Washington v. Hodges et al

Filing 14

ORDER : COUNTS 2A, 3B, 11B, 12B, and 15 are DISMISSED without prejudice for failure to state a claim upon which relief may be granted. COUNTS 2B, 4, 5, 6, 7B, 10B, 13C, and 14B are DISMISSED with prejudice for failure to state a claim upon which re lief may be granted. Defendants DOTHAGER, SALEM, LAPPIN, MONTGOMERY, HARVEY, LAIRD, and LIRIOS are DISMISSED from this action with prejudice.IT IS HEREBY ORDERED that Plaintiff's claims in COUNTS 8A, 8B, 8C, 8D, 11A, and 12A are SEVERED into a new case. Likewise, Plaintiff's claims in COUNTS 9, 10A, 13A, 13B, and 14A are SEVERED into a second, separate new case. See attached order for details. (Action due by 7/29/2013). Signed by Judge G. Patrick Murphy on 6/24/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BURL WASHINGTON, # 34193-044,
Plaintiff,
vs.
MARGARET HODGES, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 12-cv-854-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court for a merits review of Plaintiff’s complaint (Doc. 1) for
alleged violations of his constitutional rights by persons acting under the color of federal
authority, pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

The

complaint was filed on July 30, 2012, and brings claims arising from Plaintiff’s incarceration at
the Federal Correctional Institution at Greenville, Illinois (“Greenville”). At the time he filed
this complaint, Plaintiff was confined at USP-McCreary in Pine Knot, Kentucky (Doc. 1, p. 40).
He is still incarcerated at USP-McCreary, serving a 360-month sentence for drug distribution
resulting in death.
This Court denied Plaintiff leave to proceed in forma pauperis (“IFP”) and dismissed the
case on September 11, 2012 (Doc. 7), because Plaintiff had already incurred three “strikes” and
was not in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Three of
Plaintiff’s earlier-filed cases were dismissed as frivolous or without merit. Plaintiff paid the
filing fee for this action in full and the case was reopened on May 15, 2013.

Page 1 of 18

The Complaint
Plaintiff’s 40-page complaint is organized into 15 claims (some with multiple parts)
against 24 named Defendants and three unknown (John Doe) correctional officers (Doc. 1, pp. 110). He also includes 237 pages of exhibits. A majority of the claims include allegations of
retaliation. Because of the large number of claims and the length of the pleading, the Court shall
adopt Plaintiff’s numerical designations of his claims for clarity. Following is a summary of
Plaintiff’s allegations.
Counts 1, 2, and 3
Plaintiff begins with several claims arising from his transportation to an outside eye clinic
for a medical examination on December 8, 2011. Plaintiff suffers from glaucoma and arthritis.
In his first two claims, Plaintiff alleges that Defendant Hodges intentionally exposed him to
freezing temperatures in the transport van in retaliation for some prior incident in June 2010.1
This caused him extreme pain because cold temperatures aggravate his arthritis (Doc. 1, p. 11;
Doc. 1-1, pp. 1-4). After they arrived at the clinic, Defendant Hodges kicked Plaintiff in the leg
while he was seated in a wheelchair (Claim 3, Doc. 1 p. 12).
Counts 4 and 5
Defendant Hodges and Defendant Dothager (whom Plaintiff refers to as “Officer B”)
accompanied Plaintiff into the eye clinic examination room, and made threatening comments to
him while waiting for the medical staff (Claim 4, Doc. 1, p. 12-13). Plaintiff finally told the
officers he did not feel safe with them, he “wish[ed] to end this visit and return to the
institution,” and asked them to open the door so he could inform the medical staff (Doc. 1, p.

Although Plaintiff refers to some “staff misconduct” which took place in June 2010 on an “escorted
med trip” (Doc. 1, p. 11; Doc. 1-1, pp. 1, 8), he never states any facts about what occurred, nor does he
indicate that he made any complaints about the June 2010 incident until December 8, 2011, when he
returned from the medical trip with Defendant Hodges.
1

Page 2 of 18

13). Eventually, the officers took Plaintiff back to Greenville without speaking to the medical
staff or having the examination. Upon their return, Defendant Hodges “misrepresented” the
events at the clinic by reporting to Defendant Salem that Plaintiff’s conduct had been disorderly
(Claim 5, Doc. 1, p. 14).

Plaintiff reported that he had been kicked and threatened with

administrative detention. Defendant Salem put Plaintiff in administrative detention.
Count 6
Later on the evening of December 8, Plaintiff received an incident report (No. 2242992)
filed by Defendant Hodges, that included “false” statements about the clinic incident (Doc. 1, pp.
15-16). On December 13, 2011, Plaintiff was found guilty and punished with 60 days loss of
commissary, visiting, and phone privileges (Doc. 1, p. 15). Plaintiff also states as part of Claim
5 that he was given five days disciplinary segregation, but does not include this among the listed
punishments in Claim 6. Id.
Count 7
Next, Plaintiff alleges that he was placed in the Special Housing Unit (“SHU”) on
December 20, 2011, by Defendants Cooper and Hutchcraft, in retaliation for exercising his rights
to pursue a grievance over the disciplinary action described above (Doc. 1, pp. 16-20).
Specifically, Plaintiff had requested copies of certain documents to use at his disciplinary
hearing. He did not receive the material in time to use it at the hearing, and explained to
Defendant Cooper that he would now use it to pursue his grievance (Doc. 1, p. 18). Defendant
Cooper took the documents away and told Plaintiff he was placing him in the SHU for “a long
time.” Id. Defendant Hutchcraft later told Plaintiff that he had been placed in the SHU for
protection, but this claim was contradicted by Defendant Cross (the warden) (Doc. 1, p. 19).

Page 3 of 18

Count 8
Plaintiff’s next group of claims relates to his outpatient surgery for glaucoma on March
15, 2012, and his subsequent hospitalization at Barnes Hospital (“Barnes”) from March 16 to
March 22, 2012, for complications that arose after the surgery. While Plaintiff was at Barnes, he
was under guard by several correctional officers around the clock. Some of these officers told
him that they had been advised Plaintiff was a “problem inmate” because he had filed past
complaints over staff misconduct (Doc. 1, p. 21).

In retaliation for these past grievances,

Plaintiff’s attending officers denied him access to the bathroom on March 16, 2012, and then
refused to allow him a bath or clean linen after he urinated on himself (Doc. 1, p. 21). Several
other instances of retaliation followed. On March 19, 2012, Defendants Goldsborough and
Hoffimeir confiscated two papers written by Plaintiff which he intended to mail to an
acquaintance, along with a stamped envelope and a pen (Doc. 1, pp. 22-23). This writing
became the basis for an allegedly false disciplinary report for inappropriate communication
(Plaintiff showed the document to his female doctor). Defendant Jones confiscated all Plaintiff’s
writing material (Doc. 1, pp. 23-24).

Defendants Goldsborough, Hoffimeir, and Fester

intentionally “lost” Plaintiff’s plastic eye patch that was prescribed for him to prevent injury to
his eye after surgery (Doc. 1, pp. 23, 26). Defendants Jones and Fester, in disregard of the
specific instructions by medical staff, intentionally turned the air conditioner in Plaintiff’s
hospital room to a very cold setting, to aggravate Plaintiff’s arthritis pain (Doc. 1, p. 24).
Defendant Fester struck Plaintiff on the back and the head in order to prevent Plaintiff from
asking his doctor about the writing which had triggered the incident report for a “sexual proposal
or threat” toward her (Doc. 1, p. 25).

Page 4 of 18

Count 9
Plaintiff was discharged from Barnes Hospital on March 22, 2012, and returned to
Greenville. Beacause Defendant Fester “lost” Plaintiff’s prescribed eye patch, he was without
this device for approximately five days and nights until it was replaced on March 27, 2012 (Doc.
1, p. 26). Without the patch to protect his eye, the stitches broke, causing bleeding, swelling,
severe pain, infection and loss of vision. He claims that Defendants Kruse (Greenville Clinical
Director) and Pollman (Health Services Administrator) delayed replacing his eye patch in
retaliation for the numerous grievances Plaintiff had filed against Greenville staff.
Plaintiff filed a grievance against Defendants Goldsborough, Hoffimeir, Jones, and Fester
regarding the incidents described in Count 8, and informed Defendant Baugh (a captain) that
those officers “robbed” him of the prescribed eye patch. Plaintiff was scheduled for a follow-up
appointment with his outside glaucoma doctor on April 11, 2012, but he did not go because he
refused to be in the presence of Defendant Fester (Doc. 1, p. 26). Similarly, he “was denied” his
April 20 glaucoma appointment “because Captain Baugh and Warden Cross used Frank Fester as
a barrier between the inmate and his glaucoma care provider,” in retaliation for Plaintiff’s
grievances (Doc. 1, p. 27).
Count 10
Plaintiff claims that Defendants Montgomery, Gillian, Pollman, Kruse, Cross, and
Harvey were all deliberately indifferent to his need for pain relief for his osteoarthritis and
glaucoma. Defendants Gillian (Greenville physician’s assistant), Kruse (Greenville doctor), and
Pollman (Greenville Health Services Administrator) refused to provide pain medication as
prescribed by Plaintiff’s glaucoma specialist, because prison policy prohibited the use of
narcotics (Doc. 1, pp. 27-30). Their alternative medications were ineffective. Plaintiff notes that

Page 5 of 18

as of April 30, 2012, he was transferred from Greenville so he was no longer under the care of
these Defendants (Doc. 1, p. 28).
Count 11
On March 22, 2012, when Plaintiff was still in Barnes Hospital, he had a conversation
with his doctor regarding whether his vision problems prevented him from writing. He said,
“No, I wrote big” and let her examine a letter he had composed to a friend (Doc. 1, pp. 31-32).
This was the confiscated document also mentioned in Count 8. This letter contained language
that Defendant Goldsborough deemed suggestive (see Doc. 1, p. 22), and he wrote an incident
report on Plaintiff falsely stating that Plaintiff gave his doctor the letter and that the statements it
contained were directed at her. Plaintiff vehemently maintains that the letter was not written to
the doctor, but to his friend, and he showed it to the doctor only for medical purposes in response
to her question about his eyesight. He claims that Defendant Goldsborough wrote the false
report in retaliation for Plaintiff’s prior grievances against Greenville officers.
Count 12
Based on Defendant Goldsborough’s incident report in Count 11, Defendant Auterson
(hearing officer) found Plaintiff guilty of the charge of “code 399 (unspecified)” and stated that
he violated code 299 (Doc. 1, p. 32). However, the incident report had charged him with “206
(sexual proposal or threat).” Plaintiff claims that he was not given 24-hour notice that he faced
this “unspecified” charge, and that it was not supported by any evidence. Defendant Auterson
punished Plaintiff, in retaliation for his multiple grievances, with 60 days loss of phone and
commissary, and the revocation of 14 days of good conduct credit (Doc. 1, p. 33).

Page 6 of 18

Count 13
Plaintiff was transferred on April 30, 2012, to a different prison, where he is in a more
restrictive living environment with fewer privileges. According to Plaintiff, the transfer was
engineered by Defendants Cross, Lyons, and Robinson, in retaliation for his complaint against
Defendant Cross for intentionally delaying Plaintiff’s April 20, 2012, medical appointment.
Further, Defendants Pollman, Kruse, and Cross, knowing that Plaintiff needed a follow-up
appointment within one week of April 27, 2012, intentionally failed to provide him with his
glaucoma medication before the transfer. Defendant Cross ordered the transfer to purposely
deny Plaintiff this follow-up appointment.
Count 14
Defendants Tonaselke, Spence, and an unknown female officer packed some of
Plaintiff’s personal property before he was transferred on April 30, 2012. After the transfer,
Plaintiff discovered that many of his items were missing.

Plaintiff had previously filed

grievances against his unit team over the negligent loss of property when he was moved to the
SHU in December 2011, and had complained to Defendants Robinson and Lirios about those
problems. He claims that Defendants Tonaselke, Spence, the unknown officer, and Cross,
intentionally held back his personal property in retaliation for his multiple grievances.
Count 15
Plaintiff claims finally that “good cause exist[s] for any procedural default” (Doc. 1, p.
37. In this section, he asserts that officials at USP-McCreary, in retaliation for grievances
Plaintiff filed while at Greenville, have hindered his ability to pursue his grievances and exhaust
his administrative remedies. His unit team has refused to make copies or provide him with
grievance and appeal forms (Doc. 1, p. 38). He makes other complaints about McCreary Warden

Page 7 of 18

Ives and Regional Director Kim White, including their failure to respond to his grievances. He
“fears” another retaliatory transfer and improper medical care and assaults by McCreary staff,
and asks this Court to intervene and move him to the federal medical facility at
Springfield/Butner (Doc. 1, pp. 38-39).
In addition to this injunctive relief, Plaintiff seeks money damages for all the alleged
violations.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
While this Order tracks Plaintiff’s numerical designations of his claims (Counts 1-15),
some counts must be further broken down into sub-parts. Accepting Plaintiff’s allegations as
true, the Court finds that Plaintiff has articulated the following colorable federal claims which
shall receive further review:
Count 1: Against Defendant Hodges for deliberate indifference to Plaintiff’s medical
condition (intentionally exposing him to extreme cold for over an hour in the van on December
8, 2011);
Count 3A: Against Defendant Hodges for assault/excessive force (kicking Plaintiff in
the leg);
Count 7A: Against Defendants Cooper and Hutchcraft, for placing Plaintiff in the SHU
in retaliation for his pursuit of a grievance and documentary evidence regarding the disciplinary
charge of December 8, 2011;
Count 8A:

Against Defendants Goldsborough, Hoffimeir, Fester, and Jones for

Page 8 of 18

retaliation (events of March 16-22, 2012);
Count 8B: Against Defendants Goldsborough, Hoffimeir, and Jones for interfering with
Plaintiff’s First Amendment right to correspond with friends and family (confiscation of written
material, paper, pens, envelopes);
Count 8C:

Against Defendants Goldsborough, Hoffimeir, Jones, and Fester for

deliberate indifference to Plaintiff’s medical condition (intentionally confiscating his eye patch –
Goldsborough, Hoffimeir, and Fester); (turning air conditioner down against medical orders –
Jones and Fester);
Count 8D: Against Defendant Fester for excessive force (striking Plaintiff on the back
and head);
Count 9: Against Defendants Baugh, Cross, Kruse, and Pollman for retaliation and
deliberate indifference to Plaintiff’s medical needs for a replacement eye patch and post-surgical
medical appointments;
Count 10A: Against Defendants Gillian, Pollman, and Kruse for deliberate indifference
to medical needs (failure to provide prescribed pain medication or adequate replacement during
January – April 2012);
Count 11A: Against Defendant Goldsborough for retaliation (filing a false disciplinary
charge over the document Plaintiff showed his doctor);
Count 12A: Against Defendant Auterson for retaliation (finding Plaintiff guilty of a
false disciplinary charge over the document Plaintiff showed his doctor);
Count 13A: Against Defendants Cross, Lyons and Robinson for the retaliatory transfer
of Plaintiff;
Count 13B: Against Defendants Pollman, Kruse, and Cross for deliberate indifference to

Page 9 of 18

Plaintiff’s serious medical condition (denial of glaucoma medications at the time of his transfer);
Count 14A: Against Defendants Tonaselke, Spence, Cross, and a Jane Doe Female
Officer, for withholding Plaintiff’s property in retaliation for his past grievances.
Severance of Claims
While the above claims, at this pleading stage, appear to merit further review, the Court
finds that some of them must be severed into separate actions. 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 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 groups of unrelated claims against different

Defendants. Counts 1, 3A, and 7A all involve the events of December 8, 2011, and alleged
retaliation for Plaintiff’s grievance over those events. Counts 8A-D and Counts 11A and 12A all
arise from Plaintiff’s hospitalization in March 2012. Further, Defendant Goldsborough is named
in both Counts 8 and 11, so it is appropriate to keep them in the same action. See FED. R. CIV. P.
18(a). Finally, Counts 9, 10A, 13A, 13B, and 14A arose after Plaintiff’s hospitalization ended,
and involve common Defendants. The Court is cognizant that some of the later claims include
allegations of retaliation for Plaintiff’s actions that are the subject of some of the earlier claims.
However, this link is not sufficient to require all claims to remain in the same case, in light of
George.
Consistent with the George decision and Federal Rule of Civil Procedure 21, the Court
shall sever the above sets of claims. Counts 1, 3A, and 7A shall remain in this original case.
Two new cases shall be opened, each with a newly-assigned case number. The first new case

Page 10 of 18

shall include Counts 8A-D, 11A, and 12A. The second new case shall include Counts 9, 10A,
13A, 13B, and 14A. However, Plaintiff shall have an opportunity to voluntarily dismiss two out
of his three cases if he does not wish to proceed on all of these claims or incur two additional
filing fees. In other words, Plaintiff may allocate the $350 filing fee he has already paid toward
either the original case (Case No. 12-854-GPM, containing Counts 1, 3A, and 7A), or he may
choose to apply that fee toward one of the newly severed cases. But if he wishes to proceed with
litigating more than one case, he must pre-pay the additional filing fee(s), consisting of $350.00
for each case. 2 Full pre-payment is required, because this Court has already determined that
Plaintiff does not qualify to proceed in forma pauperis on any of the claims brought herein.
Claims to be Dismissed
The following claims shall be dismissed for failure to state a claim upon which relief may
be granted:
Count 2A: Retaliation claim against Defendant Hodges as described in Claims 1 and 2.
Plaintiff never stated that he engaged in any protected activity prior to the December 8, 2011,
incident. He thus has failed to include one of the required elements of a retaliation claim,
namely, to identify the protected act that triggered the alleged retaliation. See Higgs v. Carver,
286 F.3d 437, 439 (7th Cir. 2002) (to state a claim, the reasons for the retaliation must be
identified, 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); Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th
Cir. 1988) (complaint must allege a chronology of events from which retaliation may plausibly
be inferred).

This claim shall be dismissed without prejudice.

2

If he does not choose to

Effective May 1, 2013, the filing fee has been increased to $400.00 for any civil case in which a person
does not qualify for IFP status. However, since this action was filed before the effective date of the new
administrative fee, the newly severed cases are deemed a continuation of the original action and shall not
be subject to the additional fee.
Page 11 of 18

voluntarily dismiss the instant case, Plaintiff shall have one opportunity to submit an amended
complaint herein, to plead any facts which may exist to support a retaliation claim against
Defendant Hodges for the December 8, 2011, medical trip.
Count 2B: Claim against Defendant Warden Cross related to Plaintiff’s transportation in
a van without adequate heat. Defendant Cross was not personally involved in the decision to
leave the van windows open, nor is there any indication that he had any knowledge that
Plaintiff’s health would be at risk from the conditions in the van. See Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001) (a defendant must have been personally responsible for the
deprivation of a constitutional right in order for liability to attach). This claim is dismissed with
prejudice.
Count 3B:

Retaliation claim against Defendant Hodges as described in Claim #3

(kicking Plaintiff as retaliation). As noted in Count 2A above, Plaintiff fails to state a retaliation
claim because he did not identify any protected act on his part that allegedly triggered the
“retaliation.”
Count 4: Retaliation and harassment by Defendants Hodges and Dothager in the Eye
Clinic. The comments described by Plaintiff amounted to no more than mere verbal harassment,
which does not rise to the level of a constitutional claim for cruel and unusual punishment.
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”). As to the retaliation claim, Plaintiff
says that Defendant Hodges’ action of keeping Plaintiff locked in the examination room with no
contact with the medical staff was in retaliation for his request to speak with the medical staff.
This argument is circular and does not state a retaliation claim. Further, before asking to speak

Page 12 of 18

to the medical staff, Plaintiff had clearly requested to be returned to Greenville because he did
not feel safe with the attending officers. Plaintiff does not have the right to dictate how the
officers should respond to his demands, or to interrupt the operations at the medical clinic to
summon a staff member to his examination room. The natural consequence of Plaintiff’s request
to go back to Greenville was that he was likely to miss the opportunity for an examination. Any
medical complications from this missed exam are thus attributable to Plaintiff’s own actions.
Count 5: There was no constitutional violation by Defendant Salem for placing Plaintiff
into administrative segregation upon his return from the medical trip on December 8, 2011.
Defendant Hodges reported that Plaintiff’s behavior had been disorderly. Regardless of the truth
or falsity of her statements, officials may put an inmate into administrative detention at any time.
Williams v. Ramos, 71 F3d 1246, 1248 (7th Cir. 1995) (prison officials have discretion to place
inmates in administrative or investigative segregation, or involuntary protective custody, and no
liberty interest is implicated by these types of confinement); see generally Sandin v. Conner, 515
U.S. 472, 483 (1995); Hewitt v. Helms, 459 U.S. 460 (1983). Further, there is no constitutional
requirement to investigate any potential disciplinary charges before sending an inmate to
administrative segregation. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974) (in order to
satisfy due process concerns, a prisoner facing discipline must be given advance written notice of
the charge, the right to appear before the hearing panel, the right to call witnesses if prison safety
allows, and a written statement of the reasons for the discipline imposed; there is no
“investigation” requirement). Plaintiff’s claim that Defendant Salem, in retaliation for Plaintiff’s
report of staff misconduct, failed to investigate the facts and failed to inform appropriate
personnel does not state a claim. Defendant Salem did not have any constitutional duty to either
perform an investigation or inform other staff of Plaintiff’s verbal complaints.

Page 13 of 18

Count 6:

Plaintiff claims a violation of procedural due process, retaliation, and

harassment, for Defendant Hodges’ issuance of an incident report that contained false charges
over the events of December 8. Plaintiff was found guilty after a hearing on December 13, 2011,
and sanctions were imposed. He claims a due process violation because the charges were “not
supported by any evidence” (Doc. 1, p. 16). However, Defendant Hodges’ statement of the facts
provided sufficient evidence to sustain the charges, even if Plaintiff disputes her veracity. While
the decision of a disciplinary hearing board must be supported by “some evidence,” Black v.
Lane, 22 F.3d 1395, 1402 (7th Cir. 1994), even a meager amount of supporting evidence is
sufficient to satisfy this inquiry.

Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).

Plaintiff’s allegations fail to state a due process claim.

Plaintiff’s retaliation claim is that

Defendant Hodges filed a false disciplinary report on him over the events of December 8, 2011,
at the Eye Clinic because he reported her “misconduct” involving the same events. This again
presents a circular argument, and he fails to state a retaliation claim. Finally, he does not
elaborate on his claim for “harassment,” but as stated above, harassment does not generally
violate the Constitution.
Count 7B: Plaintiff states no claim against Defendant Cross with reference to his
retaliation claim for the SHU placement. The complaint does not indicate that Defendant Cross
was personally involved in the retaliatory act. See Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001). His administrative approval of the SHU placement does not amount to the
personal involvement that is needed for liability to attach, and this claim shall be dismissed with
prejudice.
Count 10B:

Plaintiff made no factual allegations that Defendants Mongomery (a

contracted optometrist), Harvey (BOP Regional Clinical Director), or Cross (Warden) had any

Page 14 of 18

personal involvement in the decisions regarding Plaintiff’s pain medication. Indeed, Defendant
Cross is not a medical provider. There is no supervisory liability in a civil rights action, and
absent personal involvement in the deprivation of a constitutional right, no liability will attach.
Sanville, 266 F.3d at 740. The deliberate indifference claim against these Defendants shall be
dismissed with prejudice.
Counts 11B and 12B: As noted above, Plaintiff may proceed at this time with his
retaliation claims (Counts 11A and 12A) connected with the allegedly false disciplinary charge
filed by Defendant Goldsborough and sustained by Defendant Auterson. Whether Plaintiff may
have a claim for deprivation of a liberty interest without due process for his “conviction” on this
disciplinary charge is a separate question. Where a faulty disciplinary proceeding results in lost
good conduct time, there may be a constitutional violation.

However, such a claim is not

cognizable in a civil rights action unless the disciplinary “conviction” has been expunged or
invalidated. Heck v. Humphrey, 512 U.S. 477, 489 (1994). Further, Plaintiff may bring a
challenge to the loss of good time in a separate habeas proceeding pursuant to 28 U.S.C. § 2241,
once he has exhausted his administrative remedies. The due process claims against Defendants
Goldsborough (11B) and Auterson (12B) shall be dismissed without prejudice.
Count 13C: Plaintiff does not state a claim for retaliation or deliberate indifference to
medical needs against Defendant Harvey regarding the April 30, 2012, transfer and failure to
provide medication. He states only that Defendant Harvey was aware of Plaintiff’s need for a
follow-up glaucoma appointment. He does not allege that Defendant Harvey, who is not on staff
at Greenville, but is a regional administrator, took any part in the decision to transfer Plaintiff or
had any personal involvement in seeing that Plaintiff was given his medications. As previously
noted, there is no supervisory liability in a civil rights case. This claim against Defendant

Page 15 of 18

Harvey shall be dismissed with prejudice.
Count 14B: Plaintiff fails to state a retaliation claim against Defendants Lirios or
Robinson, because neither of them was personally involved in the actions on April 30, 2012, that
deprived Plaintiff of his property. Their earlier conduct that caused Plaintiff to lose other
property during his stay in the SHU was by Plaintiff’s own description, merely negligent.
Negligence does not violate the Constitution, nor can it form the basis for a civil rights claim.
Daniels v. Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir.
1995). This claim shall be dismissed with prejudice.
Count 15: None of these allegations involve any of the Greenville Defendants, but
instead are directed toward prison officials at USP-McCreary. As such, without comment on the
merits of any of the claims in Count 15, this Court has no jurisdiction to entertain them and they
must be brought in the district where USP-McCreary is located. Insofar as Plaintiff’s allegations
pertain to the question of exhaustion of his remedies as to any of the surviving claims in this
action, he may assert these matters at the appropriate time (such as in response to a motion for
summary judgment or dismissal). Count 15 shall be dismissed without prejudice.
Defendants Lappin and Laird: Although Plaintiff lists these two among the named
Defendants (Doc. 1, pp. 4, 6), he makes no allegations against either of them in the body of the
complaint that would indicate personal involvement in the claimed constitutional violations.
Neither is a Greenville official. Defendant Lappin is the Director of the Federal Bureau of
Prisons, and Defendant Laird is a Regional Director. Plaintiff’s only further mention is that
Defendant Lappin failed to provide him with some requested documents (Doc. 1, p. 34). These
Defendants shall be dismissed with prejudice.

Page 16 of 18

Disposition
COUNTS 2A, 3B, 11B, 12B, and 15 are DISMISSED without prejudice for failure to
state a claim upon which relief may be granted. COUNTS 2B, 4, 5, 6, 7B, 10B, 13C, and 14B
are DISMISSED with prejudice for failure to state a claim upon which relief may be granted.
Defendants DOTHAGER, SALEM, LAPPIN, MONTGOMERY, HARVEY, LAIRD, and
LIRIOS are DISMISSED from this action with prejudice.
IT IS HEREBY ORDERED that Plaintiff’s claims in COUNTS 8A, 8B, 8C, 8D, 11A,
and 12A are SEVERED into a new case. That new case shall include all claims against
DEFENDANTS GOLDSBOROUGH, HOFFIMEIR, FESTER, JONES, and AUTERSON.
Likewise, Plaintiff’s claims in COUNTS 9, 10A, 13A, 13B, and 14A are SEVERED into a
second, separate new case. That new case shall include all claims against DEFENDANTS
BAUGH, CROSS, KRUSE, POLLMAN, GILLIAN, LYONS, ROBINSON, TONASELKE,
SPENCE, and the JANE DOE FEMALE OFFICER.
The new cases SHALL BE ASSIGNED to the undersigned District Judge for further
proceedings. In each new case, the Clerk is DIRECTED to file the following documents:
(1)
(2)

This Memorandum and Order
The Original Complaint (Doc. 1)

As noted above, if Plaintiff does not wish to incur and pre-pay additional filing fees, he
may voluntarily dismiss either or both of the two newly severed cases. Alternatively, he may
voluntarily dismiss this case and one newly severed case, applying the fee paid in this case to
whichever single case remains open. Plaintiff is ORDERED to notify the Court in writing
within 35 days (on or before July 29, 2013) as to which case(s) he wishes to voluntarily
dismiss. Unless Plaintiff notifies the Court that he does not wish to pursue either or both of the
newly opened actions, he will be responsible for an additional $350.00 filing fee in each new
Page 17 of 18

case. In addition, because Plaintiff is ineligible to proceed IFP on these claims, if he decides to
proceed on more than one case, he must pay the $350.00 filing fee in full within the 35-day
deadline above for the additional case(s). Service shall not be ordered on any of the Defendants
in this or the severed cases until after the deadline for Plaintiff’s response.
IT IS FURTHER ORDERED that the only claims remaining in this action are
COUNTS 1, 3A, and 7A against Defendants Hodges, Cooper, and Hutchcraft, for claims that
arose in connection with the December 8, 2011, medical trip. This case shall now be captioned
as: BURL WASHINGTON, Plaintiff, vs. MARGARET HODGES, GARY COOPER, and
DAVID HUTCHCRAFT, Defendants.
IT IS FURTHER ORDERED that Defendants GOLDSBOROUGH, HOFFIMEIR,
JONES, FESTER, TONASELKE, UNKNOWN PARTY, SPENCE, CROSS, BAUGH,
POLLMAN,

KRUSE,

GILLIAN,

AUTERSON,

LYONS,

and

ROBINSON

are

TERMINATED from this action with prejudice.
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: June 24, 2013
/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

Page 18 of 18