Widmer v. Martin

Filing 6

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, Granting in part 3 MOTION for Service of Process at Government Expense filed by Michael Widmer. IT IS HEREBY ORDERED that COUNT 4 is DISMISSED with prejudice. Defendants BATES and RAY are DISMISSED from this action without prejudice. Defendants ERICKSON, GOINS, WHEELER, STAHLEY, FREEMAN, TREADWAY, and VAUGHN are DISMISSED from this action with prejudice. IT IS FURTHER ORDERED that Plaintiff's claims in COUNTS 2, 3, 5, and 6 are each SEVERED into four separate new cases. Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with any or all of the newly-opened cases, he must notify the Court in writing within 35 days, specifying which case(s) he wish es to voluntarily dismiss. This case shall now be captioned as: MICHAEL WIDMER, Plaintiff, vs. MARTIN, Defendant. IT IS FURTHER ORDERED that Defendants BAYLER, SHEHORN, HODGE, LINGLE and CECIL are TERMINATED from this action with prejudice. As to C OUNT 1, which remains in the instant case, the Clerk of Court shall prepare for Defendant MARTIN: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). (Action due by 2/11/2013). Signed by Judge Michael J. Reagan on 1/7/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL WIDMER, # B-30985,
Plaintiff,
vs.
TYRONE BATES, MARCUS HODGE,
CECIL, RAY, ERICKSON,
SHEHORN, GOINS, WHEELER,
STAHLEY, MARTIN, BAYLER,
FREEMAN, TREADWAY, LINGLE,
and VAUGHN,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 12-cv-1261-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”),
has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The complaint outlines
at least six distinct claims, most of them involving only some of the fifteen Defendants. Further,
the claims do not all arise from the same transaction or occurrence, or series of transactions or
occurrences. Thus, some of the claims shall be severed into separate actions. See George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007) (separate, unrelated claims belong in different suits);
see also FED. R. CIV. P. 20(a)(2). The synopsis below tracks the claims as presented in
Plaintiff’s complaint.
Count 1: Plaintiff first claims that he suffers from an eye disorder that causes
blurred vision and headaches (Doc. 1, p. 5). He requested treatment from Defendant Martin (the
Lawrence Medical Director) over six months before filing this complaint, during which time he
has injured himself due to his inability to see. However, Plaintiff never received any medical
Page 1 of 14

attention for this problem.
Count 2: On July 25, 2012, Plaintiff was transferred to Stateville Correctional
Center (“Stateville”) on a court writ. As he boarded the bus, Defendant Bayler took Plaintiff’s
legal papers and other property from him, and discarded this property. Plaintiff spent 50 days at
Stateville without his legal documents. He thus was unprepared for his court appearances on
felony charges as well as in a child custody matter. He was “forced” to enter a guilty plea to two
felonies because of important evidence that was destroyed by Defendant Bayler, and his ability
to fight for custody of his son was impaired (Doc. 1, p. 6).
Count 3: In September 2012, Plaintiff returned from Stateville to Lawrence with
two medical permits – one for a low bunk and the other for double portions of meals (Doc. 1, p.
7). These were a result of having been seriously injured in an assault while at Stateville. On
September 17, 2012, Defendant Shehorn ordered Plaintiff to move to the top bunk in his cell.
When Plaintiff protested that he had a special medical permit and asked to speak to a crisis team
member, Defendant Stahley responded.

Defendants Stahley and Shehorn decided to place

Plaintiff in a “strip cell,” despite his protests that he was not suicidal nor on any psychiatric
medications. He spent five days in the strip cell. Plaintiff filed a grievance against Defendant
Shehorn over this incident. In retaliation for filing this grievance, on October 1, 2012, Defendant
Shehorn cancelled Plaintiff’s double portions permit and wrote a false disciplinary report on
Plaintiff. The false report was expunged on October 4, but the double portion permit, which
would have continued until October 8, was not restored. As a result, Plaintiff suffered weight
loss, stomach pains, and dizziness.
Plaintiff adds that he was held in a cell in total darkness from November 3 to
November 9, 2012, by Defendants Hodge (the Lawrence Warden), Bayler, and Vaughn (Doc. 1,

Page 2 of 14

p. 8; see Doc. 1-1, pp. 18-20).
Count 4: On October 7, 2012, Defendant Freeman issued Plaintiff a disciplinary
report for disobeying an order, after Plaintiff mailed a legal motion to the mother of his child
regarding a pending custody case (Doc. 1, p. 8). Plaintiff had been notified by Correctional
Officer DeWeese (who is not a Defendant) that the child’s mother had requested no further
contact from Plaintiff, however, court-related communications were exempt from the no-contact
order. Defendant Goins conducted the hearing on this disciplinary charge on October 9, 2012,
and refused to call Plaintiff’s witness or allow Plaintiff to submit a written statement in his
defense.

Further, Defendant Goins falsified the hearing summary by forging Defendant

Wheeler’s name on it. Plaintiff was punished with two months of segregation (during which he
could not have visitation with his son) and three months C grade.
Count 5: Between June and December 2012, many of Plaintiff’s meal trays
arrived cold or with portions missing (Doc. 1, p. 9). On September 27, 2012, Plaintiff observed a
set of lunch trays sitting outside in the rain, exposed to insects and birds. Defendant Erickson
tried to cover up the incident. Plaintiff filed grievances, but did not get satisfactory responses,
nor did Defendants Hodge, Treadway, Erickson, or Wheeler investigate his many complaints.
Further, Plaintiff claims he has been malnourished by Defendants Hodge and Lingle (the
Lawrence Food Supervisor): he has lost weight, suffered stomach cramps, and his hair has
started falling out (See Doc. 1-2, pp. 8-15).
Count 6: Between June 19, 2012, and December 10, 2012, Defendant Cecil (the
mailroom supervisor) has withheld, destroyed, or lost Plaintiff’s incoming and outgoing personal
mail, as well as legal and privileged mail (Doc. 1, p. 10). Plaintiff reported incidents of mail
being delivered to him from 18 days to as much as 60 days after the date of mailing, and of

Page 3 of 14

legal/privileged mail being opened outside his presence and delivered up to 21 days after the
postmarked date.

Plaintiff missed filing deadlines in several court matters.

In addition,

Defendant Cecil stole greeting cards and envelopes from Plaintiff, preventing him from
communicating with his family and friends (See Doc. 1-2, pp. 18-25; Doc. 1-3, pp. 1-24).
In addition to seeking damages, Plaintiff requests injunctive relief and asks for a
prompt hearing for a TRO (temporary restraining order) because he is “being injured daily by
defendants” (Doc.1, p. 11). However, Plaintiff did not file any motion for a TRO or preliminary
injunction, nor does he specify what conduct he seeks to enjoin.
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 Defendant Martin for deliberate
indifference to medical needs (Count 1); against Defendant Bayler for interference with his
access to the courts (Count 2); against Defendant Shehorn for retaliation (Count 3); against
Defendants Hodge and Lingle for failure to provide a diet sufficient to prevent weight loss and
symptoms of malnutrition (Count 5); and against Defendant Cecil for interference with personal
and legal mail, and denial of access to the courts (Count 6). However, the allegations in Count 4
(deprivation of a liberty interest without due process) fail to state a constitutional claim upon
which relief may be granted, and this count shall be dismissed. In addition, several Defendants
mentioned in Counts 1, 3, 5, and 6 shall be dismissed for failure to state a claim against them.
Dismissal of Count 4
In Count 4, Plaintiff complains that he was punished with two months in
segregation following an improperly conducted hearing. Prison disciplinary hearings satisfy
procedural due process requirements where an inmate is provided: (1) written notice of the

Page 4 of 14

charge against the prisoner twenty four (24) hours prior to the hearing; (2) the right to appear in
person before an impartial body; (3) the right to call witnesses and to present physical and/or
documentary evidence, but only when doing so will not unduly jeopardize the safety of the
institution or correctional goals; and (4) a written statement of the reasons for the action taken
against the prisoner. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974); Cain v. Lane, 857
F.2d 1139, 1145 (7th Cir. 1988). In addition to the procedural protections in Wolff, the decision
of the disciplinary hearing board must be supported by “some evidence.” Black v. Lane, 22 F.3d
1395, 1402 (7th Cir. 1994). To determine whether this standard has been met, courts must
determine whether the decision of the hearing board has some factual basis. Webb v. Anderson,
224 F.3d 649 (7th Cir. 2000). In this case, Plaintiff included a copy of the Inmate Disciplinary
Report (Doc. 1-2, p. 4), which shows that his guilty finding was supported by the evidence that
Plaintiff violated the ban on contact by including personal comments on the legal document he
sent to his child’s mother.
Plaintiff complains that in his hearing, Defendant Goins refused to call his witness
and refused to accept the documents he offered in his defense. While these may be violations of
the protections outlined in Wolff, that is not the end of the inquiry. First, punishments such as a
demotion in grade do not amount to a constitutional deprivation, even when they are imposed
after a flawed hearing process. See, e.g., Thomas v. Ramos, 130 F.3d 754, 762 n.8 (7th Cir.
1997). Secondly, a term of disciplinary segregation may not rise to the level of a constitutional
deprivation of a liberty interest, depending on the length of disciplinary confinement and the
conditions of that confinement. Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir.
2009).
When a plaintiff brings an action under § 1983 for procedural due process

Page 5 of 14

violations, he must show that the state deprived him of a constitutionally protected interest in
“life, liberty, or property” without due process of law. Zinermon v. Burch, 494 U.S. 113, 125
(1990). An inmate has a due process liberty interest in being in the general prison population
only if the conditions of his or her confinement impose “atypical and significant hardship[s] . . .
in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
For prisoners whose punishment includes being put in disciplinary segregation, under Sandin,
“the key comparison is between disciplinary segregation and nondisciplinary segregation rather
than between disciplinary segregation and the general prison population.” Wagner v. Hanks, 128
F.3d 1173, 1175 (7th Cir. 1997). The Seventh Circuit has recently elaborated two elements for
determining whether disciplinary segregation conditions impose atypical and significant
hardships:

“the combined import of the duration of the segregative confinement and the

conditions endured by the prisoner during that period.” Marion, 559 F.3d at 697-98 (emphasis in
original).
The first prong of this two-part analysis focuses solely on the duration of
disciplinary segregation.

For relatively short periods of disciplinary segregation, inquiry into

specific conditions of confinement is unnecessary. See Lekas v. Briley, 405 F.3d 602, 612 (7th
Cir. 2005) (56 days); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997) (70 days) (“a
relatively short period when one considers his 12 year prison sentence”). In these cases, the
short duration of the disciplinary segregation forecloses any due process liberty interest
regardless of the conditions. See Marion, 559 F.3d at 698 (“we have affirmed dismissal without
requiring a factual inquiry into the conditions of confinement”).
In the case at bar, Plaintiff was sentenced to only 60 days of disciplinary
segregation. Under the authority referenced in Marion, this is not a long enough period of time

Page 6 of 14

to require factual inquiry into the conditions of segregation. Furthermore, the complaint is
devoid of any indication that the segregation conditions presented an atypical or significant
hardship.

Accordingly, Plaintiff fails to state a constitutional claim for the conduct of the

disciplinary hearing or the resulting punishment. Count 4 shall be dismissed with prejudice.
Defendants to be Dismissed
In Counts 1 and 6, Plaintiff recites that he voiced complaints and wrote grievances
complaining about the unconstitutional conduct of Defendants Martin and Cecil, respectively.
Similarly, in Count 5, Plaintiff filed grievances over the food trays being left outdoors by an
unknown prison worker. However, the fact that a counselor, correctional officer, or even a
supervisor received a complaint about the actions of another individual does not create liability.
In order to be held individually liable, a defendant must be “personally responsible for the
deprivation of a constitutional right.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t
of Soc. Servs., 436 U.S. 658 (1978). Thus, Plaintiff has no claim in Count 1 against Defendants
Treadway and Hodge, merely because he complained to them about Defendant Martin’s failure
to treat his eye disorder.

Furthermore, if a prisoner is under the care of prison medical

professionals, non-medical prison officials such as Defendants Treadway and Hodge “will
generally be justified in believing that the prisoner is in capable hands.” Arnett v. Webster, 658
F.3d 742, 755 (7th Cir. 2011) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). “A
layperson’s failure to tell the medical staff how to do its job cannot be called deliberate
indifference; it is just a form of failing to provide a gratuitous rescue service.” Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). For these reasons, Plaintiff fails to state a
cognizable claim against Defendants Treadway and Hodge in Count 1.

Page 7 of 14

Likewise, Plaintiff states no constitutional claim against Defendants Erickson,
Wheeler, or Treadway in Count 5, or against Defendants Hodge, Treadway, Vaughn, Shehorn, or
Erickson in Count 6, merely because he complained to them about the food handling and
mailroom problems. No claim arises against these Defendants for their failure to respond to the
grievances or to investigate Plaintiff’s complaints. See Owens v. Hinsley, 635 F.3d 950, 953 (7th
Cir. 2011) (the alleged mishandling of grievances “by persons who otherwise did not cause or
participate in the underlying conduct states no claim”). See also Grieveson v. Anderson, 538
F.3d 763, 772 n.3 (7th Cir. 2008); Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005); Antonelli
v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
As noted above, Plaintiff’s claim in Count 5 against Defendants Hodge and
Lingle for failure to provide him with a nutritionally adequate diet shall be given further
consideration. However, as to his Count 5 allegations that food was left outdoors exposed to the
elements, Plaintiff fails to allege that Defendants Hodge, Erickson, Wheeler, or Treadway was
personally responsible for the mishandling of the food trays. He similarly has no claim that
Defendants Hodge, Treadway, Vaughn, Shehorn, or Erickson was personally involved in the
loss, delay, or destruction of his mail that was allegedly perpetrated by Defendant Cecil in Count
6. Plaintiff does mention that other John or Jane Doe Defendants participated in the mail
obstruction, and he may proceed against them in the severed claim designated as Count 6 if he is
able to identify them by name.
In Count 3, the complaint states no claim against Defendant Stahley for retaliation
or any other constitutional violation. Plaintiff alleges only that Stahley approved his placement
in a strip cell, which does not violate the constitution. In addition, Plaintiff’s statement in this
count that he was “held in a cell in total darkness” by Defendants Hodge, Bayler, and Vaughn

Page 8 of 14

fails to rise to the level of a constitutional violation. The grievances included as exhibits (Doc.
1-1, pp. 18-20) show that there was a delay of several days in replacing a burned-out light bulb;
there is no plausible allegation that any Defendant knowingly disregarded a serious risk of harm
to Plaintiff in connection with this incident. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981)
(an Eighth Amendment conditions claim must allege a prison official’s deliberate indifference to
an unquestioned and serious deprivation of basic human needs, or of the minimal civilized
measure of life’s necessities); Caldwell v. Miller, 790 F.2d 589, 600-01 (7th Cir. 1986)
(temporary discomfort or inconvenience do not implicate the constitution).
Finally, Plaintiff lists Tyrone Bates (a Deputy Director of the Illinois Department
of Corrections) and Counselor Ray among the Defendants, but makes no allegations against
either of them in the body of the complaint.

Plaintiffs are required to associate specific

defendants with specific claims, so that defendants are put on notice of the claims brought
against them and so they can properly answer the complaint.

See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a
defendant in his statement of the claim, the defendant cannot be said to be adequately put on
notice of which claims in the complaint, if any, are directed against him. Furthermore, merely
invoking the name of a potential defendant is not sufficient to state a claim against that
individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Accordingly, Defendants
Bates and Ray will be dismissed from this action without prejudice.
Severance of Claims
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

Page 9 of 14

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)). None of the surviving counts in this action
(Counts 1, 2, 3, 5, and 6) are factually related to one another, nor do these counts share any
common Defendants. Accordingly, Count 1 against Defendant Martin shall remain in the instant
action, and Counts 2, 3, 5, and 6 shall each be severed, creating four new actions. Each new
action shall be assigned a new case number, and a separate filing fee will be assessed for each
new case. However, Plaintiff shall have an opportunity to voluntarily dismiss any of the four
severed cases (Counts 2, 3, 5, or 6) if he does not wish to proceed on those claims or incur the
additional filing fees.
Pending Motion
Plaintiff’s motion for service at government expense (Doc. 3) is GRANTED IN
PART AND DENIED IN PART. Service shall be ordered below for Defendant Martin in this
action. No service shall be ordered on the remaining Defendants in the claims to be severed until
after the deadline for Plaintiff to advise the Court on whether he wishes to proceed with those
claims. The dismissed Defendants shall not be served with process.
Disposition
IT IS HEREBY ORDERED that COUNT 4 (deprivation of a liberty interest
without due process) is DISMISSED with prejudice.

Defendants BATES and RAY are

DISMISSED from this action without prejudice.

Defendants ERICKSON, GOINS,

WHEELER, STAHLEY, FREEMAN, TREADWAY, and VAUGHN are DISMISSED from
this action with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s claims in COUNTS 2, 3, 5, and 6,
which are unrelated to the deliberate indifference claim in Count 1, are each SEVERED into

Page 10 of 14

four separate new cases. Those new cases shall be:
1) Claims against DEFENDANT BAYLER for interference with access to the courts
(Count 2 herein);
2) Claim against DEFENDANT SHEHORN for retaliation (Count 3 herein);
3) Claims against DEFENDANTS HODGE and LINGLE for failure to provide a
nutritionally sufficient diet (Count 5 herein); and
4)

Claims

against

DEFENDANT

CECIL

and

JOHN

DOE/JANE

DOE

DEFENDANTS for interference with personal and legal mail, and denial of access to the
courts (Count 6 herein).
The new cases SHALL BE ASSIGNED to the undersigned District Judge for further
proceedings.

In each of the new cases, the Clerk is DIRECTED to file the following

documents:
(1)

This Memorandum and Order;

(2)

The Original Complaint (Doc. 1) and exhibits;

(3)

Plaintiff’s motion to proceed in forma pauperis (Doc. 2).

Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with
any or all of the newly-opened cases, he must notify the Court in writing within 35 days (on or
before February 11, 2013), specifying which case(s) he wishes to voluntarily dismiss. Unless
Plaintiff notifies the Court that he does not wish to pursue the newly opened actions, he will be
responsible for an additional filing fee of $350 in each new case. Service shall not be ordered
on any Defendants in the severed cases until after the deadline for Plaintiff’s response.
IT IS FURTHER ORDERED that the only claim remaining in this action is
COUNT 1 against Defendant MARTIN, for deliberate indifference to Plaintiff’s serious eye

Page 11 of 14

condition.

This case shall now be captioned as: MICHAEL WIDMER, Plaintiff, vs.

MARTIN, Defendant.
IT IS FURTHER ORDERED that Defendants BAYLER, SHEHORN,
HODGE, LINGLE and CECIL are TERMINATED from this action with prejudice.
As to COUNT 1, which remains in the instant case, the Clerk of Court shall
prepare for Defendant MARTIN: (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
Defendant’s place of employment as identified by Plaintiff. If 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 Defendant, and the
Court will require Defendant to pay the full costs of formal service, to the extent authorized by
the Federal Rules of Civil Procedure.
If the Defendant cannot be found at the 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, nor
disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance
is entered), a copy of every further 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 any document was served on Defendant or counsel. Any

Page 12 of 14

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.
Defendant is 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 hereby REFERRED to United States Magistrate
Judge Williams for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C.
§ 36(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 § 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).
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

Page 13 of 14

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: January 7, 2013

s/ MICHAEL J. REAGAN_
United States District Judge

Page 14 of 14