Garrett v. Schwatz et al

Filing 12

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Plaintiff fails to state a claim for retaliation or loss of personal property against DEFENDANT HARRIS. Therefore, Plaintiffs claims against DEFENDANT HARRIS are dismissed without prejudi ce to any state court claim. IT IS FURTHER ORDERED that, should Plaintiff wish to avoid the proposed severance of the separate retaliation claim against DEFENDANT BRADLEY, Plaintiff shall file his motion to voluntarily dismiss this claim within 45 d ays of the date of this order (on or before November 3, 2011). If no motion is filed by this deadline, severance shall proceed, a new case shall be opened, and a new filing fee assessed. Service shall not be made on DEFENDANT BRADLEY until after the expiration of the time for Plaintiff to file his motion to voluntarily dismiss. IT IS FURTHER ORDERED that Plaintiff shall file any exhibits which should be considered along with the First Amended Complaint, within 14 days of the date of this order (on or before October 4, 2011). IT IS FURTHER ORDERED that, as to Count 1 of the First Amended Complaint, the Clerk of Court shall prepare for Defendants COLGAN, MYERS, LT. DINTELMANN, SCHWATZ, and URBANEK (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Donald G. Wilkerson added. Officer Harris terminated. (Action due by 11/3/2011). Signed by Judge G. Patrick Murphy on 9/19/2011. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT GARRETT, DOC # N74351,
Plaintiff,
vs.
GREGORY SCHWATZ, LIEUTENANT
DINTELMAN, C/O COLGAN, C/O
MYERS, OFFICER HARRIS, OFFICER
URBANKE, and LIEUTENANT BRADLEY,
Defendants.

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CIVIL NO. 10-955-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court for review of Plaintiff’s First Amended Complaint (Doc. 11),
which was timely filed in response to this Court’s Order of July 27, 2011 (Doc. 10). Plaintiff was
ordered to file the amended complaint to name the Defendants responsible for the retaliatory acts
alleged in Count 2 of the original complaint. Plaintiff was also ordered to re-file any exhibits he
wished the Court to consider along with his First Amended Complaint. Before this matter can be
referred to the Magistrate Judge for further proceedings, the Court must evaluate whether the First
Amended Complaint complies with the Court’s prior order, and whether the amended allegations
survive review pursuant to 28 U.S.C. § 1915A.
Plaintiff’s allegations in Count 1 of the First Amended Complaint, against Defendants
Colgan, Myers, Lt. Dintelmann, and Schwatz, are sufficient to proceed to the next stage of litigation.
However, Plaintiff neglected to file any of the exhibits to which he refers in the First Amended

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Complaint (Doc. 11, p. 4-6). Should Plaintiff wish the Court to consider these exhibits, he may file
them within 14 days of the date of entry of this Order. If the exhibits are not filed within this
deadline, Plaintiff must file a proper motion to amend his complaint, pursuant to Federal Rule of
Civil Procedure 15(a) or (d) and Local Rule 15.1.1
Turning to Count 2 of the First Amended Complaint, not all of Plaintiff’s allegations are
adequate to state a retaliation claim against the three new Defendants he names. His original
complaint indicated that the acts of retaliation Plaintiff described – placing him in segregation,
destroying or giving away his property, and placing him in a cell with a hostile inmate who took his
property – were taken as a consequence of Plaintiff filing grievances in February 2009 over the
denial of access to restroom facilities that was the subject of Count 1. However, the allegations in
the First Amended Complaint do not make that connection. Merely stating a legal conclusion that
certain acts constitute “retaliation” is not sufficient to make out a constitutional claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (conclusory legal statements are insufficient to state a claim);
Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (to state a claim for retaliation, a plaintiff must
identify the reasons that retaliation has been taken, as well as “the act or acts claimed to have
constituted retaliation,” so as to put those charged with the retaliation on notice of the claim). To
determine whether Plaintiff’s retaliation claims merit further review, the Court shall examine each
in turn.
Defendant Harris
First, Plaintiff alleges that on August 2, 2010, he was sent to disciplinary segregation (he

1

Pursuant to Southern District of Illinois Local Rule 15.1, the proposed amendment to a
pleading or amended pleading itself must be submitted at the time the motion to amend is filed.
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does not explain why) (Doc. 11, p. 7). When Plaintiff’s property was returned after segregation,
many items were missing, and his TV and fan were broken. Plaintiff asked Defendant Harris about
the property, and Defendant Harris replied, “that’s the price you pay if you come to seg” (Doc. 11,
p. 7). Plaintiff does not allege any connection between this incident and Plaintiff’s earlier
grievances over the denial of bathroom access, which he filed soon after February 9, 2009, more
than a year before the loss of his property. Moreover, Plaintiff does not allege that the incident
involving Defendant Harris was retaliatory in any way. Instead, Plaintiff alleges that Defendant
Harris was deliberately indifferent to Plaintiff’s complaint over his personal property (Doc. 11, p.
9).
These allegations do not state a cause of action for retaliation. Nor do they state a claim for
deliberate indifference or any other constitutional claim. The only constitutional right that might
be implicated by these facts is Plaintiff’s right, under the Fourteenth Amendment, to be free from
deprivations of his property by state actors without due process of law. To state a claim under the
due process clause of the Fourteenth Amendment, Plaintiff must establish a deprivation of liberty
or property without due process of law; if the state provides an adequate remedy, Plaintiff has no
civil rights claim. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984) (availability of damages remedy
in state claims court is an adequate, post-deprivation remedy). The Seventh Circuit has found that
Illinois provides an adequate post-deprivation remedy in an action for damages in the Illinois Court
of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d
1031, 1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8 (1995).
Accordingly, this portion of the claim does not survive review pursuant to 28 U.S.C.
§ 1915A, and the claim against Defendant Harris must be dismissed.

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Defendant Bradley
Next, Plaintiff alleges that on August 18, 2010, Plaintiff complained to the correctional
officer in charge, and to supervisor(s) about his cellmate, who stole commissary items from Plaintiff
and continually picked fights with him. Despite his complaints, Plaintiff was placed back into the
same cell. Defendant Bradley told Plaintiff that if he had any problems with the cellmate, Plaintiff
should fight the cellmate. Plaintiff again fails to allege that this incident occurred in retaliation for
the grievances he filed after being denied access to the restroom in February 2009. However,
Plaintiff does allege that Defendant Bradley’s refusal to move Plaintiff, and Plaintiff’s continued
placement in the cell he shared with a hostile cellmate, constituted retaliation for the complaints
Plaintiff raised over that cell assignment. Such allegations are adequate to state a retaliation claim
at the pleadings stage. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (naming the protected
activity and the act of retaliation is all that is necessary to state a claim).
That is not the end of the matter. This incident of alleged retaliation does not appear to arise
from the same transaction, occurrence, or series of transactions or occurrences as the events in Count
1. Therefore, it is subject to severance from this action into a separate lawsuit, as shall be discussed
further below.
Defendant Urbanek
Finally, Plaintiff alleges in the First Amended Complaint that on May 12, 2010, Defendant
Urbanek did not allow Plaintiff to use the inmates’ restroom in the law library, and as a result
Plaintiff “use[d] the restroom on himself” because he was unable to hold it (Doc. 11, p. 7, 9).
Although Plaintiff alleges that this event constituted retaliation, the First Amended Complaint fails
to state what protected act Plaintiff engaged in that would have prompted Defendant Urbanek to

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retaliate against him. Accordingly, Plaintiff fails to state a retaliation claim against Defendant
Urbanek. However, for the reasons stated in this Court’s order at Doc. 10, Defendant Urbanek’s
refusal to allow Plaintiff to use the law library restroom despite Plaintiff’s request and explanation
that he had an urgent need to go because of the medication he was taking, may state a claim for
deliberate indifference (see Count 1, Doc. 10, p. 4-7).
Plaintiff appears to claim that Defendant Urbanek’s refusal to allow Plaintiff to use the
restroom while in the law library was due to the policy put in place by Defendant Schwatz, described
in Count 1, that inmates would not be permitted any bathroom breaks during their scheduled class
time (Doc. 11, p. 10-12). Although the incident with Defendant Urbanek occurred on May 12, 2010,
and the incident described in Count 1 took place on February 9, 2009, if both incidents were related
to Defendant Schwatz’ alleged policy restricting inmates’ bathroom breaks, they may be sufficiently
related to be brought in the same action. Therefore, Plaintiff’s claim against Defendant Urbanek
shall be considered as part of Count 1 of this action.
Severance of Claims
As to Count 1 of the complaint, the joinder of the claims against Defendants Colgan, Myers,
Lt. Dintelmann, Schwatz, and now Urbanek, appears to be proper under Rule 20(a)(2) which
provides that persons may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact common to all
defendants will arise in the action.
FED. R. CIV. P. 20(a)(2).
Plaintiff’s claim against Defendant Bradley, originally designated as part of Count 2 of the
complaint, however, does not appear to arise from the same transaction, occurrence, or series of
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transactions or occurrences as the claims in Count 1.
The Seventh Circuit recently confirmed that separate, unrelated claims belong in different
suits. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). On review of the complaint, the claim
against Defendant Bradley in Count 2 of the complaint is not sufficiently related to the claims
against Defendants Colgan, Myers, Lt. Dintelmann, Schwatz, and Urbanek in Count 1 so as to allow
them to proceed together in one lawsuit.
Plaintiff is ADVISED that the Court is inclined to sever the claim against Defendant
Bradley into a separate action. Count 1 would remain in the present action. If this claim is severed,
it would be removed from this case and opened into a new case. A new case number would be
assigned, and a new filing fee would be assessed.
Because the imposition of an additional filing fee may impose a financial burden on him,
Plaintiff is FURTHER ADVISED that he may avoid severance (and the imposition of the additional
filing fee) by filing a motion to voluntarily dismiss the proposed separate claim without prejudice
within 45 days of the date of this order. Again, the current action shall consist only of Count 1
against Defendants Colgan, Myers, Lt. Dintelmann, Schwatz, and Urbanek, for denial of access to
the restroom on February 9, 2009, and May 12, 2010. The proposed new separate action shall be
as follows:
Retaliation claim against Defendant Bradley arising from Plaintiff’s August 18, 2010,
complaint about his cellmate.
Plaintiff may choose to voluntarily dismiss the proposed new separate action against
Defendant Bradley. If Plaintiff dismisses the proposed separate claim, then Count 1 will continue
in this case and no severance will be necessary. If Plaintiff fails to move to voluntarily dismiss the
proposed separate claim within 45 days, then severance shall proceed, a new case opened, and a new
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fee assessed.
Disposition
IT IS HEREBY ORDERED that Plaintiff fails to state a claim for retaliation or loss of
personal property against DEFENDANT HARRIS.

Therefore, Plaintiff’s claims against

DEFENDANT HARRIS are dismissed without prejudice to any state court claim.
IT IS FURTHER ORDERED that, should Plaintiff wish to avoid the proposed severance
of the separate claim outlined above, Plaintiff shall file his motion to voluntarily dismiss this claim
within 45 days of the date of this order (on or before November 3, 2011). If no motion is filed by
this deadline, severance shall proceed, a new case shall be opened, and a new filing fee assessed.
Service shall not be made on DEFENDANT BRADLEY until after the expiration of the time for
Plaintiff to file his motion to voluntarily dismiss.
IT IS FURTHER ORDERED that Plaintiff shall file any exhibits which should be
considered along with the First Amended Complaint, within 14 days of the date of this order (on or
before October 4, 2011).
IT IS FURTHER ORDERED that, as to Count 1 of the First Amended Complaint, the
Clerk of Court shall prepare for Defendants COLGAN, MYERS, LT. DINTELMANN,
SCHWATZ, and URBANEK (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of
a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail
these forms, a copy of the complaint, and this Memorandum and Order to each Defendant’s place
of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of
Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the
Clerk shall take appropriate steps to effect formal service on that Defendant, and the Court will

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require that Defendant to pay the full costs of formal service, to the extent authorized by the Federal
Rules of Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be found
at the work address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant’s
current work address, or, if not known, the Defendant’s last-known address. This information shall
be used only for sending the forms as directed above or for formally effecting service. Any
documentation of the address shall be retained only by the Clerk. Address information shall not be
maintained in the court file or disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants (or upon defense
counsel once an appearance is entered), a copy of every pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date on which a true and correct copy of the document was served on Defendants or
counsel. Any paper received by a district judge or magistrate judge that has not been filed with the
Clerk or that fails to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Wilkerson for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of

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Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
after a transfer or other change in address occurs. Failure to comply with this order will cause a
delay in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 19, 2011
s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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