Blakes v. Godinez et al
Filing
10
MERIT REVIEW OPINION Entered by Judge Sue E. Myerscough on 7/22/16. IT IS ORDERED THAT THE CLERK IS DIRECTED TO: 1) Grant Plaintiff's motion for leave to file an amended complaint, 8 ; 2) Deny Plaintiff's motion for appointment of counsel 4 ; 3) Dismiss all Defendants named in the amended complaint except Defendants Law, Hamilton, John Doe #1, John Doe #2, Godinez, and Korte; 4) Add Defendants John Doe Tactical Team Members; 5) Attempt service on Defendants pursuant to the standard p rocedures; 6) 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 7) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (SW, ilcd)
E-FILED
Friday, 22 July, 2016 01:44:15 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL BLAKES,
Plaintiff,
v.
DIRECTOR GODINEZ, et. al.,
Defendants.
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CASE NO. 16-CV-3107
MERIT REVIEW OPINION
Sue E. Myerscough, U.S. District Judge.
Plaintiff, proceeding pro se and incarcerated in the Western
Illinois Correctional Center, seeks leave to proceed in forma
pauperis.
This cause is before the Court for merit review of the pro se
Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A. In reviewing
the Complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 649 (7th Cir. 2103). However, conclusory statements and
labels are insufficient. Enough facts must be provided to "'state a
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claim for relief that is plausible on its face.'" Alexander v. U.S., 721
F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).
ALLEGATIONS
The Plaintiff filed an original complaint pursuant to 42 U.S.C.
§1983, but he submitted a document one month later which was
filed as motion for leave to file an amended complaint.[8] The
motion to amend is granted pursuant to Federal Rule of Civil
Procedure 15 and the Court will consider the claims in the most
recent complaint.[8]
Plaintiff says his constitutional rights were violated at the
Western Illinois Correctional Center by Illinois Department of
Corrections (IDOC) Director Godinez, Major Byron Law, Lieutenant
John Hamilton, Warden Jeff Korte, Major John Doe #1, Lieutenant
John Doe #2, the Special Operations Response Team, all
supervisors of the response team, and Operations Chief Yukovick.
Plaintiff’s complaint focuses on statewide cell shakedowns and
inmate searches in April of 2014. Plaintiff says the first search at
Western Illinois Correctional Center took place on April 16, 2014.
Plaintiff says he was forced to strip naked, spread his buttocks, lift
his penis, and then use his fingers to open his mouth for
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inspection. Plaintiff says there were female officers in the area.
Officers then applied painfully tight handcuffs and Plaintiff’s “head
was roughly forced down on the back of the inmate in front of him.”
(Amd. Comp., p. 7). Plaintiff says he had to walk in this painful,
crouched position to the gym. When he complained of pain to the
officers, he was told to shut up.
Once inside the gym, Plaintiff had to stand with his head
against the wall for an hour and a half. At one point, officers
twisted his arms and shoulder while he was still handcuffed
causing additional pain. The incident aggravated an existing back
injury, but when Plaintiff again asked officers for medical care, he
was ignored.
Plaintiff is unable to identify the members of the Special
Operations Response Team or “Orange Crush” who were involved,
but he says Defendants Law, Hamilton, Major John Doe #1, and
Lieutenant John Doe #2 supervised the operation and “failed to
intervene when they observed the cruel acts.” (Amd. Comp., p. 5)
Plaintiff also alleges officers took or destroyed his property and
did not provide a shake-down slip explaining any basis for their
actions.
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On April 18, 2014, the Orange Crush team conducted a
second shake-down of all segregation cells. Plaintiff does not allege
he was strip searched on this occasion, but he says handcuffs were
again applied too tightly. This time Plaintiff was forced to kneel on
cement for a thirty minutes. Plaintiff says the pain was so
excruciating, he fell to the ground on two occasions. The second
time, Orange Crush members began to kick Plaintiff in his ribs and
face. Again, Plaintiff says he cannot identify the Orange Crush
members, but says Defendants Law, Hamilton, Major John Doe #1,
and Lieutenant John Doe #2 supervised and “failed to intervene on
these procedures and acts.” (Comp., p. 8).
Plaintiff says the shakedowns were part of a statewide
procedure ordered by IDOC Director Godinez who is responsible for
the “unconstitutional training and procedures practiced on the
inmates” by the Orange Crush team. (Amd. Comp, p. 7). In
addition, Plaintiff says Western Illinois Correctional Center Warden
Korte was aware of the training and procedures used at his facility.
Finally, Plaintiff alleges the “entire IDOC Special Operations
Team,” all supervisors, and Chief of Operations Yukovich are each
responsible for the suffering of the Plaintiff and all other inmates
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during the searches and shakedowns. Plaintiff is requesting
damages as well as injunctive relief.
ANALYSIS
“A prisoner states a claim under the Eighth Amendment when
he plausibly alleges that the strip-search in question was motivated
by a desire to harass or humiliate rather than by a legitimate
justification, such as the need for order and security in prisons.”
King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015); see also
Ephrain v. Gossett, 2016 WL 3390659, at *3 (C.D.Ill. June 17,
2016).
Even where prison authorities are able to identify a valid
correctional justification for the search, it may still violate
the Eighth Amendment if conducted in a harassing manner
intended to humiliate and cause psychological pain. In short,
where there is no legitimate reason for the challenged stripsearch or the manner in which it was conducted, the search
may involve the unnecessary and wanton infliction of pain in
violation of the Eighth Amendment. King, 781 F.3d at 897
(internal citations omitted).
Plaintiff’s description of the April 16, 2014 strip search as well
as being forced into painful positions for extended periods on both
April 16, 2014 and April 18, 2014 state Eighth Amendment
violations. See Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir.2003)
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(a strip search conducted in a harassing manner intended to
humiliate and inflict psychological pain could violate the Eighth
Amendment); see also Ephrain, 2016 WL 3390659 at *3 (plaintiffs
allegations involving “waiting in the gym over an extended period of
time are sufficient to state a claim that the members of the Orange
Crush team behaved in a way that was either calculated to harass
him or intended to humiliate him and cause him psychological
pain.”). Plaintiff may proceed with both of these claims against the
John Doe members of the Orange Crush team who specifically took
part in the alleged actions. Ross v. Gossett, 2016 WL 335991, at *3
(S.D. Ill. Jan. 28, 2016)(“[c]orrectional officers may not benefit from
a plaintiff's inability to identify particular officers who were involved
in an alleged violation of inmate rights.”). Nonetheless, Plaintiff will
need to identify each of these John Doe Defendants during
discovery and link each individual to the alleged conduct.
Plaintiff also adequately alleges members of the Orange Crush
team used excessive force against him on April 18, 2016, when they
kicked him after he fell to the ground, and Orange Crush members
violated his Eighth Amendment rights when they were deliberately
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indifferent to his serious medical condition by refusing him care on
April 16, 2016.
Plaintiff further alleges Defendants Law, Hamilton, John Doe
#1, and John Doe #2 had a reasonable opportunity to prevent the
Orange Crush members from violating Plaintiff's constitutional
rights on both occasions, but failed to do so. Plaintiff may proceed
with his claim of failure to intervene against these Defendants.
Finally, Plaintiff has stated an official capacity claim against
IDOC Director Godniez and Warden Korte for the policies and
practices used by the Orange Crush team on April 16 and April 18
of 2014.
However, to the extent Plaintiff was attempting to file a lawsuit
on behalf of all inmates against all members of the Orange Crush
teams throughout the state, he cannot do so. Plaintiff is the only
individual who has signed the complaint. See Haywood v. Godinez,
2014 WL 5396167, at *2 (S.D.Ill. Oct, 22, 2014)(each plaintiff must
sign the complaint and pay the filing fee). He has not filed a class
action lawsuit, nor could he proceed with a class action as a pro se
litigant. See Rutledge v. Lane, 2000 WL 689191, at *4 (7th Cir. May
25, 2000). In addition, Plaintiff may only sue defendants who were
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directly involved in the conduct against the Plaintiff. See Munson v.
Gaetz, 673 F.3d 630, 637 (7th Cir.2012).
Plaintiff has failed to articulate claims against Operations
Chief Yukovick or all Orange Crush Supervisors. The theory of
respondeat superior or supervisor liablity does not apply to claims
pursuant to §1983. See Kinslow v. Pullara, 538 F.3d 687, 692 (7th
Cir. 2008); Monell v. N.Y. City Dep't Soc. Servs., 436 U.S. 658, 691
(1978) (no respondeat superior liability); see also Hosty v. Carter,
412 F.3d 731, 733 (7th Cir.2005) (“[Section] 1983 does not create
vicarious liability[.]”).
Finally, Plaintiff has failed to state a claim based on the taking
or destruction of his property on April 16, 2014. Plaintiff may file a
tort claim in the Illinois Court of Claims concerning his property,
and therefore “he has an adequate post-deprivation remedy and his
due process rights thus were not violated with respect to property
seized during the shakedown and not returned, or returned in
damaged condition.”Morissette v. DeTella, 1997 WL 619851, at *8
(N.D.Ill. Sept. 29,1997): see also Hudson v. Palmer, 468 U.S. 517,
(1984)( a prisoner whose property had been intentionally destroyed
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during a shakedown was not deprived of due process because the
state provided an adequate post-deprivation remedy.)
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has filed a motion for the appointment of pro bono
counsel.[4] Although there is no right to court appointed counsel in
federal civil litigation, district courts may ask attorneys to represent
indigent litigants on a volunteer basis. See 28 U.S.C. § 1915(e)(1).
Whether to recruit an attorney is a difficult decision:
Almost everyone would benefit from having a lawyer,
but there are too many indigent litigants and too few
lawyers willing and able to volunteer for these cases.
District courts are thus placed in the unenviable position
of identifying, among a sea of people lacking counsel, those
who need counsel the most. Olson v. Morgan, 750 F.3d
708, 711 (7th Cir. 2014), reh'g denied (May 16, 2014)
In deciding this issue, district courts must ask two questions:
“(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 (7th Cir.
2007), citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). In
this case, Plaintiff has demonstrated at least some attempt to find
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counsel on his own. Therefore, the court must move on to the
second inquiry involving the Plaintiff’s ability to litigate his claims.
The Plaintiff states simply that he is unable to afford
counsel. However, Plaintiff’s complaint is literate and on-point,
coherently setting forth the factual basis of his claims and
describing in detail what happened, the pain he experienced, and
the defendants’ responses to his pleas. Through simple discovery
requests Plaintiff should be able obtain his medical records to
corroborate his medical problems. Plaintiff also may testify
personally to the specific events which happened, the pain he
experienced, his attempts to obtain help, and the responses he
received, which can be used to show evidence of deliberate
indifference. See Ledford v. Sullivan, 105 F.3d 354, 358 (7th Cir.
1997)(expert testimony not necessarily required to establish
deliberate indifference). The Court also notes Plaintiff has at least
some experience litigating §1983 claims. See Blakes v Baker, Case
No. 13-3307.
Finally, once the Defendants are in the case, the Court will
enter a scheduling order which sets deadlines, provide important
information for a pro se litigant, and requires the parties to provide
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initial discovery. Based on the record before the Court, Plaintiff’s
motion is denied. [8]
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) John
Doe Orange Crush members violated Plaintiff’s Eighth
Amendment rights during a strip search and shakedown on
April 16, 2014; b) John Doe Orange Crush members violated
Plaintiff’s Eighth Amendment rights during a shakedown on
April 18, 2014; c) John Doe Orange Crush members were
deliberately indifferent to a serious medical condition on April
16, 2014; d) John Doe Orange Crush Members used excessive
force against the Plaintiff in violation of his Eighth Amendment
rights on April 18, 2016; e) Defendants Law, Hamilton, John
Doe #1, and John Doe #2 failed to intervene to stop the
violation of Plaintiff’s constitutional rights on April 16, 2014,
and April 18, 2014; and, f) Defendants Godinez and Korte
violated Plaintiff’s Eighth Amendment rights based on the
unconstitutional policy and practice of the Orange Crush
team. Any additional claims shall not be included in the case,
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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.
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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.
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:
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1) Grant Plaintiff’s motion for leave to file an amended
complaint, [8]; 2) Deny Plaintiff’s motion for appointment
of counsel[4]; 3) Dismiss all Defendants named in the
amended complaint except Defendants Law, Hamilton,
John Doe #1, John Doe #2, Godinez, and Korte; 4) Add
Defendants John Doe Tactical Team Members; 5) Attempt
service on Defendants pursuant to the standard
procedures; 6) 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 7) enter the
Court's standard qualified protective order pursuant to the
Health Insurance Portability and Accountability Act.
ENTERED: 7/22/2016
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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