his First Amendment rights when they retaliated against him for his grievances
by issuing a disciplinary report and they also conspired to deprive him of his constitutional
rights.
Plaintiff claims Defendant Holder’s verbal abuse during the strip search states a separate
Eighth Amendment claims. However, “most verbal harassment by jail or prison guards does not
rise to the level of cruel and unusual punishment.” Beal v. Foster, 803 F.3d 356, 358 (7th
Cir.2015). A constitutional claim “may arise where serious verbal harassment is accompanied
by physical conduct, and/or where an officer's harassing conduct places an inmate in danger of
physical harm, such as a potential assault by other prisoners.” Bardo v. Stolworthy, 2015 WL
7713710, at *8 (S.D.Ill., 2015) ADD CITE DATE. Therefore, while the Plaintiff may introduce
evidence of the verbal harassment in support of his claims, he had not stated a separate Eighth
Amendment claim.
Plaintiff says Defendant Officer Barfield was the shift commander on December 29, 2014
and signed Plaintiff into segregation. (Comp., p. 8) Therefore, Plaintiff claims Barfield was
responsible for moving his property to his new segregation cell. Plaintiff says he did not receive
more than $800 worth of his property because Barfield was “negligent.” (Comp, p. 8). “When an
inmate's property has been intentionally destroyed by prison officials and the state provides an
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It is somewhat unclear how Defendant Holder or Watson were involved in the disciplinary charges, since neither
officer wrote the disciplinary ticket. Nonetheless, the Plaintiff has stated a claim against each for the purposes of
notice pleading.

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adequate post-deprivation remedy, the inmate has no §1983 claim.” Marzette v. Walker, 2004
WL 1152849, at *3 (N.D.Ill. May 24, 2004); see also Hudson v Palmer, 468 U.S. 517, 533
(2008)( holding that intentional deprivation of property does not violate due process so long as
adequate state post-deprivation remedies are available). Plaintiff has an adequate postdeprivation remedy in state tort law. See Wynn v. Southward, 251 F.3d 588, 592-93 (7th Cir.
2001); Parratt v. Taylor, 451 U.S. 527, 543-544(1981). Therefore, he has failed to allege a
constitutional violation. In addition, the fact that Officer Barfield was a supervisor is insufficient
to establish he was personally involved in handling Plaintiff’s property and therefore liable for
any potential claim. Burks v. Raemisch, 555 F.3d 592, 593–94 (7th Cir.2009) (“Section 1983
does not establish a system of vicarious responsibility. Liability depends on each defendant's
knowledge and actions, not on the knowledge or actions of persons they supervise.”) (internal
citation omitted). Finally, “a defendant can never be held liable under §1983 for negligence.”
Williams v Shaw, 2010 WL 3835852 at 3 (S.D. Ill. Sept. 24, 2010).
On January 7, 2015, Defendant Anderson sat on the committee which considered the
disciplinary report for unauthorized electronics. The Defendant made reference to Plaintiff’s
previous grievances and then found him guilty of the ticket. Plaintiff received one month of C
grade status and his television was confiscated. (Comp, p. 57). Plaintiff says Anderson found
him guilty and specifically took his television, as opposed to other electronics, in retaliation for
his previous grievances. Plaintiff has stated a First Amendment claim.
Plaintiff says after he received the disciplinary ticket, he was taken to segregation where
he lived for ten days without lights, a clogged sink, feces on the walls and an overflowing toilet.
Consequently, Plaintiff says unknown Safety and Sanitation Coordinators, unknown Safety and
Sanitation Officers and an unknown Medical Inspector are responsible for the operations of the

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facility and they were deliberately indifferent to his living conditions. (Comp, p. 12). It is not
clear whether there are any individuals at Western Illinois Correctional Center with these
specific titles. Furthermore, as the Court has previously noted, the mere fact that an individual is
a supervisor is insufficient to establish liability. See Burks, 555 F.3d at 593–94.
In addition, Plaintiff has identified various individuals who he claims he directly
informed of the problems with his living conditions, but they took no action including:
Counselor Tom Moore; Officers Hamilton, Duncan, Huston, Ham, Shepler, Banta, Tuter,
Powers, Roberts, Haley, Bowen, Beswick, Dorsey, Forman, Ruble, and Parker; and Lieutenants
Fishell and Law. The Plaintiff further alleges these individuals refused to take action in
retaliation for his complaints alleging Officer Holder sexually assaulted him. Plaintiff has stated
an Eighth Amendment claim based on his living conditions and a retaliation claim.
On April 13, 2015, Plaintiff states he was strip searched by Officer Duncan who stated
“We got you now. A grievance is not going to help you.” (Comp. 15) The officer then took his
eyeglasses which Plaintiff says he needs to see. Plaintiff then repeatedly informed Eye Doctor
John Doe that he needed his eye glasses, but Plaintiff did not receive another pair until more than
five months later on October 8, 2015. Plaintiff has stated a retaliation claim against Officer
Duncan and an Eighth Amendment violation against Eye Doctor John Doe for the delay in
providing glasses.
Plaintiff makes various accusations in his complaint based on the grievance procedure.
For instance, he claims Grievance Officer Tara Goins violated his constitutional rights when she
either “disregarded” grievances, or failed to consider his complaints by finding the grievance was
untimely. (Comp., p. 9). In addition, Administrative Review Board Member Debbie Knauer
failed to investigate his grievances. Warden Korte also found Plaintiff’s complaint about the

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grievance procedure was not an emergency and the Warden failed to respond to numerous letters
Plaintiff sent to him. (Comp., p. 10) Furthermore, Defendant Illinois Department of Corrections
Director Salvador Godinez failed to respond to numerous certified letters Plaintiff sent to him
informing him of his various complaints.
The Plaintiff has attached numerous exhibits to his complaint which demonstrate many
grievances were rejected as either untimely or for failure to follow the grievance procedures.
(Comp., p. 46, 54, 60, 67, 70, 73). In addition, Defendant Goins investigated Plaintiff’s claims
of sexual abuse by passing his claims on to the Internal Affairs Division for investigation.
(Comp., p. 45). His grievance was later denied.
Plaintiff has failed to state a constitutional violation based on any of these allegations.
First, “[p]rison grievance procedures are not mandated by the First Amendment and do not by
their very existence create interests protected by the Due Process Clause” of the Fourteenth
Amendment. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir.2011) (citations omitted). The
Constitution requires no procedure at all, and the failure of state prison officials to follow their
own procedures does not, standing alone, 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). Second, “a
failure by a prison official to properly investigate an attack or respond to a prisoner's grievance—
on its own—does not violate the United States Constitution.” Smith v. Eovaldi, 2015 WL
4090350, at *3 (S.D.Ill. July 6, 2015); see also Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir.
2011) (“[T]he alleged mishandling of [a prisoner's] grievance by persons who otherwise did not
cause or participate in the underlying conduct states no claim.”); Geiger v. Jowers, 404 F.3d 371,
374 (5th Cir.2005) (prisoner had no claim for “failure to investigate” a grievance because there
was no “protected liberty interest” in having the grievance “resolved to his satisfaction”). Third,

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a grievance is properly denied if Plaintiff does not follow the proper procedures. Pozo v.
McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002)(prisoner “must file complaints and appeals
in the place, and at the time, the prison’s administrative rules require.”); Green v Litscher, 103
Fed. Appx 24, 27 (7th Cir. 2004) (“a prisoner must complete the grievance process by following
the rules that the facility has established.”) Fourth, “Ruling against a prisoner on an
administrative complaint does not cause or contribute to the violation” and therefore is not a
basis for liability. See George v. Smith, 507 F.3d 605, 609 (7th Cir.2007).
In short, Plaintiff seems to allege “anyone who knows about a violation of the
Constitution, and fails to cure it, has violated the Constitution himself,” but this theory “is not
correct. Only persons who cause or participate in the violations are responsible.” See George,507
F.3d at 609-10.
Plaintiff next claims Warden Goins, Director Godinez, Assistant Warden Ruiz and
Director Baldwin, were each “grossly negligent” in managing staff, because none of them
responded to his complaints or tried to fix the various problems he has alleged. Plaintiff says the
Defendants were deliberately indifferent in violation of his constitutional rights. (Comp., p. 10,
11). In addition, Plaintiff says he wrote various letters to Internal Affairs Lieutenant Megginson
and Assistant Warden Ruiz, but neither responded nor did anything to address his complaints.
“Mere negligence or even gross negligence does not constitute deliberate indifference.”
Borello v. Allison, 446 F.3d 742, 749 (7th Cir. 2006). In addition, Plaintiff has not alleged that
any of these individuals was directly involved in his allegations, and “a supervisor cannot be held
vicariously liable for the actions of others.” Garvin v. Armstrong, 236 F.3d 896, 899 (7th Cir.
2001). Plaintiff “cannot establish personal involvement and subject an official to liability under
§ 1983 based merely upon a …letter writing campaign.” Catrabone v. Farley, 1995 WL 646281,

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at *6 (N.D.Ind. Oct. 10, 1995); see also Lieberman v. Budz, 2010 WL 369614, at *4
(N.D.Ill.,2010)(“ Plaintiff cannot establish personal involvement on the part of Defendants based
on letters he allegedly wrote notifying them about the misconduct.”); Crawford v. Roth, 1994
WL 96659, *3 (N.D.Ill.1994) (prison warden's failure to respond to inmate's letter apprising
warden of misconduct by subordinates insufficient to subject warden to personal liability);
Johnson v. Snyder, 444 F.3d 579, 583-84 (7th Cir.2006) (letters to Director “insufficient to create
a genuine issue of material fact regarding personal responsibility of Director, where Director had
delegated responsibility for reviewing grievances, and there was no evidence that Director had
read letters).
Plaintiff next says Mental Health Works Lynch and Teel violated his rights when they
ignored his letters and “failed to inform me of the procedures for reporting sexual assault.”
(Comp., p. 11). Also, Health Care Unit Administrator Fuqua was deliberately indifferent
because she failed to take action after Plaintiff sent her letters informing her that members of her
staff were violating his constitutional rights.
The Plaintiff has not clearly stated a claim pursuant to §1983. His only allegation against
Lynch and Goins was they failed to tell him how to report a sexual assault, but Plaintiff had
already reported the assault through the grievance procedure the day he alleges it occurred.
Furthermore, the Plaintiff has not articulated how Fuqua violated his constitutional rights based
on the allegations in his complaint.
Plaintiff includes a vague allegation that Wexford Health Sources failed to adequately
train its employees. (Comp., p. 11) Plaintiff does not specify what employees, nor what training
was lacking. The Plaintiff has failed to articulate a constitutional violation.

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Finally, the Court notes throughout his complaint, Plaintiff makes reference to violations
of the Fourteenth Amendment and official capacity claims, but he has failed to articulate relevant
violations.
Plaintiff has also filed a motion for appointment of counsel. [5] In considering the
Plaintiff’s motion, the court asks: “(1) has the indigent Plaintiff made a reasonable attempt to
obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of
the case, does the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647,
654-55 (7th Cir. 2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). While Plaintiff
has not provided evidence of his efforts to find counsel with his complaint, he has provided
copies of relevant letters as exhibits his complaint.
Nonetheless, the Court finds that based on the Plaintiff’s complaint, he is competent to
represent himself at this stage of the proceedings. Plaintiff has coherently set forth each of his
allegations and has provided a factual basis for each claim. Plaintiff has also attached relevant
discovery to his complaint. Once the Defendants are served, the Court will order them to
provide the Plaintiff with additional, relevant discovery and will provide important information
to assist a pro se litigant. Based on the information available the to the court, Plaintiff’s motion
is denied. [5]
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) Defendant Holder violated his First Amendment rights when he retaliated against him
for his previous grievances with a sexually abusive strip search on December 25, 2014.
b) Defendant Holder violated Plaintiff’s Eighth Amendment rights with a sexually
abusive strip search on December 25, 2014.

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c) Defendants Holder, Watson and Anderson violated Plaintiff’s First Amendment rights
when they retaliated against him for his grievances by either issuing a disciplinary report
on December 29, 2014 or finding him guilty of the infraction and taking his television.
d) Defendants Holder and Watson conspired to deprive Plaintiff of his constitutional
rights on December 29, 2014.
d) Defendants Tom Moore; Officers Hamilton, Duncan, Huston, Ham, Shepler, Banta,
Tuter, Powers, Roberts, Haley, Bowen, Beswick, Dorsey, Forman, Ruble, and Parker;
and Lieutenants Fishell and Law violated his Eighth Amendment rights based on his
living conditions in segregation for ten days in April of 2015.
e) Defendants Tom Moore; Officers Hamilton, Duncan, Huston, Ham, Shepler, Banta,
Tuter, Powers, Roberts, Haley, Bowen, Beswick, Dorsey, Forman, Ruble, and Parker;
and Lieutenants Fishell and Law retaliated against the Plaintiff for his complaints of
sexual abuse by keeping him in an unsanitary cell for ten days.
f) Officer Duncan retaliated against the Plaintiff for his grievances when he took his
glasses and refused to return them on April 13, 2015.
g) Eye Doctor John Doe violated Plaintiff’s Eighth Amendment rights when he failed to
provide Plaintiff with glasses for more than five months.
The claims are stated 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) 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.
3) 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.

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4) 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.
5) 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.
6) 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.
7) 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.

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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 or phone number will result in dismissal of this lawsuit, with prejudice.
9) 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 Defendants Godinez, Baldwin, Korte, Ruiz, Megginson, Barfield,
Goins, John Doe Safety and Sanitation Coordinator #1 and #2, John Doe Medical
Inspector, Wexford, Deborah Fuqua, Teel, Lynch, and Knauer for failure to state a
claim upon which relief can be granted pursuant to by 28 U.S.C. §1915A; 2) deny
Plaintiff’s motion for appointment of counsel; [5] 3) Attempt service on Defendants
pursuant to the standard procedures; 4) 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 5) enter the Court's standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
ENTERED this 16th day of December, 2015.
/s/Harold A. Baker
____________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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