Romero v. Atchison et al

Filing 51

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 11/30/2015:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRANCISCO ROMERO
Plaintiff,
v.
MICHAEL P. ATCHISON, Warden
of the Illinois Department of Corrections,
ET AL.,
Defendants.

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Case No. 15-cv-713
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Francisco Romero (“Romero”) filed a seven-count complaint against various employees
of the Illinois Department of Corrections (“IDOC”) challenging the conditions of his confinement
in three correctional facilities under the Eighth and Fourteenth Amendments and alleging his legal
mail was read in violation of his First and Sixth Amendment rights. Defendants move to dismiss
certain defendants 1, five of the seven counts for failure to state a claim, and argue that any remaining
claims should be severed into separate suits. For the reasons stated below, the Court grants in part
and denies in part the motion.
Background
The following facts taken from the complaint are accepted as true for purposes of ruling on the
motion to dismiss now before the Court. On November 1, 2012, Romero was transferred from
Stateville Correctional Center (“Stateveille”) to Menard Correctional Center (“Menard”) and placed
in administrative detention. Dkt. 1 ¶ 8. Romero’s placement in Stateville was requested by Stateville’s

Plaintiff sued thirty-two IDOC employees. Four of them, Richard Harrington, Barbara Mueller, Timothy Veath, and
Counselor Hall have not yet been served and have not entered an appearance. Defendants move to dismiss seven of the
twenty-eight defendants currently in this suit: Tracy Lee, Joel Shaw, Assistant Warden Tejeda, Cynthia Harris, Jerry
Baldwin, Chad Brown, and Counselor Eilts.

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warden, defendant Marcus Hardy, and approved by the IDOC Director, defendant Salvador
Godinez. Id. Romero was not notified why he was being placed in administrative detention nor was
he given an administrative hearing on the matter. Id. ¶ 9.
On December 12, 2012, members of the John Howard Association (“JHA”), an organization
that monitors and reports on the conditions inside correctional facilities, visited Menard. Romero
spoke with a JHA member about his placement in administrative detention and at that meeting
asked Menard’s Warden, defendant Michael Atchison, for a hearing on his administrative detention.
Romero alleges that in response Atchison became angry, made threatening gestures towards
Romero, and told Romero to “shut up.” Id. ¶ 11. The next day a correctional officer, defendant
Kevin Fedderke, gave Romero a disciplinary ticket for “insolence” and “disobeying a direct order”
based on his interaction with Atchison during the JHA tour. Id. ¶ 12. Romero challenged the ticket
and the ticket was eventually expunged. The report expunging the ticket was signed by defendants
Tracey Lee and Richard Harrington. Id. ¶ 14. That same day, defendant Joshua Schoenbeck required
Romero, against his wishes, to unseal two outgoing letters so that Schoenbeck could review them,
one to the JHA member to whom Romero had spoken and one to Romero’s attorney. Id. ¶ 36.
Romero filed a grievance about the search of his legal mail, but it was dismissed. Id. ¶ 37. At some
point defendant Barbara Mueller told Romero that he would be disobeying a direct order if he sealed
his outgoing legal mail. Id. ¶ 38.
Romero remained in administrative detention at Menard until he was transferred back to
Stateville on November 12, 2013. Id. ¶ 16-18. While in administrative detention at Menard,
Romero’s cell had no heat in the winter, and his windows did not fully close. Id. ¶ 42. During the
summer, Romero alleges his cell was unbearably hot. Id. ¶ 43. Other housing units were provided
fans and ice water twice daily to help deal with the heat, but prisoners in administrative detention
were not provided those accommodations. Id.
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Romero remained in administrative detention when he was transferred back to Stateville in
November 2013. Defendant Joel Shaw told Romero he was in administrative detention because of
the December 2012 ticket. Id. ¶ 18. In January 2014, defendant Cynthia Harris gave Romero an
orientation manual for his housing unit which stated that a minimum of nine months in
administrative detention was required. Id. ¶ 19. Romero filed a grievance with an assistant warden,
defendant Tejeda 2, regarding the nine-month-minimum policy. Id. ¶ 20. In February 2014, Romero
spoke to a counselor supervisor, defendant Jerry Baldwin, about the lack of response to his
grievance, but Baldwin took no action in response to Romero’s complaint. Id. ¶ 22. While in
administrative detention at Stateville, the toilets in Romero’s cell were often backed up. Id. ¶ 49. His
cell was routinely flooded with urine and feces. Id. During the winter, Romero’s cell was cold
enough that Romero could see his own breath. Id ¶ 55.
On April 2, 2014, Romero was transferred to Pontiac Correctional Center (“Pontiac”). Id. ¶ 24.
The next month, a counselor at Pontiac, defendant Eilts, told Romero that he had received
Romero’s grievance about his administrative detention and had ripped it in half. Id. ¶ 26. On August
12, 2014, Plaintiff had a hearing about his administrative detention before a committee comprised of
defendants Pierce, Koechel, Posey, Jennings, and Chad Brown. Id. ¶ 30. Six days later, Romero was
informed that the committee recommended that Romero remain in administrative detention. Id. ¶
31. While in administrative detention at Pontiac, Romero’s cell was infested with ants, mice, and
bugs. Id. ¶ 57. Romero continued to remain in administrative detention up until the filing of his
complaint, id. ¶ 35, and the Court has received no indication of any change to his confinement.

2 Plaintiff has not named defendant Tejeda by first name, only by his position, assistant warden. Plaintiff also did not
provide first names for defendants Hasenmeyer, Hughes, Cowan, Hall, Pierce, Posey, Koechel, Snyder, Jennings,
Starkey, Eilts, and Trancoso.

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Legal Standard
A complaint will survive a motion to dismiss under Rule 12(b)(6) if its well-pleaded facts when
accepted as true and viewed in the light most favorable to the plaintiff state a plausible claim for
which relief can be granted. Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014). A plaintiff may
only bring different claims against different defendants in a single suit if the claims arise “out of the
same transaction, occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 20. An
official is not a proper defendant in a suit alleging constitutional violations unless that official caused
or participated in the violation. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). An official who
fails to prevent or remedy a constitutional violation he knows is occurring can be found to have
caused or participated in the violation. Id. (“A guard who stands and watches while another guard
beats a prisoner violates the Constitution . . .”).
Discussion
Prolonged Administrative Detention
Defendants move to dismiss Romero’s due process claim because they assert “inmates do not
have any due process rights associated with administrative detention.” Dkt. 38 at 6. But the Seventh
Circuit has held that an inmate’s liberty interest is affected whenever he is placed “in conditions
more restrictive than those in the general population” if the conditions “are particularly harsh” or if
the inmate is subject to those conditions “for a significantly long time.” Earl v. Racine Cty. Jail, 718
F.3d 689, 691 (7th Cir. 2013). In Marion v. Columbia Correction Inst. the Seventh Circuit reversed the
dismissal of an inmate’s due process claim where the inmate had been segregated for 240 days,
finding that he should be permitted to develop a factual record regarding the specific conditions of
the segregated confinement. 559 F.3d 693, 698 (7th Cir. 2009). Romero alleges he has been in
administrative detention continuously since November 1, 2012. If that allegation is true, when
Romero filed his complaint in this suit he had been in segregated confinement for 813 days. As was
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the case in Marion, the alleged length of his segregated confinement alone makes his due process
claim sufficient to survive a motion to dismiss.
Conditions of Confinement
Defendants argue that the prison conditions described by Romero in his complaint are not
sufficiently severe enough to violate the Eighth Amendment. The Eighth Amendment prohibits
denials of “the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834
(1994). The basic life necessities of which prisoners cannot be deprived include adequate shelter,
heat, and sanitation. Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006).
When an inmate alleges he was subject to extreme temperatures and was denied reasonable
means of protecting himself from the risk of harm caused by those extreme temperatures, he has
stated an Eighth Amendment claim. See White v. Monohan, 326 F. App'x 385, 387 (7th Cir. 2009)
(collecting cases). Likewise, unhygienic conditions combined with a denial of cleaning supplies can
violate the Eighth Amendment. Budd v. Motley, 711 F.3d 840, 843 (7th Cir. 2013). In particular,
exposure to human waste, even for as little as three days, is constitutionally impermissible. VinningEl v. Long, 482 F.3d 923, 924 (7th Cir. 2007).
Romero contends that at Menard and Stateville he was deprived of adequate protection from
extreme cold and heat. Dkt. 1 ¶42-43, 55. He also claims that his cell at Stateville, where he was
incarcerated for almost five months, routinely flooded with human fecal matter. Id. ¶ 49. These
allegations are sufficient to support an Eighth Amendment claim. However, Romero’s claims
regarding Pontiac fall short. Although Romero complains of pest infestation, he does not provide
sufficient detail to allow this Court to infer that the infestation rose to the level of an Eighth
Amendment violation. See, e.g., Smith v. Dart, 803 F.3d 304, 312 (7th Cir. 2015) (“[W]e are left in the
dark as to how extensive the infestations are and how the pests affect him.”) Accordingly, Count 4
of Romero’s complaint is dismissed.
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Search of Legal Mail
Defendants move to dismiss Romero’s claim regarding the search of his legal mail on the basis
that only routine opening and reading of legal mail is actionable, and here Romero has complained of
just a single occasion on which his legal mail was read. Romero counters that his allegation that the
he was told he could not seal his outgoing legal mail supports an inference that his legal mail was
being read routinely. This Court agrees. Romero’s claim regarding the search of his legal mail may go
forward.
Personal Involvement of Defendants
Defendants Lee, Shaw, Tejeda, Harris, Baldwin, Brown, and Eilts maintain that Romero failed
to plead their personal participation in the alleged unconstitutional deprivations. Instead, they argue,
Romero has simply alleged that these defendants mishandled Romero’s grievances, which cannot
form the basis of a constitutional claim.
Defendants misapprehend the significance of Romero’s allegations. The failure to respond to
Romero’s grievances does not by itself violate the Constitution, but it establishes that the officials
were made aware of the conditions of Romero’s confinement and failed to intervene to remedy
them. Where a grievance filed by Romero raised a constitutional concern, the officials that
disregarded those grievances are akin to the guard who violates the constitution because he “stands
and watches while another guard beats a prisoner.” George, 507 F.3d at 609. If Romero’s allegations
are proven true, defendants Tejeda, Baldwin, Brown and Eilts are such officials. Tejeda received
Romero’s grievance about the nine-month-minimum administrative detention policy. Dkt. 1 ¶ 20.
This provided Tejeda with enough information to question whether Romero was being afforded
adequate due process, but Tejeda took no action. Baldwin was made aware of Romero’s prolonged
administrative detention on February 6, 2014, when Romero had been segregated for 462 days, but
Baldwin took no action. Id., ¶ 22. Brown reviewed Romero’s administrative detention on August 18,
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2014, when Romero had been segregated for 655 days, and Brown recommended that Romero
continue to be segregated. Id. ¶ 30-31. Eilts received a grievance from Romero in May 2014 about
the conditions of Romero’s administrative detention, and rather than move the grievance through
the administrative process, Eilts disposed of the grievance by ripping it up. Id. ¶ 26-27. If Romero’s
prolonged administrative detention violated his due process rights, then these officials’ failure to act
when made aware of his administrative detention caused the violation of Romero’s rights to
continue.
However, Romero’s allegations regarding Lee, Shaw and Harris are insufficient. Romero’s sole
allegation against Lee is that he signed the report which expunged Romero’s ticket. Dkt. 1 ¶ 14.
Romero does not then allege that Lee knew other officials relied on the expunged ticket to justify
Romero’s continued administrative detention. Similarly, Romero alleges that Shaw informed
Romero he was in administrative detention because of the December 2012 ticket. Id. ¶ 18. Romero
does not allege that Shaw knew the ticket had been expunged, and therefore had reason to question
if Romero was being afforded due process. With respect to Harris, Romero only alleges that he gave
Romero the manual that contained the nine-month-minimum policy. Dkt. 1 ¶19. Romero does not
allege that Harris knew what the manual said. Nor does Romero allege that Harris knew Romero in
particular was being held in prolonged administrative detention without review. Therefore
Defendants Lee, Shaw, and Harris are dismissed from this action.
Severability of Claims
Defendants argue that Romero’s claims should be severed into separate suits. In particular, they
maintain that the claims against officials from each correctional facility are legally and factually
distinct. According to Romero, the claim that binds the defendants together is his due process claim
regarding his prolonged administrative detention. Romero argues his placement in administrative
detention was a “continuing process, not separate placements at different facilities.” Dkt. 40 at 5.
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Pursuant to Rule 20, different claims against different defendants can be joined in a single suit if
the claims arise “out of the same transaction, occurrence, or series of transactions or occurrences.”
Fed. R. Civ. P. 20. Because the purpose of joinder is to promote judicial efficiency, “the impulse is
toward entertaining the broadest possible scope of action consistent with fairness to the parties.”
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). The Seventh Circuit has not set out a
test for determining whether events form part of the same transaction, occurrence, or series thereof
for purposes of Rule 20. But with respect to compulsory counterclaims under Rule 13, the Seventh
Circuit has adopted the “logical relationship test” which dictates that when courts determine if
claims arise out of the same transaction or occurrence, they should consider “the totality of the
claims, including the nature of the claims, the legal basis for recovery, the law involved, and the
respective factual backgrounds.” Bd. Of Regents of Univ. Of Wisconsin Sys. v. Phoenix Int'l Software, Inc.,
653 F.3d 448, 470 (7th Cir. 2011).
The Court sees no reason here to sever Romero’s claims into separate suits. Defendants have
not identified any unfairness to which they will be subjected if the claims are dispensed with in a
single suit. Furthermore, the allegations in Romero’s complaint support the inference that his
administrative detention in Menard, Stateville, and Pontiac was all part of one continuous
transaction. Romero alleges he has been in administrative detention continuously since November
2012. Additionally, Romero alleges that when he was transferred from Menard back to Stateville, he
was told he was being held in administrative detention because of a ticket he had received at
Menard. Dkt. 1 ¶ 18. These allegations indicate that the decision to hold Romero in administrative
detention was not made independently at each facility, but rather collaboratively across facilities.
While the relationship between the conditions of Romero’s confinement and the search of his legal
mail is more tenuous, the defendants against which the legal mail claim is brought are all also
defendants in Romero’s due process claim. Under Rule 18(a), “a plaintiff may put in one complaint
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every claim of any kind against a single defendant.” Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 683 (7th Cir. 2012); Fed. R. Civ. P. 18. Thus resolution of the legal mail claim in the same suit
as the due process claim is appropriate.
Conspiracy Claims
In the preliminary statement of the complaint, Romero alleges he seeks relief under 42 U.S.C. §1983
and 1985 (3). Section 1985 creates a private right of action against persons who conspire to deprive
others of their rights under federal law. 42 U.S.C. § 1985. Defendants argue that no claim for
conspiracy has been properly pled and that a conspiracy claim is barred by the intercorporate
conspiracy doctrine. Romero does not oppose the dismissal of his conspiracy claims. Accordingly
Romero’s conspiracy claims are dismissed.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is granted in part and denied in part.
Romero’s conspiracy claims are dismissed with prejudice, as is Count 4. Defendants Lee, Shaw, and
Harris are also dismissed from the suit. Defendants’ motion to dismiss is denied with respect to the
remaining claims against the remaining defendants.

IT IS SO ORDERED.
_____________________________
SHARON JOHNSON COLEMAN
United States District Judge
DATED: November 30, 2015

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