Williams v. Baker et al

Filing 19

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, Denying 17 MOTION for Hearing filed by Robert Williams, Denying 15 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Robert Williams, Denying 18 MOTIO N for Leave to File filed by Robert Williams, Granting 16 MOTION for Status filed by Robert Williams. IT IS HEREBY ORDERED that COUNT 3 fails to state a claim upon which relief can be granted and thus is DISMISSED without prejudice. DEFENDANTS GA ETZ, MUELLER, COWAN, and RANDLE are dismissed from this action without prejudice. COUNTS 1 and 2 shall receive further consideration. The Clerk of Court shall prepare for Defendants BAKER and CHEATAM: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge Michael J. Reagan on 8/9/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT WILLIAMS, # N-03588

)
)
Plaintiff,
)
)
)
vs.
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C/O M. BAKER, C/O CHEATAM,
)
BARBARA MUELLER,
)
JEANETTE COWAN, WARDEN GAETZ, )
and MICHAEL RANDLE,
)
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Defendants.
)
)

Case No. 11-cv-1043-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Robert Williams, an inmate in Menard Correctional Center
(“Menard”), brings this action for deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983. Plaintiff is serving a twenty-five year sentence for sexual assault. This
case is now before the Court for a preliminary review of the complaint pursuant to 28
U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
28 U.S.C. § 1915A.

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An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim
upon which relief can be granted if it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).

Conversely, a complaint is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although the Court is obligated to accept factual allegations as true, see Smith v.
Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy
or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as
adequate abstract recitations of the elements of a cause of action or conclusory legal
statements.”

Id.

At the same time, however, the factual allegations of a pro se

complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A; portions of this action
are subject to summary dismissal.
The Complaint
The description below is taken from the facts alleged by Plaintiff in his
Amended Complaint.
On December 3, 2009, Plaintiff, while handcuffed, attempted to kick
another inmate in self-defense. Defendants Baker and Cheatam immediately grabbed

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Plaintiff, took him down a flight of stairs, and threw him on his back at the bottom of the
stairs. Defendant Baker then kneed Plaintiff in his jaw, damaging Plaintiff’s lower back
tooth. This incident was in retaliation for prior complaints Plaintiff had lodged against
Defendant Baker and other correctional officers.
On December 6, 2009, Plaintiff submitted an emergency grievance
concerning this incident to Defendant Gaetz, but received no response. Plaintiff waited
another month before filing another grievance with Gaetz. Defendant Mueller tampered
with this second grievance, falsifying the date so that it would appear to be filed one day
beyond the filing deadline. Defendants Cowan and Randle have refused to process or
return his original grievance in a conspiracy to cover up the actions of Defendants
Baker, Cheatam, Gaetz and Mueller.
Plaintiff requests a declaratory judgment and injunctive relief, in addition to
compensatory and punitive damages from each Defendant.
Discussion
Based on the allegations of the complaint, the Court finds it convenient to
divide the pro se action into three (3) counts. The parties and the Court will use these
designations in all future pleadings and orders, unless otherwise directed by a judicial
officer of this Court. The designation of these counts does not constitute an opinion as
to their merit.
Count 1 – Excessive Force
Plaintiff claims that Defendants Baker and Cheatam violated his Eighth
Amendment rights by using excessive force against him on December 3, 2009. The
intentional use of excessive force by prison guards against an inmate without

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penological justification constitutes cruel and unusual punishment in violation of the
Eighth Amendment and is actionable under § 1983. See Wilkins v. Gaddy, 130 S. Ct.
1175 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). An inmate must
show that an assault occurred, and that “it was carried out ‘maliciously and sadistically’
rather than as part of ‘a good-faith effort to maintain or restore discipline.’” Wilkins, 130
S. Ct. at 1180 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). An inmate seeking
damages for the use of excessive force need not establish serious bodily injury to make
a claim, but not “every malevolent touch by a prison guard gives rise to a federal cause
of action.” Id. (the question is whether force was de minimis, not whether the injury
suffered was de minimis); see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir.
2001).
From the facts alleged in Plaintiff’s complaint regarding December 3,
2009, it appears that Defendants Baker and Cheatam, at least initially, were exercising
force as part of an effort to restore discipline. However, once Defendants Baker and
Cheatam had quelled Plaintiff’s disorderly conduct, their use of further force (particularly
the alleged knee to the jaw) could be viewed as “excessive.”

Furthermore, while

Plaintiff’s injured tooth is not dispositive of whether the force was excessive, the fact
that Plaintiff’s injuries required dental work is at least relevant to the level of force used.
Plaintiff has alleged sufficient facts to state a claim that Defendants Baker and Cheatam
subjected him to cruel and unusual punishment through their use of force on December
3, 2009. Therefore, this claim shall receive further review.

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Count 2 – Retaliation
Plaintiff alleges that Defendants Baker and Cheatam used the December
3, 2009, incident as an opportunity to retaliate against him for filing grievances. Prison
officials may not retaliate against inmates for filing grievances or otherwise complaining
about their conditions of confinement. See, e.g., Walker v. Thompson, 288 F.3d 1005
(7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Babcock v. White, 102
F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). Furthermore,
“[a]ll that need be specified is the bare minimum facts necessary to put the defendant
on notice of the claim so that he can file an answer.” 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 of improper retaliation. Id. A complaint that provides a short,
clear statement of the relevant facts complies with the federal rules of civil procedure,
and thus cannot be dismissed because it does not allege all facts necessary to clearly
establish a valid claim. Id.
At issue here is whether Plaintiff experienced an adverse action that would
likely deter First Amendment activity in the future, and if the First Amendment activity
was “at least a motivating factor” in the Defendants’ decision to take the retaliatory
action. Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009). This is a question that
cannot be resolved at the pleading stages of this case. Thus, the Court is unable to
dismiss Plaintiff’s retaliation claim against Defendants Baker and Cheatam at this time.
Count 3 – Due Process
Plaintiff takes issue with the handling of his grievances by Defendants
Gaetz, Mueller, Cowan and Randle. However, “a state’s inmate grievance procedures

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do not give rise to a liberty interest protected by the Due Process Clause.” Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995). The Constitution requires no procedure
at all, and the failure of state prison officials to follow their own procedures does not, of
itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992);
Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982).

As such, the alleged

mishandling of grievances “by persons who otherwise did not cause or participate in the
underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir.
2011). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George
v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996).
Even if Plaintiff’s allegations against Defendants Gaetz, Mueller, Cowan,
and Randle are true, they do not rise to the level of a constitutional violation. Plaintiff’s
allegation that Mueller tampered with Plaintiff’s grievance does not subject Mueller to
liability under § 1983. See Antonelli, 81 F.3d at 1430 (citing Azeez v. DeRobertis, 568
F. Supp. 8, 10 (N.D.Ill.1982)).
As none of these four Defendants participated in the underlying conduct
(excessive force) that prompted Plaintiff to file grievances, Plaintiff has not described
any actions that would implicate his Fourteenth Amendment rights.

Furthermore,

Plaintiff’s assertion that these four Defendants conspired to cover up the December 3,
2009, incident similarly does not support a due process claim. See Conyers v. Abitz,
416 F.3d 580, 586 (7th Cir. 2005) (plaintiff’s argument that conspiracy by prison officials
to deny administrative review of his grievances by dismissing them was frivolous where
plaintiff had access to the grievance procedure but he did not obtain the outcome he

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desired). Therefore, Plaintiff’s due process claim for denial / tampering with grievances
shall be dismissed without prejudice.
Pending Motions
On May 14, 2012, Plaintiff filed a 19-page motion requesting a TRO and
preliminary injunction (Doc. 15), to which he attached 39 pages of exhibits (Doc. 15-1).
Plaintiff requests that he be transferred to another correctional facility or, in the
alternative, that Defendants Baker and Cheatam be assigned to a different cell block. In
considering whether to grant injunctive relief, a district court is obligated to weigh the
relative strengths and weaknesses of a plaintiff’s claims in light of a five-part test that
has long been part of the Seventh Circuit’s jurisprudence. Specifically, a plaintiff must
establish: (1) that there is a reasonable or substantial likelihood that he would succeed
on the merits; (2) that there is no adequate remedy at law; (3) that absent an injunction,
he will suffer irreparable harm; (4) that the irreparable harm suffered by plaintiff in the
absence of the injunctive relief will outweigh the irreparable harm that defendants will
endure were the injunction granted; and (5) that the public interest would be served by
an injunction. Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking, 176 F.3d
1004, 1011 (7th Cir. 1999).
In his motion, Plaintiff claims that he has been assaulted numerous times
by Defendant Baker since filing this lawsuit. Furthermore, he has allegedly received
death threats from this Defendant and been subjected to harassment from other Menard
C/O’s.

The events described by Plaintiff in this motion occurred at various times,

ranging from incidents involving Defendant Baker in June and September 2009 (Doc.
15, p. 6), September 2010 (Doc. 15, p. 3), July and September 2011 (Doc. 15, pp. 8-9),

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to a verbal threat made in February 2012 (Doc. 15, pp. 1-2), well after this lawsuit was
filed. Additionally, Plaintiff includes several unrelated complaints related to hunger
strikes and conflicts with a cellmate, which allegedly took place in January and February
2012 (Doc. 15, pp. 10, 14), also post-dating the filing of the instant complaint. None of
these allegations were included in Plaintiff’s operative complaint (Doc. 1), thus they are
not properly before the Court. Because the allegations on which Plaintiff bases his
request for injunctive relief are distinct from the claims raised in his complaint, his
motion for TRO and preliminary injunction (Doc. 15) is DENIED without prejudice.
Plaintiff is ADVISED that if he wishes to have these new allegations
considered, they must first either be included in an amended complaint, or filed as a
new separate lawsuit. Clearly, the incidents that occurred after November 23, 2011 (the
date Plaintiff filed the instant action), must be brought in a separate suit. As to the other
claims, they may be properly brought in an amended complaint in this action ONLY if
they are asserted against one of the remaining Defendants herein (Baker and
Cheatham), or if they arise out of the same transaction or occurrence, or series of
transactions or occurrences, as the surviving claims herein, and share a common
question of law or fact with those surviving claims. See FED. R. CIV. P. 18 (a); 20(a)(2);
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (separate, unrelated claims belong
in different suits).
On July 5, 2012, Plaintiff filed a motion for status (Doc. 16), which is
GRANTED. The status of this case is reflected in the instant order.
Plaintiff’s motion for a hearing (Doc. 17) concerning his above motion for
TRO is DENIED without prejudice.

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On July 10, 2012, Plaintiff filed a motion for leave to file an addendum to
his original complaint, adding one “exhibit” to his complaint (Doc. 18). That exhibit is a
one-page letter containing the Administrative Review Board’s final denial of a grievance
over a July 20, 2011, disciplinary report. The incident, which was the subject of that
grievance, occurred much later than the incidents that are the subject of the instant
complaint. Thus, like the issues Plaintiff attempted to bring up in his motion for TRO,
this matter is not properly before the Court. Accordingly, Plaintiff’s motion for leave to
file an addendum (Doc. 18) is DENIED without prejudice. The proposed exhibit,
docketed at Doc. 18, page 3, shall be disregarded.
Plaintiff is ADVISED that any proposed amendments or supplements to
his complaint must be properly filed pursuant to Federal Rule of Civil Procedure 15(a) or
(d). In addition, 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. The Court will not accept piecemeal amendments to the
original complaint. An amended complaint supersedes and replaces the original
complaint. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th
Cir. 2004).
Disposition
IT IS HEREBY ORDERED that COUNT 3 fails to state a claim upon which
relief can be granted and thus is DISMISSED without prejudice.

DEFENDANTS

GAETZ, MUELLER, COWAN, and RANDLE are dismissed from this action without
prejudice. COUNTS 1 and 2 shall receive further consideration.

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The Clerk of Court shall prepare for Defendants BAKER and CHEATAM:
(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 require that Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
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.
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.

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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 Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate
Judge Williams 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.
If judgment is rendered against Plaintiff, and the judgment includes the
payment of costs under Section 1915, Plaintiff will be required to pay the full amount of
the costs, notwithstanding that his application to proceed in forma pauperis has been
granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28
U.S.C. § 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney were
deemed to have entered into a stipulation that the recovery, if any, secured in the action
shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid costs taxed
against plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1)
Finally, Plaintiff is ADVISED that he is under a continuing obligation to
keep the Clerk of 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

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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: 8/9/2012

s/ MICHAEL J. REAGAN_
Michael J. Reagan
United States District Judge

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