Whiteside v. Folsom et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS HEREBY ORDERED that COUNT 1 fails to state a claim upon which relief may be granted, and thus is DISMISSED without prejudice. Defendant S.A. GODINEZ is DISMISSED from this action without prejudice. IT IS FURTHER ORDERED that ALAN MARTIN and LT. GRISSOM are DISMISSED from this action without prejudice. The Clerk of Court shall prepare for Defendants SGT. FOLSOM, C/O MCINTRUF, C/O STALLING, LT. HUNTER, DAVID LEWIS and C/O BUNCH: (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 4/1/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DINARR WHITESIDE,
No. 13-00224-MJR,
Plaintiff,
vs.
S.A. GODINEZ,
SGT. FOLSOM,
ALAN MARTIN,
C/O BUNCH,
C/O MCINTRUF,
C/O STALLING,
LT. HUNTER,
LT. GRISSOM, and
DAVID LEWIS,
Defendants.

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CIVIL NO. 13-cv-00224-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Dinarr Whiteside, an inmate in Vienna Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case is
now before the Court for a preliminary review of the complaint pursuant to 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.

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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,
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.
The Complaint
Plaintiff alleges that prior to April 19, 2012, he repeatedly made “complaints” to
Illinois Department of Corrections Director S.A. Godinez about being retaliated against.
Godinez never took any action.
On April 19, 2012, Sgt. Folsom refused Plaintiff’s request to retrieve some
personal property from Plaintiff’s property box. Plaintiff then asked Sgt. Folsom for a grievance
form. Not only did Folsom refuse to give Plaintiff the form, he then handcuffed Plaintiff—

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rhetorically asking Plaintiff, “So, you want to f*** with me?”—and then physically assaulted
him, slamming Plaintiff about, choking him and “busting” Plaintiff’s chin.

C/O McIntruf

watched with his hands in the air, asking, “What’s going on here?” C/O Stalling, who was
apparently nearby, stepped up to wipe Plaintiff’s blood from the wall and declared that he had
not seen anything.
Plaintiff was placed in a segregation cell. As Plaintiff was bleeding and in need
of medical attention, C/O Bunch taunted him with grievance forms. Lt. Hunter and LPN David
Lewis came to the cell and examined Plaintiff, but never got Plaintiff anything for his pain.
Based on the allegations of the complaint, the Court finds it convenient to divide
the pro se action into four 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 S.A. Godinez for refusing to take action on
Plaintiff’s repeated complaints about being subjected to
retaliation;
Count 2: Against Sgt. Folsom for using excessive force against
Plaintiff as a means of retaliation for Plaintiff pursuing
grievances, in violation of the Eighth and First
Amendments;
Count 3: Against C/O McIntruf and C/O Stalling for exhibiting
deliberate indifference by watching Plaintiff be assaulted
and doing nothing to stop the assault, in violation of the
Eighth Amendment; and
Count 4: Against Lt. Hunter, LPN David Lewis and C/O Bunch for
exhibiting deliberate indifference by not getting Plaintiff
obviously needed medical care for his pain and injuries, in
violation of the Eighth Amendment.

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Discussion
A generous reading of the complaint reveals that Counts 2-4 state viable
constitutional claims, so those three counts shall PROCEED.
Count 1, however, does not state a claim upon which relief can be granted.
Exactly how Plaintiff presented his “complaints” to Godinez is relevant to any constitutional
analysis; therefore, this calim does not satisfy the Twombly pleading standard. In any event,
insofar as Director Godinez’s failure to take action could be viewed as a Fourteenth Amendment
due process violation, such a claim fails as a matter of law.
The Constitution requires no grievance procedure at all, and the failure of state
prison officials to follow their own procedures does not, of itself, violate the Constitution. Maust
v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100–01 (7th
Cir. 1982). As such, the alleged mishandling of grievances “by persons who otherwise did not
cause or participate in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950,
953 (7th Cir. 2011); See also Grieveson v. Anderson, 538 F.3d 763, 772 n. 3 (7th Cir. 2008);
George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996). “Ruling against a prisoner on an administrative complaint does not cause or
contribute to the [constitutional] violation.” George v. Smith, 507 F.3d 605, 609–10 (7th Cir.
2007).
Plaintiff fairs no better if Count 1 is construed as an Eighth Amendment
deliberate indifference claim stemming from some perceived failure to prevent the April 19,
2012, assault. Such a claim of supervisory liability cannot be brought in this case because “[t]he
doctrine of respondeat superior does not apply to § 1983 actions; thus to be held individually
liable, a defendant must be ‘personally responsible for the deprivation of a constitutional right.’”

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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). Personal involvement is a prerequisite for individual liability
in a Section 1983 action; a defendant must have caused or participated in an alleged
constitutional deprivation to incur liability. Kuhn v. Goodlow, 678 F.3d 552, 555–56 (7th Cir.
2012). More to the point, supervisors who are simply negligent in failing to detect and prevent
subordinate misconduct are not “personally involved” so as to incur liability. Rather,
“supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind
eye for fear of what they might see. They must in other words act either knowingly or with
deliberate, reckless indifference.” Morfin v. City of East Chicago, 349 F.3d 989, 1001 (7th Cir.
2003) (quoting Jones v. City of Chicago, 856 F.2d 985, 992–93 (7th Cir. 1988)).
For the reasons stated, Count 1 shall be DISMISSED; out of an overabundance of
caution, dismissal shall be without prejudice. Consequently, Defendant S.A. Godinez shall be
DISMISSED from this action without prejudice.
Warden Alan Martin and Lt. Grissom are named in the caption of the complaint,
but they are not otherwise mentioned in the complaint. Therefore, Martin and Grissom shall be
DISMISSED from this action without prejudice.
Pending Motions
Plaintiff's motion for recruitment of counsel (Doc. 3) shall be REFERRED to
United States Magistrate Judge Stephen C. Williams for further consideration.
Disposition
For the reasons stated, the Court rules as follows.

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IT IS HEREBY ORDERED that COUNT 1 fails to state a claim upon which
relief may be granted, and thus is DISMISSED without prejudice. Defendant S.A. GODINEZ
is DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that ALAN MARTIN and LT. GRISSOM are
DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that the only claims remaining in this action are
COUNTS 2-4 against Defendants SGT. FOLSOM, C/O MCINTRUF, C/O STALLING, LT.
HUNTER, DAVID LEWIS and C/O BUNCH. This case shall now be captioned as: DINARR
WHITESIDE, Plaintiff, vs. SGT. FOLSOM, C/O MCINTRUF, C/O STALLING, LT.
HUNTER, DAVID LEWIS and C/O BUNCH, Defendants.
The Clerk of Court shall prepare for Defendants SGT. FOLSOM, C/O
MCINTRUF, C/O STALLING, LT. HUNTER, DAVID LEWIS and C/O BUNCH: (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

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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 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 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

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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).
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: April 1, 2013
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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