Dorsey v. Washington et al
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 10/20/2017: For the reasons stated in the accompanying Memomrandum Opinion and Order, the Court denies defendant's motion for summary judgment [dkt. no. 55]. The case is set for a status hearing on October 26, 2017 at 9:30 a.m. for the purpose of setting a trial date and discussing the possibility of settlement. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 14 C 7627
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
James Dorsey is an inmate at Stateville Correctional Center. He claims to have
written letters to two prison counselors, Timothy Washington and Ada Johnson, in which
he described problems with his cellmate and requested a new cell assignment. Dorsey
claims that Washington shared the letters with other inmates and that the letters have
earned him the reputation of being a "snitch," a dangerous reputation to hold in prison.
Dorsey argues Washington's decision to share the letters violated the Eighth
Amendment by showing deliberate indifference to his safety.
Washington denies all of this: he says he never received the letters, did not
distribute them to other inmates, and did not know that snitches fare poorly in prison.
He has moved for summary judgment. Because a genuine dispute of material fact
exists for Dorsey's claim, the Court denies Washington's motion for summary judgment.
Dorsey is serving a life sentence at Stateville Correctional Center for kidnapping
and murder. In 2012, Cornelius Brown was assigned to Dorsey's cell. Dorsey and his
cellmate began to argue, but Dorsey claims he did not want their arguments to become
physical. Instead, Dorsey wrote two letters: one to Ada Johnson and another to
Timothy Washington, both counselors at the prison. To ensure that the letters were
only seen by their intended recipients, Dorsey claims he folded and taped the letters,
addressed them properly, and watched to ensure that each was collected by prison
staff. Inmates play no role in collecting or distributing mail. Dorsey claims that, after he
sent the letters, Washington spoke to him about his cellmate assignment.
Several weeks after preparing the letters, Dorsey was surprised to learn that his
letters were in the possession of other inmates, who read them aloud. For attempting to
resolve his problems through prison administrators, Dorsey gained the reputation of
being a "snitch." Dorsey alleges that Washington shared the letters because he was
affiliated with the Vice Lords gang, as was Dorsey's cellmate. Washington denies any
affiliation with the gang. Now that the letters have been released, Dorsey claims that he
spends his days in fear of being assaulted or killed in retaliation.
Washington denies he ever received Dorsey's letters. Accordingly, he denies
ever giving the letters to the other inmates. He also denies knowing whether there is
animosity towards snitches or whether a snitch may be subject to retaliation by other
Dorsey claims that Washington's decision to share his letters with other inmates
violated the Eighth Amendment by showing "deliberate indifference" to the "substantial
risk of serious harm" to which he exposed Dorsey. Farmer v. Brennan, 511 U.S. 825,
842 (1994). Washington has moved for summary judgment on Dorsey's claim. A party
is entitled to summary judgment if it "shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). A genuine dispute of material fact exists if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for summary judgment, "the
evidence of the nonmovant is to believed, and all justifiable inferences are to be drawn
in his favor." Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014).
Washington has moved for summary judgment on three grounds. First,
Washington argues Dorsey has not offered evidence from which a reasonable jury
could find that he received the letters, chose to share the letters, or knew that sharing
the letters would expose Dorsey to a risk of harm. Second, he argues Dorsey's claim
for monetary remedies is barred by Eighth Amendment doctrine and the Prison
Litigation Reform Act (PLRA). 42 U.S.C. § 1997e(e). Third, Washington contends
Dorsey has named the wrong party for injunctive relief, as he lacks the authority to
transfer Dorsey to another prison.
For reasons that follow below, the Court denied Washington's motion for
Washington argues that summary judgment is warranted because Dorsey failed
to present enough evidence to permit a reasonable jury to find that he received Dorsey's
letters or that he distributed the letters to other inmates with deliberate indifference to
the risks this posed to Dorsey. A prison official acts with deliberate indifference if he or
she acts despite knowing of a substantial risk of serious harm to the prisoner. Farmer,
511 U.S. at 843. Prisoners may face a "substantial risk" if the risk is "attributable to
detainees with known 'propensities' of violence toward a particular individual or class of
individuals" or to "'highly probable' attacks." Brown v. Budz, 398 F.3d 904, 911 (7th Cir.
2005). "Serious harm" must be objectively serious enough as to amount to a "denial of
the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834.
First, Washington argues that Dorsey has not offered evidence from which a
reasonable jury could find that he ever received Dorsey's letters. The Court disagrees.
A reasonable jury could infer that Dorsey sent his letters to Washington and Johnson;
Washington received his letter; and Washington relied on information contained in the
letter in a later conversation.
First, Dorsey offers the testimony of Sherry Hunter, an administrator at Stateville
prison who testified on mail procedures at the prison. Hunter described how prison
employees, not inmates, collect letters placed in the bars of their cells and bring them to
counselors. Hunter Dep. at 10-12. She could not recall any incident in which mail
picked up by staff was given to another inmate. Id. at 12. Hunter also noted that the
prison keeps no record of the pickup and delivery of letters. Id. at 13.
In Dorsey's declaration, he asserts that he watched prison staff collect each letter
from the bars of his cell. Dorsey Decl. ¶ 3. He also states that, several weeks he sent a
letter to Washington, Washington relied on the information in the letter when he said he
would help Dorsey find a new cell. Id. ¶ 5. This evidence would permit a reasonable
jury to find that Washington received Dorsey's letter. 1
For this reason, the Court need not address Dorsey's "mailbox rule" argument.
Second, Washington contends that Dorsey has failed to present any evidence
that he distributed the letter with deliberate indifference to the risks it would pose for
Dorsey. Washington first argues that he could not have acted with deliberate
indifference in disclosing the letter, because he never received it. The Court rejects this
argument for the reasons discussed above. Next, Washington argues that, even if he
distributed the letter, there is no evidence that he was deliberately indifferent to the risk
that this would subject Dorsey to significant harm.
The "deliberate indifference" analysis asks whether an individual was subjectively
aware of a "substantial risk of serious harm." Farmer, 511 U.S. at 842. This may be
shown through inferences based on circumstantial evidence or by the fact that the risk
was obvious. Id.
Dorsey has presented enough circumstantial evidence to permit a reasonable
jury to find that Washington was aware of a significant risk of serious harm to him. In
Dorsey's letter to Washington, he describes his cellmate as a "knuckle headed young
disrespectful Gang Banger." Pl.'s Ex. C, Dorsey Letter to Washington at 1. Dorsey
alleges that his cellmate was a member of the Vice Lords, a street gang with which he
contends Washington was also affiliated. Dorsey Decl. ¶ 9. Dorsey presents deposition
testimony from multiple inmates who testified that addressing problems with a cellmate
directly with the cellmate was preferable to reporting the problems to prison
administration. Davis Dep. at 24-25, 28; Moore Dep. at 13; Ray Washington Dep. at 9
(Ray Washington is an inmate unrelated to Timothy Washington); Dorsey Dep. at 80.
Two testified regarding the violent reprisals snitches usually face. Moore Dep. at 13;
Dorsey Dep. at 80. In deciding a motion for summary judgment summary judgment, the
Court draws reasonable inferences in favor of the non-moving party. Tolan, 134 S. Ct.
at 1863. A reasonable jury could infer from these facts that Washington, an
experienced prison counselor, recognized the provocative nature of Dorsey's letter and
released it anyhow, knowing it would prompt a violent reprisal.
Additionally, for purposes of summary judgment, Dorsey can demonstrate that
Washington was subjectively aware of the risk, because a reasonable jury could find
that the fact at issue—being perceived as a stool pigeon in prison is dangerous—is
obvious. The Seventh Circuit has taken notice of this fact in at least two cases. See
Merritte v. Kessel, 561 F. App'x 546, 548 (7th Cir. 2014) ("Branding an inmate a snitch
can expose him to serious harm and may violate the Eighth Amendment."); Dale v.
Poston, 548 F.3d 563, 570 (7th Cir. 2008) ("[I]t's common knowledge that snitches face
unique risks in prison").
Dorsey must also show that the risk of which Washington was aware was a
"substantial risk of serious harm." Farmer, 511 U.S. at 842. Dorsey offers enough
evidence to permit a reasonable jury to find that this was so. A party can establish a
substantial risk by showing they are likely to be victim of a "highly probable" attack.
Brown, 398 F.3d at 911. A reasonable jury could find that being labeled a snitch puts a
prisoner in the position of a highly probable attack. In his deposition, Dorsey describes
a death threat he allegedly received the very night that the letter was shared. Dorsey
Dep. at 59. He lists numerous threats that have since followed, including "[y]ou need to
be butchered" and "[i]f you get caught right, your head will be split open." Dorsey Decl.
¶ 13. Thus Dorsey shows sufficient evidence to show a genuine dispute over
Washington's knowledge of the substantial risk of serious danger to which he allegedly
exposed Dorsey, and the Court denies Washington's motion for summary judgment.
Washington argues he is entitled to summary judgment on Dorsey's claims for
monetary relief, as the Seventh Circuit's interpretation of the Eighth Amendment and the
PLRA both bar Dorsey from damages. The Court disagrees.
First, Washington argues that a failure-to-protect claim requires a showing of
actual injury to support an award of damages. The Seventh Circuit once held this
position, see Babcock v. White, 102 F.3d 267 (7th Cir. 1996), but it has abandoned this
rule. Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003). In Babcock, the Seventh Circuit
held that a plaintiff could not recover any damages on an Eighth Amendment claim
resting on a "fear of assault" that did not include actual injury. Babcock, 102 F.3d at
272. Babcock permitted recovery for a claim lacking an injury, however, if the plaintiff
showed the official's conduct was motivated by an official's "malicious or sadistic
conduct." Id. at 270. The reason was that claims, even those lacking a physical injury,
arising from an official's malicious intent can be considered excessive force claims,
rather than conditions-of-confinement claims. Because excessive force claims require a
lower threshold of objective harm than conditions-of-confinement claims, they do not
require the same showing of physical injury. Id. at 273.
In Calhoun, the Seventh Circuit departed from Babcock. It described the
passage in Babcock that rejected the possibility of nominal damages as dicta and held
that nominal damages are available for an Eighth Amendment violation that is not
accompanied by physical injury. Calhoun, 319 F.3d at 941-42. Some district judges
within the Seventh Circuit have reconciled these two cases by holding that nominal
damages are now only available for injuries arising from malicious or sadistic conduct.
See, e.g. Czapiewski v. Thomas, No. 16 C 426, 2017 WL 1274160 (E.D. Wis. Apr. 3,
2017) (nominal damages are appropriate in cases in which prison officials acted
maliciously or sadistically); Donaldson v. Baldwin, No. 16-cv-01128-MJR, 2017 WL
513918 (S.D. Ill. Feb. 8, 2017) (same); McCutcheon v. Schicker, No. 3-13-cv-00779JPG-PMF, 2016 WL 1068821 (S.D. Ill. Feb. 8, 2016) (same); Knowlin v. Raemisch, No.
08-cv-745-bbc, 2009 WL 2135122 (W.D. Wis. July 14, 2009) (same).
The Court respectfully disagrees. First, nothing in the text of Calhoun limits its
reasoning to Eighth Amendment injuries arising from malicious or sadistic conduct.
Indeed, if the impact of Calhoun was limited to malicious or sadistic conduct, it is not
clear why the Seventh Circuit would have needed to address Babcock, which already
permitted recovery for injuries arising from such conduct. See Babcock, 102 F.3d at
270. Consistent with Calhoun, the Court concludes that nominal damages are available
to Dorsey in the absence of a showing of physical injury, irrespective of whether
Washington acted maliciously or sadistically. See also Gevas v. Harrington, No. 10-cv493-SCW, 2014 WL 4627689 (S.D. Ill. Sept. 16, 2014).
Next, Washington argues the PLRA bars Dorsey from recovery. The PLRA,
however, only bars a prisoner from recovering compensatory damages for a claim of
mental or emotional injury unless the prisoner also has a physical injury. 42 U.S.C. §
1997e(e). Punitive and nominal damages remain available for such a claim. Calhoun,
319 F.3d at 940-41. Moreover, section 1997e(e) does not restrict recovery of damages
for non-physical injuries other than emotional or mental injuries, such as, when
appropriate, damages for deprivation of the constitutional right itself. 2 Id.
Because Dorsey has not alleged any physical injury, he cannot recover
compensatory damages for mental or emotional injuries on his constitutional claim. The
Court denies Washington's motion to the extent it addresses any other damages.
Washington has moved for the Court to grant summary judgment on Dorsey's
request for an injunction transferring him to another prison. The proper party for an
injunction in prison litigation is the official that "would be responsible for ensuring that
any injunctive relief is carried out." Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.
2011). Washington, a prison counselor, lacks the authority to transfer Dorsey to
another prison. Dorsey notes that Washington did not raise this argument earlier in the
Dorsey proposes using Federal Rule of Civil Procedure 19 to seek joinder of the
proper party. Rule 19, however, generally concerns lawsuits that should not proceed
without absent litigants who have an interest that would be affected by the proceeding.
See Fed. R. Civ. P. 19(a)(1). That is not the situation here. Rule 15, not Rule 19, is the
proper mechanism here. Rule 15 permits a plaintiff to amend his or her complaint with
the consent of the opposing party or the court's leave. Fed. R. Civ. P. 15(a)(2). If
Dorsey wishes to pursue his claim for injunctive relief, he should move to amend his
complaint to add the appropriate party.
For the foregoing reasons, the Court denies defendant's motion for summary
The Court need not and does not now address whether the latter type of damages is
recoverable in a failure-to-protect case.
judgment. [dkt. no. 55]. The case is set for a status hearing on October 26, 2017 at
9:30 a.m. for the purpose of setting a trial date and discussing the possibility of
MATTHEW F. KENNELLY
United States District Judge
Date: October 20, 2017
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