Clay v. Sloan et al

Filing 12

SECOND MERIT REVIEW OPINION: Plaintiff's amended complaint is dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915A. Plaintiff's motion for counsel is denied as moot (d/e 5 ). Plaintiff's motion to correct the deductions from his account is denied (d/e 8 ), with leave to renew attaching his relevant trust fund ledgers and circling the alleged improper deductions. This dismissal shall count as one of the plaintiff's three allotted &q uot;strikes" pursuant to 28 U.S.C. Section 1915(g). Plaintiff must still pay the full filing fee of $350 even though his case has been dismissed. If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this Co urt within 30 days of the entry of judgment. The clerk is directed to record Plaintiff's strike in the three-strike log. The clerk is directed to enter a judgment pursuant to Fed. R. Civ. P. 58 and to close this case. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 7/11/2017. (GL, ilcd)

E-FILED

Tuesday, 11 July, 2017 09:23:30 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MR. WILLIE CLAY,
Plaintiff,
v.
MR. SLOAN AND
MR. UNDERWOOD,
et al.
Defendants.

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17-CV-4108

SECOND MERIT REVIEW OPINION
On May 25, 2017, the Court dismissed Plaintiff’s complaint for
failure to state a claim, with leave to file an amended complaint.
Plaintiff’s allegations in his original complaint were as follows:
I was coming from personal property. I was passing
three inmates and a food supervisor Sloan. One of the
inmates made a gay joke about me having on some tight
jeans. I told him not to play with [illegible] orderly
fashion. However the food supervisor thought the
comment was funny. So I walk off from them, as I was
walking the food supervisor Sloan started calling me
back, and I refused to walk back to be taunted by the
food supervisor Sloan so Officer Underwood approached
food supervisor Sloan and asked him what the problem.
That’s where I became all kinds of black motherfucker
stupid ass people. Dumb motherfucker, and food
supervisor Sloan told Underwood I told the dumb ass fag
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to come back and he did not. Food supervisor Sloan told
Underwood the fucker looks gay in those jeans.
Everything should be on tape. July 26, 2016 this is a
sexual offense. After all this was over he told me to look
into his eyes. I refused to do so then he took my I.D. and
told me you’re zipper’s down asshole. This happened in
front of chow hall and in front of the commissary around
9:30 a.m.
(Pl.’s 7/26/16 grievance, d/e 1, p. 11.) As the Court stated in its
prior order, according to the grievance response, an investigation
was conducted and the grievance was denied because Plaintiff’s
allegations could not be substantiated. The grievance response
states that food supervisor Sloan denied Plaintiff’s allegations and
told investigators that he had tried to call Plaintiff back only to tell
Plaintiff that his zipper was broken.
The Court dismissed Plaintiff’s complaint for failure to state a
claim because Plaintiff was complaining about one isolated incident
of harassment, citing Beal, which stated that “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). The Court noted that the cases in which verbal
harassment in prison is actionable typically occurred on more than
one occasion and amounted to intimidation or threats. For
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example, in Beal, the plaintiff alleged that a guard made sexual
comments toward the plaintiff, telling plaintiff to “place his penis”
inside another inmate and that if the plaintiff placed his penis
inside another inmate’s mouth that would make the inmate smile.
803 F.3d at 358. The defendant in Beal also allegedly showed his
“own penis in repeated public urinations.” Id. Other inmates
allegedly called the plaintiff in Beal “‘punk, fag, sissy, and queer[,] .
. . possibly inspired or encouraged by [the defendant’s] comments.’”
See also Hughes v. Farris, 809 F.3d 330 (7th Cir. 2015)(allegations
stated constitutional claim where civil detainee’s supervisor called
Plaintiff “‘sissy, faggot, bitch, whore, slut . . .’” and “‘encourage[d]
other residents to take reprisals against the plaintiff because he is
gay[,]’” including ramming a broom up the plaintiff’s rectum).
The Court noted in its prior order that no plausible inference
arose from this single isolated interaction that Plaintiff was harmed
or subjected to an increased risk of harm. The Court also noted
that, according to the grievance response, Plaintiff’s grievance was
taken seriously and an investigation was conducted. Compare with
Hughes v. Scott, 816 F.3d 955, 956 (7th Cir. 2016)(civil detainee
stated claim based on name-calling, veiled threat that his life
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“would go better if he stopped complaining,” and refusal to answer
his grievances).
Plaintiff has filed an amended complaint, but he adds no
substantive factual allegations. Plaintiff alleges that he was
wondering how he would protect himself if Defendant Sloan tried to
touch him, but no plausible inference arises that Defendant Sloan’s
alleged racial and homosexual remarks on this one occasion put
Plaintiff at a risk of harm. Plaintiff also alleges that he had no
zipper, which purportedly shows that Defendant Sloan was lying,
but the Court has already assumed that Plaintiff’s version of events
is true. Plaintiff argues that whether the incident was isolated
should not matter, but it does matter for the constitutional
analysis. See Beal, 803 F.3d at 358 (simple (nonactionable)
harassment “is ‘fleeting,’ too limited to have an impact.”); DeWalt v.
Carter, 224 F.3d 607 (7th Cir. 2000)(officer’s “sexually suggestive
and racially derogatory comments” to prisoner on one day did not
state constitutional claim, nor did prison administrator’s use of
racial derogatory terms on another day). Here, Plaintiff’s allegations
involve one interaction, not the kind of repeated and intimidating or
threatening harassment alleged in Beal or the Hughes cases. In
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sum, the Court certainly does not condone the alleged behavior of
Defendant Sloan, but that behavior is just not severe enough to rise
to a constitutional violation.
Plaintiff also alleges that he fears that Defendant Underwood
might try to do an unprofessional search of Plaintiff, but Plaintiff is
no longer in the Hill Correctional Center. In any event, no plausible
inference arises that Plaintiff has any reason to fear Defendant
Underwood simply because Underwood did not “do his job” by
reporting the incident.
IT IS ORDERED:
1)

Plaintiff's amended complaint is dismissed with prejudice

for failure to state a claim pursuant to 28 U.S.C. § 1915A. Further
attempts at amendment would be futile because Plaintiff has
already described all the facts that he believes give rise to a
constitutional claim, but those facts do not give rise to a
constitutional claim.
2)

Plaintiff’s motion for counsel is denied as moot (d/e 5)

and also because he has not explained what efforts he made to
obtain an attorney on his own.
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3)

Plaintiff’s motion to correct the deductions from his

account is denied (d/e 8), with leave to renew attaching his relevant
trust fund ledgers and circling the alleged improper deductions.
4)

This dismissal shall count as one of the plaintiff's three

allotted “strikes” pursuant to 28 U.S.C. Section 1915(g).
5)

Plaintiff must still pay the full filing fee of $350 even

though his case has been dismissed. The agency having custody of
Plaintiff shall continue to make monthly payments to the Clerk of
Court, as directed in the Court's prior order.
6)

If Plaintiff wishes to appeal this dismissal, he must file a

notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in
forma pauperis should set forth the issues Plaintiff plans to present
on appeal. See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose
to appeal, he will be liable for the $505 appellate filing fee
irrespective of the outcome of the appeal. He may also incur
another strike if his appeal is dismissed for failure to state a claim.

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7)

The clerk is directed to record Plaintiff's strike in the

three-strike log.
7)

The clerk is directed to enter a judgment pursuant to

Fed. R. Civ. P. 58 and to close this case.
ENTERED: July 11, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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