Merritte v. Kessell et al

Filing 24

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, Denying 20 MOTION for Hearing filed by Calvin Merritte. The Court FINDS that plaintiff has sufficiently alleged grounds for a preliminary injunction and a hearing will be scheduled as soon as practicable. Plaintiff's complaint has passed the Court's threshold review and the Clerk of Court SHALL PREPARE for Defendants C/O Kessel, Mark Hodge, C/O Gangloff, C/O J. Freeman, C/O Breeden and C/O Tate: (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 J. Phil Gilbert on 9/13/2012. (tjk)

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

)
CALVIN MERRITTE,
)
R-53322,
)
)
Plaintiff,
)
)
v.
)
)
C/O KESSEL, C/O GANGLOFF, MARC )
HODGE, C/O J. FREEMAN, C/O
)
TATE, C/O BREENDEN,
)
)
Defendants.
)

12-CV-263-JPG

MEMORANDUM AND ORDER

GILBERT, District Judge:
This matter is before the Court for threshold review of the plaintiff’s second amended
complaint (Doc.17) which seeks recovery for alleged civil rights violations under 42 U.S.C. §
1983. Plaintiff, who is incarcerated at Lawrence Correctional Center, Sumner, Illinois, asserts
that because that he and his former cellmate, Regis Higgins1 filed several grievances against the
defendant correctional officers, he has been subject to retaliation and he fears for his safety. He
further asserts that Warden Hodge failed to protect the plaintiff when he refused to transfer
plaintiff to another institution and otherwise has subjected plaintiff to a risk of harm from other
inmates.
Named as defendants are C/O Kessel2, Mark Hodge (Warden, Lawrence Correctional
Center), C/O Gangloff, C/O J. Freeman, C/O Breeden and C/O Tate.
1

Regis Higgins’ claims were severed from the claims in this case (See, Doc. 16) and are now part of a separate
cause of action, See Higgins v. Kessel, et. al, 12-632-JPG.
2
The Court notes that defendant Kessel is identified on the docket as “C/O Kessell” but plaintiff identifies him
throughout as “Kessel.”

Plaintiff also has filed several motions for injunctive relief: Motion for Preliminary
Injunction and Temporary Restraining Order (Doc. 3); Motion for Preliminary Injunction and
Temporary Restraining Order (Doc. 8); Amended Motion for Preliminary Injunction and for
Restraining Order (Doc. 15); and a companion Motion for Hearing or for Pre-Trial Conference
(Doc. 20)
A.

THRESHOLD REVIEW

“A provision added to the Judicial Code by the Prison Litigation Reform Act of 1996
requires the district judge to screen prisoner complaints at the earliest opportunity and dismiss
the complaint, in whole or part, if. . . it ‘fails to state a claim upon which relief can be granted.’”
Sanders v. Sheahan, 198 F.3d 626 (7th Cir.1999) (quoting 28 U.S.C. § 1915A(b)(1)). “Factual
allegations [in a complaint] must be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, there must be “enough facts to
state a claim to relief that is plausible on its face.” Id.
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.” Twombly, 550 U.S. at 570. 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). The Seventh Circuit has directed that 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).
B.

DISCUSSION

Section 1983 authorizes a court to grant relief when a party’s federally protected rights
have been violated by a state or local official or other person acting under color of state law. 42
U.S.C. § 1983. Under the plain language of the statute, § 1983 only applies against those acting
under the color of law. In other words, the defendant must be a state actor. See Wilson v.
McRae's, Inc., 413 F.3d 692, 693 (7th Cir.2005).
The Seventh Circuit has held that “[A]n act in retaliation for the exercise of a
constitutionally protected right is actionable under Section 1983 even if the act, when taken for
different reasons, would have been proper.” Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir.
1987) (quoted in Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012)). And, a “prisoner has a
First Amendment right to make grievances about conditions of confinement.” Watkins v. Kasper,
599 F.3d 791, 798 (7th Cir. 2010).
It is helpful for the Court to break down the allegations of the complaint into separate
claims. Plaintiff has alleged that defendants Kessel, Gangloff, Tate, J. Freeman and Breeden
retaliated against him and threatened him for exercising his First Amendment rights to file
grievances against them (Count 1). Plaintiff also alleges that defendant C/O Tate identified him
to defendant C/O Breeden as a “stooly,” thereby subjecting him to risk of serious harm from
other inmates. The Court construes this as a failure to protect claim (Count 2) against defendants
C/O Tate and C/O Breeden. Finally, plaintiff alleges that defendant Mark Hodge has refused to
3

transfer plaintiff and has denied his requests for protective measures which were sought because
of plaintiff’s claimed fear of imminent harm (Count 3).
Upon review of the record, the Court FINDS that plaintiff’s complaint is sufficient to
withstand threshold review for the claims outlined above. To be held individually liable under
§1983, plaintiff must allege that each defendant “caused or participated in an alleged
constitutional deprivation. . .” Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012). Plaintiff
has alleged actions by each named correctional officer defendant which would rise to the level of
individual liability. With respect to Warden Hodge, plaintiff seeks injunctive relief against him.
Warden Hodge would be "responsible for ensuring that any injunctive relief is carried out,"
therefore, the §1983 claim against Hodge also survives threshold review. Gonzalez v.
Feinerman, 663 F.3d 311, 315 (7th Cir. 2011).
C.

PRELIMINARY INJUNCTION MOTIONS

Plaintiff has filed several motions for preliminary injunction (Docs. 3, 8, 15) and a
motion for hearing (Doc. 20). He asserts that he is entitled to injunctive relief because he has a
likelihood of success on the merits, and is at risk for serious injury. He asserts that he has been
subject to threats from other inmates as a result of filing grievances against defendant C/O
Kessel and that he fears for his safety. He claims that he cannot otherwise legally address his
grievances, and the threat of injury to the plaintiff outweighs any harm to the defendants if the
injunction were to be granted.
In a preliminary injunction proceeding, a plaintiff has the threshold burden to show some
likelihood of success on the merits and that irreparable harm will result if the requested relief is
denied. In re Forty–Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Cir.1997). If the plaintiff
4

succeeds in his attempt for a preliminary injunction, the imminent danger question will be
temporarily resolved pending trial. However, where the plaintiff fails to show some likelihood of
success on the merits, it may call into question whether the plaintiff was actually in “imminent
danger of serious physical harm” to begin with.
In order to obtain emergency injunctive relief, plaintiff must support his motion with
evidence to show that (1) he has no adequate remedy at law and will suffer irreparable harm if
the relief is not granted; (2) the irreparable harm he would suffer outweighs the irreparable harm
defendants would suffer from an injunction; (3) he has some likelihood of success on the merits
of his case; and (4) the injunction would not frustrate the public interest. Palmer v. City of
Chicago, 755 F.2d 560, 576 (7th Cir.1985). The plaintiff must satisfy each of these elements to
prevail. The purpose of a preliminary injunction is to preserve the status quo pending a final
hearing on the merits of the case. American Hospital Ass'n v. Harris, 625 F.2d 1328, 1330 (7th
Cir.1980) “A preliminary injunction is an extraordinary remedy that is only granted where there
is a clear showing of need.” Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.1999). And, a specific
section of the PLRA entitled “Requirements for Relief,” provides:
Preliminary injunctive relief must be narrowly drawn, extend no further
than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.
The court shall give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the
preliminary relief....
18 U.S.C. § 3626(a)(2).
The Court FINDS that plaintiff has sufficiently alleged grounds for a preliminary
injunction and a hearing will be scheduled as soon as practicable.

5

D.

CONCLUSION

Plaintiff’s complaint, therefore, has passed the Court’s threshold review and the Clerk of
Court SHALL PREPARE for Defendants C/O Kessel, Mark Hodge, C/O Gangloff, C/O J.
Freeman, C/O Breeden and C/O Tate: (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
6

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 Philip M. Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Philip M.
Frazier 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).
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), plaintiff’s motions for
injunctive relief (Docs. 3, 8 and 15) are hereby REFERRED to United States Magistrate Judge
Frazier for an evidentiary hearing and issuance of a report and recommendation. The period for
filing any objections to Judge Frazier’s report and recommendation shall not exceed 7 days from
the date of the report. Consistent with the Seventh Circuit’s directive, Judge Frazier shall set an
evidentiary hearing as soon as practicable, in light of the time necessary to effect service of
summons and for receipt of the defendants’ responses to the motion for injunctive relief. Any
motions filed after the date of this Order that relate to the request for injunctive relief or seek
leave to amend the complaint are also hereby REFERRED to Judge Frazier.
The plaintiff’s motion for hearing is (Doc. 20) DENIED as moot.
7

IT IS SO ORDERED.
DATED: September 13, 2012

s/J. Phil Gilbert
United States District Judge

8