Johnson v. Stuck

Filing 15

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, denying 10 and 11 MOTION in support of temporary restraining order and emergency preliminary injunction filed by Michael Johnson. Defendant HEAD REGISTER #M00488 is DISMISSED from thi s action with prejudice. Defendant WEXFORD HEALTH CARE is DISMISSED from Count 5 and from this action without prejudice. COUNT 6 is DISMISSED with prejudice as frivolous. Accordingly, Defendants WARDEN MARC HODGES, WARDEN TREADWAY, WARDEN STORM, CO UNSELOR STRUBHART, COUNSELOR HINTON and "GRIEVANCE OFFICERS JOHN AND JANE DOE" are DISMISSED from this action with prejudice. COUNTS 8, 9, 10, 11 and 13 are each DISMISSED without prejudice. COUNT 12 is DISMISSED with prejudice. The Clerk o f Court shall prepare for Defendants LT. STUCK, C/O GILBREATH, C/O HARRINGTON, C/O MONICAL, C/O JOHNSON, C/O GRIER, C/O DEAN, C/O GOINS, C/O SHEHORN, C/O SELBY, NURSE CUMMINGS, NURSE WOODS, NURSE ARBUCKLE, NURSE KIZIER, NURSE LINDA, NURSE STALEY, NUR SE PHILLIPE, C/O ALLAN P. DALLAS, C/O JEREMIAH L. BROWN and C/O DILLINGER: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge Michael J. Reagan on 3/19/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL JOHNSON #R-63104,
Plaintiff,
vs.
LT. STUCK, et al.,
Defendants.

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Case No. 13-CV-00185-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Michael Johnson is currently in the custody of the Illinois Department of
Corrections, housed at Lawrence Correctional Center.

On February 22, 2013, Johnson,

proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. Johnson’s allegations
stem from a series of related events, commencing with correctional officials celling him with one
of his known enemies, Inmate Head, resulting in Plaintiff being assaulted by that inmate, leading
to the “Orange Crush” tactical team beating him and “violating his manhood 1, after which his
requests for medical care were ignored, and medical personnel denied him treatment. Plaintiff’s
subsequent “emergency” grievances regarding these events were ignored. After related
disciplinary charges were brought against Plaintiff, he was convicted without being allowed to
attend a hearing. Plaintiff further describes being harassed and tormented by prison staff in
retaliation for his efforts to get these events investigated. From Plaintiff’s perspective, there is
an overarching conspiracy, driven by Defendant Lt. Stuck, with whom Plaintiff had words the

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Attachments to the complaint refer to “anal penetration” and describe Plaintiff being “sexually
assaulted” and “finger f***ed.”
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day before the assault—Plaintiff had not been given pudding on his lunch tray, and Stuck
threatened that the Orange Crush would put him “out of his misery.”
An “emergency” motion for temporary restraining order and/or preliminary
injunction (Doc. 4) has already been denied (Doc. 9). This case is now before the Court for a
preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. Also before the Court are
two additional motions for issuance of a temporary restraining order, and a supporting brief
(Docs. 10, 11 and 12).
1. Section 1915A Review
The Court’s preliminary review of the complaint is in accordance with 28 U.S.C.
§ 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which
relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint
is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint and any supporting exhibits, the Court finds
it appropriate to exercise its authority under Section 1915A; portions of this action are subject to
summary dismissal.
a. The Complaint
Based on the allegations of the complaint, the Court finds it convenient to divide
the pro se action into thirteen counts. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit.
Count 1:

Against Defendants Lt. Stuck, C/O Gilbreath, C/O
Harrington, C/O Monical and C/O Johnson for
endangering Plaintiff’s safety by celling him with
inmate Head, in violation of the Eighth Amendment;

Count 2:

Against Defendants Lt. Stuck, C/O Gilbreath, C/O
Harrington, C/O Monical and C/O Johnson for using
excessive force against and/or sexually assaulting
Plaintiff, in violation of the Eighth Amendment;

Count 3:

Against Defendant C/O Grier for failing to protect
Plaintiff from assault by other guards, in violation of
the Eighth Amendment;

Count 4:

Against Defendants C/O Dean, C/O Goins, C/O
Shehorn, and C/O Selby for deliberate indifference to

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Plaintiff’s serious medical needs, in violation of the
Eighth Amendment;
Count 5:

Against Defendants Wexford Health Care, Nurse
Cummings, Nurse Woods, Nurse Arbuckle, Nurse
Kizier, Nurse Linda, Nurse Staley and Nurse Phillipe
for deliberate indifference to Plaintiff’s serious medical
needs, in violation of the Eighth Amendment;

Count 6:

Against Defendants Warden Marc Hodges, Warden
Treadway, Warden Storm, Counselor Strubhart,
Counselor Hinton and “Grievance Officers John and
Jane Doe” for denying Plaintiff due process by failing to
respond to or improperly responding to Plaintiff’s
“emergency” grievances;

Count 7:

Against Defendants C/O Allan P. Dallas, C/O Jeremiah
L. Brown and C/O Dillinger for denying Plaintiff
procedural due process by preventing him from
attending a disciplinary hearing and presenting
evidence, all in violation of the Fourteenth Amendment;

Count 8:

Against all Defendants for denying Plaintiff the equal
protection of the law, in violation of the Fourteenth
Amendment;

Count 9:

Against all Defendants for conspiring to violate
Plaintiff’s constitutional rights;

Count 10:

Against all Defendants for denying Plaintiff his rights
under Article I, Section 2 of the Illinois Constitution;

Count 11:

Against all Defendants for depriving Plaintiff of his
rights under Illinois law;

Count 12:

Against all Defendants for depriving Plaintiff of his
rights under Illinois Department of Corrections rules;
and

Count 13:

Against unspecified Defendants for harassment.

Plaintiff prays for declaratory judgment, injunctive relief, and compensatory and
punitive damages against all Defendants in their individual and official capacities, and an award
of costs and attorney’s fees. Plaintiff also wants criminal charges to be lodged against all
Defendants.
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b. Discussion
Plaintiff Johnson has taken a double-barreled shotgun approach to drafting his
complaint. For example, Plaintiff characterizes virtually every allegation as being cruel and
unusual punishment, and a denial of equal protection and due process. The Court will, therefore,
address a few principal concerns and cull out those claims that must be summarily dismissed.
Plaintiff specifically named 28 Defendants. Consequently, although the complaint
makes numerous allegations about others, predominately “Doe” defendants, those individuals
have not been deemed Defendants.
Inmate “Head Register, #M00488” is DISMISSED with prejudice. Head is the inmate
who assaulted Plaintiff. Nevertheless, 42 U.S.C. § 1983 creates a cause of action only where the
conduct of a person acting under the color of state law violates a right protected by the United
States Constitution or created by federal statute. There is nothing in the complaint to suggest
that this inmate was acting under color of state law.
Counts 1, 2, 3 and 4 state viable Eighth Amendment claims and shall proceed.
Count 5 also states a viable Eighth Amendment claim, except as to Defendant
Wexford Health Care, which is DISMISSED without prejudice. A corporate defendant violates
an inmate’s rights if it maintains a policy that sanctions the maintenance of prison conditions that
infringe upon the constitutional rights of the prisoner. Estate of Novack ex rel. v. Cnty. of Wood,
226 F.3d 525, 530 (7th Cir. 2000); Woodward v. Corr. Med. Servs. of Ill. Inc., 368 F.3d 917, 927
(7th Cir. 2004). A corporate policy “must be the ‘direct cause’ or ‘moving force’ behind the
constitutional violation.” Id. Plaintiff alleges no such policy and the documentation submitted
suggests no such policy or practice.

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Relative to Count 6, Plaintiff claims that all Defendants were responsible for violating his
procedural due process rights by ignoring or denying his repeated grievances and complaints.
This claim is not grounded in existing law. “[A] state’s inmate grievance procedures do not give
rise to a liberty interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d
1422, 1430 (7th Cir. 1995). The Constitution requires no procedure at all, and the failure of state
prison officials to follow their own procedures does not, of itself, violate the Constitution. Owens
v. Hinsley, 635 F.3d 950, 953–54 (7th Cir. 2011); Maust v. Headley, 959 F.2d 644, 648 (7th Cir.
1992); Shango v. Jurich, 681 F.2d 1091, 1100–01 (7th Cir. 1982). Therefore, Count 6 is
DISMISSED with prejudice as frivolous.
Count 7 states a viable due process claim and shall proceed.
Although Plaintiff repeatedly references “equal protection,” he has failed to state
a claim; therefore, Count 8 is DISMISSED without prejudice. In order to establish a viable equal
protection claim, Plaintiff must show that he was intentionally treated differently from others
who are similarly situated and that there is no rational basis for that difference in treatment.
LaBella Innetka, Inc. v. Village of Winnetka, 628 F.3d 937, 941 (7th Cir. 2010). Plaintiff makes
no such allegations.
In Count 9, Plaintiff repeatedly asserts that all Defendants were a part of a conspiracy driven by
Defendant Lt. Stuck; Count 9 fails to state a claim and shall be DISMISSED without prejudice.
A conspiracy claim may be cognizable under Section 1983 where it resulted in the violation of
an inmate’s civil rights. See Lewis v. Washington, 300 F.3d 829, 831 (7th Cir. 2002). However,
conspiracy is not an independent basis of liability. See Smith v. Gomez, 550 F.3d 613, 617 (7th
Cir. 2008); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). Courts “should not
accept as adequate abstract recitations of the elements of a cause of action or conclusory legal

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statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Even giving liberal construction
to the complaint, see Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009),
Plaintiff's claims of conspiracy rest on conclusory statements.
Counts 10 and 11 are DISMISSED without prejudice. Although supplemental
claims under state law may be brought pursuant to 28 U.S.C. § 1367(a), Plaintiff’s mere
reference to Article I, Section 2 of the Illinois Constitution and “rights under Illinois law,”
without more specificity and some tie to a particular claim, is insufficient to state a claim.
Count 12 is DISMISSED with prejudice because the failure of prison officials to
follow state rules or administrative regulations does not give rise to a constitutional claim.
Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001); Archie v. City
of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989) (a
federal court does not enforce state law or regulations).
Count 13 is DISMISSED without prejudice. Plaintiff concludes his allegations
with a barrage of assertions that, for example, his mail is being tampered with, officers are
playing with his food, he is not allowed to shower, and Internal Affairs has never responded to
his requests for help. These are bald assertions, not attributed to any particular Defendant.
Furthermore, even if a viable claim had been properly alleged, such a claim would have to be
severed from this action. Separate, unrelated claims belong in different suits. See George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007).
All Defendants are sued in their individual and official capacities. Liability under
Section 1983 requires a defendant’s personal involvement in the alleged constitutional violation.
See Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005); Palmer v. Marion County,
327 F.3d 588, 594 (7th Cir. 2003). With respect to official capacity claims, the Supreme Court

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has held that “neither a State nor its officials acting in their official capacities are ‘persons’ under
§ 1983.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). More to the point, the
Eleventh Amendment bars suits against states in federal court for money damages. See Wynn v.
Southward, 251 F.3d 588, 592 (7th Cir. 2001). Therefore, all claims for damages against all
Defendants in their official capacities must be DISMISSED with prejudice.
Plaintiff’s prayer for criminal charges is also DISMISSED with prejudice, as that
is not a civil penalty.

Criminal charges must be pursued through state or federal law

enforcement officers, not the Court.
2. Motions for Temporary Restraining Order
Plaintiff Johnson has renewed his motion for a temporary restraining order by
filing two additional motions (Docs. 10 and 11) and a supporting brief (Doc. 12).
A TRO is an order issued without notice to the party to be enjoined that may last
no more than 14 days. FED. R. CIV. P. 65(b)(2). A TRO may issue without notice only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B) the movant=s
attorney certifies in writing any efforts made to give notice and the reasons
why it should not be required.
FED.R.CIV.P. 65(b)(1).
In contrast, the United States Supreme Court has emphasized that a Apreliminary
injunction is an extraordinary and drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.@ Christian Legal Soc’y v. Walker,
453 F.3d 853, 870 (7th Cir. 2006) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(emphasis in original)). In considering whether to grant injunctive relief, a district court must

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weigh the relative strengths and weaknesses of a plaintiff=s claims in light of a five-part test that
has long been part of the Seventh Circuit=s jurisprudence.
Specifically, a plaintiff must establish: (1) that there is a reasonable or substantial
likelihood that he would succeed on the merits; (2) that there is no adequate remedy at law; (3)
that absent an injunction, he will suffer irreparable harm; (4) that the irreparable harm suffered
by plaintiff in the absence of the injunctive relief will outweigh the irreparable harm that
defendants will endure were the injunction granted; and (5) that the public interest would be
served by an injunction. Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking, 176 F.3d
1004, 1011 (7th Cir. 1999). Accord Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010); Pro=s
Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865, 872-73 (7th Cir. 2009).
Plaintiff describes three additional assaults by correctional officers, and other
harassment. On February 14, 2013, while Plaintiff was in the Health Care Unit, Defendant Lt.
Stuck, and Correctional Officers Tate, Webb, Yarnell and Rue (who are not Defendants)
“assaulted” Plaintiff. Plaintiff offers no additional details. On February 26, Lt. Brown, Maj.
Lynch and several guards (none of whom are Defendants), in two waves, bended and twisted
Plaintiff into submission, tightened the cuffs so as to cut off circulation, kicked Plaintiff in the
genitals (again), pulled his hair, and then a nurse denied him medical care. Lt. Brown cautioned
Plaintiff that “it wasn’t over.” Defendant Warden Hodge has failed to respond to Plaintiff’s
grievances. Plaintiff has since been disciplined for the February 26 incident. On March 6,
guards Hughes, Wise and Piper (none of whom are Defendants) refused to give Plaintiff a dining
tray and threatened that Plaintiff would never eat on their 3:00-11:00 shift.
complains that guards are interfering with his legal mail and documents.

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Plaintiff also

In terms of relief, Plaintiff asks that he be afforded immediate medical treatment,
and that criminal charges be lodged against the perpetrators. Johnson also requests a transfer,
which apparently may occur without Court action, since he also states that a disciplinary transfer
has been approved. In his brief, Plaintiff requests only that mailroom personnel and segregation
staff be directed to properly characterize and mail his legal documents.
With the exception of Lt. Stuck and Warden Hodge, those involved in these
recent incidents are not Defendants. Although Plaintiff asserts that he intends to amend the
complaint to add new claims, he has not done so at this juncture. In any event, Plaintiff has not
cleared the high bar for issuance of a TRO.
As already noted, the recent events described by Plaintiff are, at best, tangentially
related to this action. Nevertheless, the Court is always concerned when an inmate alleges serial
physical abuse and the denial of medical care. Most of the physical injuries sustained suggest
fleeting pain. Plaintiff has failed to describe his injuries in any detail that would suggest
irreparable harm or an urgent need for medical attention. The alleged repeated nature of the
assaults and harassment does trouble the Court. However, by Plaintiff’s own account, he has
been approved for a transfer. Any interference with his legal mail is not urgent or without
another remedy and, obviously, Plaintiff’s ability to redress his grievances with the Court has not
been impeded.
For these reasons, Plaintiff’s motions for issuance of a TRO (Docs. 10 and 11) are
DENIED.

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3. Other Pending Motions
Plaintiff’s motion for appointment of counsel (Doc. 3) is pending. That motion
will be referred to United States Magistrate Stephen C. Williams for further consideration
regarding whether the recruitment of counsel is warranted.
4. Disposition
For the reasons stated, the Court rules as follows.
Defendant HEAD REGISTER #M00488 is DISMISSED from this action with
prejudice.
Defendant WEXFORD HEALTH CARE is DISMISSED from Count 5 and
from this action without prejudice.
COUNT 6 is DISMISSED with prejudice as frivolous.

Accordingly,

Defendants WARDEN MARC HODGES, WARDEN TREADWAY, WARDEN STORM,
COUNSELOR STRUBHART, COUNSELOR HINTON and “GRIEVANCE OFFICERS
JOHN AND JANE DOE” are DISMISSED from this action with prejudice, as there are no
other claims asserted against them.
COUNTS 8, 9, 10, 11 and 13 are each DISMISSED without prejudice.
COUNT 12 is DISMISSED with prejudice.
Plaintiff’s prayer for damages against all Defendants in their official capacities is
DISMISSED with prejudice.
Plaintiff’s prayer for criminal charges is DISMISSED with prejudice.
The only claims remaining in this action are COUNTS 1, 2, 3, 4, 5 and 7.
The Clerk of Court shall prepare for Defendants LT. STUCK, C/O
GILBREATH, C/O HARRINGTON, C/O MONICAL, C/O JOHNSON, C/O GRIER, C/O
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DEAN, C/O GOINS, C/O SHEHORN, C/O SELBY, NURSE CUMMINGS, NURSE
WOODS, NURSE ARBUCKLE, NURSE KIZIER, NURSE LINDA, NURSE STALEY,
NURSE PHILLIPE, C/O ALLAN P. DALLAS, C/O JEREMIAH L. BROWN and C/O
DILLINGER: (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, unless in the interim Plaintiff is denied pauper status.
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.

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documentation of the address shall be retained only by the Clerk. Address information shall not
be maintained in the court file or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an
appearance is entered), a copy of every pleading or other document submitted for consideration
by the Court. Plaintiff shall include with the original paper to be filed a certificate stating the
date on which a true and correct copy of the document was served on Defendants or counsel.
Any paper received by a district judge or magistrate judge that has not been filed with the Clerk
or that fails to include a certificate of service will be disregarded by the Court.

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Defendants are ORDERED to timely file an appropriate responsive pleading to
the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for appointment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Stephen C. Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), if all parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs,
notwithstanding that his application to proceed in forma pauperis has been granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay fees and costs or
give security for the same, the applicant and his or her attorney were deemed to have entered into
a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the
Court, who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to
plaintiff. Local Rule 3.1(c)(1).
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

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for want of prosecution. See FED. R. CIV. P. 41(b).
Finally, the Clerk of Court is DIRECTED to correct the docket to reflect the
following spelling changes in order to correspond with the complaint: “Warden Stohm” should
be changed to “Warden Storm” and “Warden Theadway” should be changed to “Warden
Treadway.”
IT IS SO ORDERED.
DATED: March 19, 2013
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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