Rhine v. Cross et al

Filing 11

ORDER: Defendants W A Sherrod, James Cross, Christina McKinney, C/O Chambers, and Allison McCammack are DISMISSED from this action without prejudice. Count 5 is severed into a separate action, for which the Clerk shall open a new case. Count 6 is s evered into a separate action, for which the Clerk shall open a new case. Defendants in the instant action for Counts 1-4 are Defendants Lt. Kirby, C/O Robinson-Taylor, Rosalind Robinson, and Zelda Bell. In the new case concerning Count 5, the Defe ndant is Lt. Hutchcraft. In the new case concerning Count 6, the Defendant is C/O Guiterez. Plaintiff shall notify the Court by September 15, 2012, if he does not wish to proceed on either this case or the newly opened cases. At that time, the Court will order service of process on Defendants. (Action due by 9/14/2012). Signed by Judge Michael J. Reagan on 8/15/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TRACY RHINE,
Plaintiff,

vs.
JAMES CROSS, W A SHERROD,
CHRISTINA MCKINNEY, ZELDA BELL,
LT KIRBY, C/O ROBINSON-TAYLOR,
C/O GUITEREZ, C/O CHAMBERS,
ALLISON MCCAMMACK, ROSALIND
ROBINSON and LT HUTCHCRAFT,
Defendants.

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Case No. 3:12-cv-00211-MJR

MEMORANDUM AND ORDER
Reagan, District Judge:
Plaintiff has brought this pro se civil rights action pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against several
federal prison officials.

Plaintiff is a federal prisoner that was formerly incarcerated at

Greeneville Federal Prison Camp (“Greeneville FPC”). According to the complaint, Plaintiff
was temporarily transferred from Greeneville FPC to St. Clair County Jail, an Illinois county jail,
on June 17, 2010. However, during her time at St. Clair County Jail she remained technically a
federal prisoner in the custody of the federal government due to a contractual relationship with
St. Clair County.
Plaintiff claims that Defendants James Cross and W A Sherrod, both described as
Warden of Greenville Federal Correctional Institution (“Greeneville FCI”), violated her First,
Fifth, Sixth, and Eighth Amendment rights under the U.S. Constitution for their refusal to
provide the Plaintiff with medical care after harm was inflicted to her shoulder by staff members
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under their command, among several other alleged constitutional violations.

Specifically,

Plaintiff alleges that she repeatedly sent the Wardens grievances and other correspondence
informing them of constitutional violations at Greeneville FPC, and the Wardens disregarded the
information, thereby condoning the violations of staff members. Next, Plaintiff claims that
Defendant Christina McKinney, Greenville FPC Camp Administrator, and Defendant Rosalind
Robinson, Greenville FPC Camp Manager violated her First, Fifth, Sixth, and Eighth
Amendment rights. More specifically, Plaintiff alleges that McKinney and Robinson violated
her Fifth Amendment right to equal protection of the laws when on June 12, 2010, those
Defendants allegedly threatened Plaintiff and told her to “keep your mouth shut” regarding
Plaintiff’s complaints about the unequal treatment of heterosexual women at Greeneville FPC.
Next, Plaintiff claims that Defendant C/O Chambers violated her Eighth Amendment right to be
free from cruel and unusual punishments when he made sexually oppressive and demeaning
remarks to her on June 17, 2010. Next, Plaintiff claims that Defendants Lt. Kirby (correctional
officer), C/O Robinson-Taylor (correctional officer), Rosalind Robinson, and Zelda Bell
(Greeneville FPC Counselor) violated her Fifth and Eighth Amendment rights on June 17, 2010,
when they allegedly intentionally inflicted serious pain and injury to Plaintiff’s shoulder.
Specifically, the Defendants refused to respond to Plaintiff’s requests to cuff her in the front after
she repeatedly informed them that cuffing her in the back was causing serious pain and suffering
to a pre-existing shoulder injury. Plaintiff also alleges that Defendant Bell used excessive force
on the same day when he grabbed Plaintiff by the handcuffs and intentionally pulled her arms
behind her to inflict pain. Next, Plaintiff claims that on June 25, 2010, and thereafter, Defendant
Rosalind Robinson and Defendant Lt. Hutchcraft, Greenville FCI Special Investigative
Supervisor (“SIS”), violated her First Amendment rights to receive personal mail and to have

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access the courts when they did not supply Plaintiff with her personal mail and papers regarding
a legal claim in accordance with her requests. Plaintiff further claims that both Robinson and
Hutchcraft were deliberately indifferent regarding Plaintiff’s June 25 and June 28 complaints
about conditions of confinement, access to medical care, and threats of bodily harm from staff at
St. Clair County Jail. Plaintiff also alleges that Defendant Hutchcraft violated her due process
when disciplinary actions were taken against her. Plaintiff also claims that the disciplinary
actions were taken by Defendant Hutchcraft in retaliation for Plaintiff complaining (filing a
grievance) about Defendant Chambers’ derogatory remarks toward her. Next, Plaintiff claims
that Defendant Allison McCammack, Greenville FPC Drug Treatment Specialist (“DTS”),
violated her First and Fifth Amendment rights taking Plaintiff’s autobiography and analytical
philosophical papers. Next, Plaintiff claims that Defendant C/O Guiterez (Correctional Officer)
violated her First and Fifth Amendment rights by tampering with Plaintiff’s mail and property.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold
review of the complaint. Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff
has articulated a colorable federal cause of action against Defendants Lt. Kirby, C/O RobinsonTaylor, Rosalind Robinson, and Zelda Bell for conditions of confinement (Count 1) for the
allegations concerning the June 17, 2010, incident concerning infliction of pain to Plaintiff’s
shoulder. Next, Plaintiff states a colorable excessive force claim (Count 2) against Defendant
Zelda Bell for intentionally causing pain to Plaintiff’s shoulder on June 17, 2010. Next, Plaintiff
has stated a claim for deliberate indifference to a serious medical need against Defendant
Rosalind Robinson (Count 3) for the allegations concerning deliberate indifference to Plaintiff’s
shoulder injury on June 25 through August 18, 2010. Next, the Defendant states a claim against
Defendants Rosalind Robinson for failure to protect (Count 4) in regards to her allegations that

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Robinson was deliberately indifferent to specific threats to Plaintiff’s safety at Madison County
Jail. Next, the Plaintiff has stated a claim against Defendant Lt. Hutchcraft for First Amendment
retaliation (Count 5). Finally, the Plaintiff has stated a due process claim (Count 6) against
Defendant C/O Guiterez for missing property that Guiterez allegedly failed to return to her.
However, the claims against Defendant Wardens Sherrod and Cross are dismissed
on initial review because the doctrine of respondeat superior is not applicable to § 1983 actions.
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). Plaintiff states
in her complaint that both Defendants “were personally involved and personal knowledge of the
violations of Rhine’s rights.” Doc. 1 at 4. But that is merely a legal conclusion not supported by
the factual allegations of the complaint. Plaintiff only alleges facts demonstrating that she sent
the Defendant Wardens grievances and correspondence, and the Wardens did not respond.
Plaintiff’s logical leaps that the Wardens must have been aware of and must have condoned
constitutional violations, without demonstrating actual knowledge of violations, are legally
insufficient to demonstrate personal involvement. See Sanville, 266 F.3d at 740; Owens v.
Hinsley, 635 F.3d 950, 953-54 (7th Cir. 2011) (“the alleged mishandling of [a prisoner]'s
grievances by persons who otherwise did not cause or participate in the underlying conduct
states no claim” (citations omitted)).
DISMISSED as defendants.

Accordingly, Defendants Sherrod and Cross are

Likewise, Plaintiff’s miscellaneous allegations throughout the

complaint regarding various correspondence and grievances sent to other Defendants also fail to
state a claim upon which relief can be granted. See id. In addition, Defendant McCammack is
DISMISSED as a Defendant because there is no allegation that McCammack was personally
involved in any constitutional violation. Plaintiff only alleges that the Bureau of Prisons unit that

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McCammack works for possessed some personal property of the Plaintiff, and Plaintiff wrote
letters and told others to contact McCammack.
Even liberally construing the pro se Plaintiff’s complaint,1 many of the allegations
lack the sufficient detail required to put the stated Defendants on fair notice of a claim.
Plaintiff’s equal protection violation allegations fail to state a claim upon which relief can be
granted. In her complaint, Plaintiff only briefly refers to discrimination against heterosexuals at
Greeneville FPC, a class that apparently includes herself, in very vague terms. See Doc. 1 at 6.
Plaintiff describes an isolated incident June 12, 2010, where she spoke out against desperate
treatment of heterosexuals and was thereafter called to administrative building where she was
allegedly threatened by Defendants McKinney and Robinson. See id. However, Plaintiff’s
allegations do not contain adequate detail to explain how inmates in her class are treated
differently from members of another class, who are similarly situated, and she does not allege
that the unequal treatment bears no rational relation to a legitimate penal interest. See, e.g., May
v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000) (“In the prison context, the Equal Protection
Clause … requires inmates to be treated equally, unless unequal treatment bears a rational
relation to a legitimate penal interest.” (citations omitted)). These brief and vague statements
also lack sufficient detail to determine whether prison officials had a discriminatory purpose for
their actions. See Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982) (“A plaintiff must
demonstrate intentional or purposeful discrimination to show an equal protection
violation.” (citation and quotations omitted)); see also, e.g., Gamza v. Aguirre, 619 F.2d 449,
453 (5th Cir. 1980) (“Unlike systematically discriminatory laws, isolated events that
adversely affect individuals are not presumed to be a violation of the equal protection

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See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

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clause.” (citation omitted)).

Accordingly, Defendant McKinney is DISMISSED as a

defendant.
Plaintiff’s allegations against Defendant Chambers also fail to state a claim upon
which relief can be granted. Plaintiff recalls an incident on June 17, 2010, where Defendant
Chambers called the Plaintiff a “drama queen” and a “drama king” in the presence of several
inmates and staff members. Plaintiff claims Chambers’ “sexually discriminating accusations”
stigmatized her “honor, integrity, and reputation.” Doc. 1 at 7. However, Chambers’ apparently
offensive words to do not rise to level of a constitutional violation. See, e.g., DeWalt v. Carter,
224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not
constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest
or deny a prisoner equal protection of the laws.”); see also, e.g., Patton v. Przybylski, 822
F.2d 697, 700 (7th Cir. 1987) (“Defamation is not a deprivation of liberty within the
meaning of the due process clause.” (citation omitted)). Accordingly, Defendant Chambers is
DISMISSED as a Defendant.
Plaintiff’s allegations concerning denial of access to the courts and interruptions
in the delivery of personal mail do not state claims upon which relief can be granted. The
allegations in the complaint concerning denial of access to the courts only mention that Plaintiff
needed legal papers to pursue an unidentified legal claim. See Doc. 1 at 9. Plaintiff’s allegations
fail because she has not made any showing of prejudice to the unidentified legal claim, as
required for a denial of access to the courts claim. See Ortiz v. Downey, 561 F.3d 664, 671 (7th
Cir. 2009); Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir. 1992). Likewise, Plaintiff’s allegations
concerning temporary interruptions in receiving personal mail do not implicate her First
Amendment rights. See Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987) (“merely

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alleging an isolated delay or some other relatively short-term, non content-based disruption
in the delivery of inmate reading materials will not support … a cause of action grounded
upon the First Amendment”).
Plaintiff’s allegation regarding Defendant Hutchcraft’s failure to provide medical
attention to her injured shoulder on June 28, 2010, are insufficient to state a claim. Unlike
Defendant Robinson, Hutchcraft did not have prior knowledge of a serious condition resulting
from events that transpired on June 17, 2010, because he was not alleged to have been involved
on that day. Plaintiff’s allegations do not indicate that Hutchcraft would have had knowledge of
a serious medical need. See Foelker v. Outagamie County, 394 F.3d 510, 512-13 (7th Cir.
2005) (“A „serious‟ medical need is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize
the necessity for a doctor's attention.” (citation omitted)).

Rather, Plaintiff only states,

without sufficient detail, that she told Hutchcraft that she needed medical attention.
Plaintiff’s allegations against Defendants Robinson and Hutchcraft regarding
inhumane cell conditions at St. Clair County Jail fail to state a claim upon which relief can be
granted. Plaintiff complains that after she was transferred to St. Clair County Jail June 17, 2010,
she suffered in inhumane conditions of confinement. Specifically, Plaintiff complained that
toilet in her cell did not properly function, she was only given one roll of toilet paper per week,
and the food trays and showers were unsanitary. See Doc. 1 at 9. However, Plaintiff fails to
allege that she suffered physical harm as a result of the conditions. See Harris v. Fleming, 839
F.2d 1232, 1235-36 (7th Cir. 1988) (“Inmates cannot expect the amenities, conveniences and
services of a good hotel …”).

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The allegations in the complaint regarding a failure to protect against Defendant
Hutchcraft are insufficient to state a claim. Without further detail, Plaintiff states only that
Defendant Hutchcraft “failed to protect Rhine against a substantial risk” on June 28, 2010. See
Doc. 1 at 10. However, this brief allegation is unspecific as to whether the threat described by
Plaintiff was an impending and substantial threat to her safety. See Pope v. Shafer, 86 F.3d 90,
92 (7th Cir. 1996) (“In failure to protect cases, a prisoner normally proves actual
knowledge of impending harm by showing that he complained to prison officials about a
specific threat to his safety.” (citation and quotation marks omitted)).
Plaintiff’s allegations regarding a false disciplinary report and punishment do not
state a claim upon which relief can be granted.

A prisoner’s arbitrary confinement in

disciplinary segregation, administrative segregation, or protective custody does not implicate any
liberty interest under either the Due Process Clause so long as the confinement itself does not
constitute an “atypical, significant deprivation.” See Sandin v. Conner, 515 U.S. 472, 484
(1995) (rejecting an argument that “any state action taken for a punitive reason encroaches
upon a liberty interest under the Due Process Clause”); Wagner v. Hanks, 128 F.3d 1173,
1175 (7th Cir. 1997). A particular confinement is “atypical [and] significant” only if the
conditions under which the inmate is confined are substantially more restrictive than
administrative segregation at the most secure prison in that state. See Wagner, 128 F.3d at 1175.
Here, Plaintiff only alleges that she was temporarily transferred to Madison County Jail, her
security level was enhanced, and a future transfer to Texas was jeopardized as a result of the
disciplinary report. No liberty interest can be claimed to have been violated.
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit
emphasized that unrelated claims against different defendants belong in separate lawsuits, “not

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only to prevent the sort of morass” produced by multi-claim, multi-defendant suits “but also to
ensure that prisoners pay the required filing fees” under the Prison Litigation Reform Act.
George, 507 F.3d at 607, citing 28 U.S.C. § 1915(b), (g). Plaintiff’s complaint contains three
sets of unrelated claims against different defendants: 1) Counts 1-4 against Defendants Lt.
Kirby, C/O Robinson-Taylor, Rosalind Robinson, and Zelda Bell (Eighth Amendment
violations), 2) Count 5 against Defendant Lt. Hutchcraft (First Amendment retaliation), and 3)
Count 6 against Defendant C/O Guiterez (Due Process).
Consistent with the George decision and Federal Rule of Civil Procedure 21, the
Court SEVERS Count 5 of Plaintiff’s complaint and DIRECTS the Clerk to open a new case
with a newly-assigned case number for that case. Further, the Court SEVERS Count 6 of
Plaintiff’s complaint and DIRECTS the Clerk to open a new case with a newly-assigned case
number for that case. The Court further directs the Clerk to add to the docket of the newlyopened case a copy of Plaintiff’s complaint, the IFP application from this case, and a copy of this
order. If for any reason, Plaintiff does not wish to proceed either with this case or with the
newly-opened cases, she must notify the Court within 30 days. Unless Plaintiff notifies the
Court that he does not wish to pursue one or all of these actions, she will be responsible for a
separate filing fee in each case.
Disposition
Defendants W A Sherrod, James Cross, Christina McKinney, C/O Chambers, and
Allison McCammack are DISMISSED from this action without prejudice. Count 5 is severed
into a separate action, for which the Clerk shall open a new case. Count 6 is severed into a
separate action, for which the Clerk shall open a new case. Defendants in the instant action for
Counts 1-4 are Defendants Lt. Kirby, C/O Robinson-Taylor, Rosalind Robinson, and Zelda Bell.

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In the new case concerning Count 5, the Defendant is Lt. Hutchcraft. In the new case concerning
Count 6, the Defendant is C/O Guiterez. Plaintiff shall notify the Court by September 15, 2012,
if he does not wish to proceed on either this case or the newly opened cases. At that time, the
Court will order service of process on Defendants.
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 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: August 15, 2012.

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

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