Garmon v. Roeckeman et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, Plaintiff's motion to proceed IFP in this case (Doc. 3 ) is GRANTED. The Clerk of Court is directed to send a copy of this Order to Plaintiff and to the Trust Fund Officer at BMR. C OUNTS 3 and 4 are DISMISSED without prejudice. DEFENDANT ROUSEY is dismissed without prejudice. As to COUNTS 1 and 2, the Clerk of Court shall prepare for DEFENDANTS ROECKEMAN, CRAIG, TOWNLEY, RUSSELL, and BROWN: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 4/25/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JESSE GARMON, # B-23470,
Plaintiff,
vs.
ZACHARY ROECKEMAN,
ROBERT CRAIG, JACK TOWNLEY,
ERIC RUSSELL, K. BROWN,
and MAJOR ROUSEY,
Defendants.

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Case No. 13-cv-00287-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, who is currently incarcerated at Big Muddy River Correctional Center
(“BMR”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving
a six year sentence for aggravated domestic battery. His claims arose during his incarceration at
BMR. Plaintiff claims that the defendants, including Zachary Roeckeman (BMR’s warden),
Robert Craig (BMR’s assistant warden of programs), Jack Townley (BMR lieutenant), Eric
Russell (BMR receiving unit counselor), K. Brown (BMR receiving unit officer), and Major
Rousey (BMR head corrections supervisor), violated his constitutional rights by denying him
access to hygiene supplies, medical care, and the court (Doc. 1). Plaintiff claims that Defendants
retaliated against him for filing grievances to address these issues. Plaintiff seeks compensatory
and punitive damages (Doc. 1, pp. 9-10). He also seeks an injunction prohibiting Defendants
from retaliating against him and allowing inmates same-day access to the law library for
purposes of electronically filing documents (Doc. 1, p. 7).

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Specifically, Plaintiff alleges that he is unable to purchase anything from the prison
commissary because he is indigent (Doc. 1, p. 4). Upon his arrival at BMR, Plaintiff received a
one-week supply of hygiene items. These products included a disposable razor, a disposable
toothbrush, a single-use bar of soap, a ½-ounce tube of toothpaste, and a roll of toilet paper.
Plaintiff asked Defendants for help securing refills. Defendant Townley said he could not
do anything to help Plaintiff, and recommended that Plaintiff submit a written request for refills
to the clothing supply room (Doc. 1, pp. 4-5). Plaintiff’s written requests were never answered
(Doc. 1, p. 5). Plaintiff wrote both wardens but, again, received no response. Plaintiff spoke
with Defendant Russell, who told him he was “beat” and has “got nothin’ com[]ing.” Plaintiff
alleges that the lack of hygiene supplies and water violates Illinois law and Illinois Department
of Corrections policies.
Because of the lack of hygiene supplies, Plaintiff has been unable to properly clean the
wounds he sustained while using his dull razor. His gums have become infected. His foul body
odor causes tension with his cellmates. He cannot clean his state-issued clothing. Further, he
cannot access medical care because he cannot afford the co-pay for services.
Plaintiff initially filed grievances to address his concerns (Doc. 1, p. 5). After receiving
no responses, Plaintiff began observing the grievance box. Plaintiff witnessed Defendants
Russell and Brown working together to destroy grievances by the handful. When Plaintiff
mailed a grievance addressing his request for hygiene supplies, Defendant Russell intercepted
and returned the grievance to him. Plaintiff also witnessed Defendant Brown write down the
names of inmates who filed grievances and later “harass” those inmates. In retaliation for
Plaintiff’s decision to file grievances, Defendant Brown denied Plaintiff dayroom privileges,
which included shower access.

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Plaintiff ultimately prepared a complaint to file with this Court (Doc. 1, p. 6). However,
he had difficulty filing it electronically because Major Rousey imposed a rule prohibiting
offenders from using the law library “without written, verifiable proof of a court deadline.”
Plaintiff could not produce proof of any court deadlines before commencing this action. His
written requests for law library access went unanswered. Plaintiff was only allowed to use the
library for thirty minutes during a 3½ month period of time. His attempts to file this lawsuit by
mail also failed, after BMR intercepted and returned his mail to him. Plaintiff alleges that this
lawsuit was delayed by more than a month. Plaintiff now sues Defendants in their individual and
official capacities.
Merits Review Pursuant to 28 U.S.C. § 1915A
According to 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold
review of the complaint. The Court is obligated to accept Plaintiff’s allegations “as true and to
draw all reasonable inferences in favor” of Plaintiff. Marshall v. Knight, 445 F.3d 965, 969 (7th
Cir. 2006) (citing Stachowski v. Town of Cicero, 425 F.3d 1075, 1078 (7th Cir. 2005)). Because
Plaintiff is proceeding in this lawsuit pro se, the Court is also required to liberally construe his
complaint. Id. (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has articulated a
colorable Eighth Amendment claim against Defendants Roeckeman, Craig, Townley, and
Russell based on the denial of hygiene supplies (Count 1). Plaintiff has not alleged that any of
the remaining defendants personally participated in the denial of hygiene supplies. He has
therefore failed to state an Eighth Amendment claim against Defendants Brown and Rousey.
Plaintiff has also articulated a colorable retaliation claim against Defendants Russell and
Brown (Count 2). Plaintiff alleges that Defendant Russell intercepted a grievance he mailed,

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brought it back to him, and then told Plaintiff that he “cannot file a grievance over lack of
hygiene because the State doesn’t have to provide” it (Doc. 1, p. 5). Defendant Brown retaliated
against Plaintiff by routinely denying him dayroom privileges in retaliation for filing grievances,
a deprivation which resulted in Plaintiff’s inability to shower. Both sets of allegations meet the
liberal notice pleading requirements for a retaliation claim. See Hoskins v. Lenear, 395 F.3d 372,
375 (7th Cir. 2005).
Plaintiff has not asserted a colorable claim against Defendants Rousey, Russell, Brown,
or any other defendants for a denial of his access to the court (Count 3). According to the
Seventh Circuit, “[T]he mere denial of access to a prison law library or to other legal materials is
not itself a violation of a prisoner’s rights; his right is to access the courts, and only if the
defendants’ conduct prejudices a potentially meritorious challenge to the prisoner’s conviction,
sentence, or conditions of confinement has this right been infringed.” Marshall, 445 F.3d at 968.
The Seventh Circuit uses a two-part test to decide if prison administrators have violated the right
of access to the courts. Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). First, the prisoner
must show that prison officials failed “to assist in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance from persons
trained in the law.” Jenkins v. Lane, 977 F.2d 266, 268 (7th Cir. 1992) (quoting Bounds v. Smith,
430 U.S. 817, 828 (1977)). Second, he must be able to show “some quantum of detriment
caused by the challenged conduct of state officials resulting in the interruption and/or delay of
plaintiff’s pending or contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir.
1994); see also Lehn, 364 F. 3d at 868. That means that a detriment must exist, a detriment
resulting from illegal conduct that affects litigation. It does not mean that any delay is a
detriment. Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir. 1992), cert. denied, 506 U.S. 1062

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(1993). Regardless of the length of an alleged delay, a prisoner must show actual substantial
prejudice to specific litigation. Kincaid, 969 F.2d at 603.
Plaintiff alleges that Defendant Rousey instituted a policy prohibiting law library
access—and electronic filing access—without proof of an impending court deadline (Doc. 1,
p. 6). Plaintiff claims that this lack of law library access caused a one-month delay in filing this
lawsuit to address his lack of access to hygiene supplies, among other issues. While the Court in
no way condones a policy or practice of denying access to the law library, Plaintiff has failed to
raise a constitutional claim in this case. A one-month delay can be significant. However, even a
lengthy delay does not give rise to a constitutional claim if Plaintiff cannot demonstrate that the
delay substantially prejudiced his ability to litigate his claims. Here, Plaintiff has not alleged that
the delay caused him to miss any court deadlines or forego his right to pursue litigation.
Accordingly, his access to court claim against Defendant Rousey shall be dismissed without
prejudice.
Likewise, Plaintiff has not articulated a colorable access to court claim against
Defendants Russell and Brown, or any other defendants. A prisoner’s constitutional right of
access to the court “includes the right to pursue the administrative remedies that must be
exhausted before a prisoner can seek relief in court.” DeWalt v. Carter, 224 F.3d 607, 618 (7th
Cir. 2000). Plaintiff alleged that Defendants Russell and Brown interfered with his access to the
court. Once again, Plaintiff fails to allege that he suffered actual substantial prejudice as a result
of Defendants Russell and Brown’s conduct. While the Court does not condone this conduct,
Plaintiff has not asserted an access to court claim against Defendants Russell or Brown. Plaintiff
has not alleged that any other defendants were personally involved in this deprivation. He has

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therefore stated no access to court claim against Defendants Russell, Brown, Roeckeman, Craig,
or Townley. This claim shall be dismissed without prejudice.
Plaintiff has failed to state a claim against Defendants for the denial of his access to
medical services (Count 4). Plaintiff alleges only that he “cannot afford to pay the medical copay and therefore cannot see the nurse, doctor, or dentist” (Doc. 1, p. 5). The Seventh Circuit
has held that the “imposition of a modest fee for medical services, standing alone, does not
violate the Constitution.” Poole v. Isaacs, 703 F.3d 1024, 1027 (7th Cir. 2012). In Illinois, there
are a number of exemptions from the co-payment requirement, including one for people who
meet the state’s definition of indigency. Id. (citing 730 ILCS 5/3-6-2(f)). Where an Illinois
inmate is truly indigent, he is exempt from the co-payment requirement. However, Plaintiff’s
complaint lacks any detail regarding this claim, beyond the allegation set forth herein. It is
altogether unclear whether Plaintiff is claiming that an individual deprived him of access to
medical services, a policy or custom resulted in his lack of access, or his own misunderstanding
of the co-payment requirement served as a barrier to his access to medical services. Plaintiff has
failed to state a claim upon which relief can be granted, and this claim shall be dismissed without
prejudice.
Pending Motions
Plaintiff has filed a motion to proceed in forma pauperis (Doc. 2). Along with this
motion, Plaintiff submitted an affidavit stating that he has no employment, has received no
income for the last twelve months beyond his state stipend, and has no assets. Plaintiff has not
tendered an updated certified copy of his inmate trust fund account statement from all facilities
where he has been incarcerated for the past six months. Plaintiff included an inmate trust fund
account statement from BMR, where he is currently incarcerated. He did not provide one from

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Graham Correctional Center (“Graham”), where he was previously incarcerated. The Court has
requested a trust fund statement for the six-month period immediately preceding the filing of this
case from Graham, but to date has not received information sufficient to determine the amount of
Plaintiff’s initial partial payment. Based on Plaintiff’s affidavit of indigence, the Court
concludes that he is unable to pay in full the $350.00 filing fee in this case at this time, and
therefore it is appropriate to permit him to proceed IFP in this case without full prepayment of
the fee. At such time as the Court receives from the institution’s Trust Fund Officer the certified
copy of Plaintiff’s trust fund account statement as requested, the Court will enter an order
authorizing the Trust Fund Officer to deduct from Plaintiff’s trust fund account the initial partial
filing fee, and to forward the initial partial filing fee to the Clerk of Court. The order shall also
direct subsequent payments to be made pursuant to § 1915 until the filing fee is paid in full. To
conclude, Plaintiff’s motion to proceed IFP in this case (Doc. 3) is GRANTED. The Clerk of
Court is directed to send a copy of this Order to Plaintiff and to the Trust Fund Officer at BMR.
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Philip M. Frazier for further consideration.
Finally, Plaintiff has filed a motion for service of process at government expense
(Doc. 4). The motion is GRANTED in part and DENIED in part. Service shall be ordered
below for Defendants Roeckeman, Craig, Townley, Russell, and Brown. Service shall not be
ordered for Defendant Rousey.
Disposition
COUNTS 3 and 4 are DISMISSED without prejudice. DEFENDANT ROUSEY is
dismissed without prejudice.
As to COUNTS 1 and 2, the Clerk of Court shall prepare for DEFENDANTS

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ROECKEMAN, CRAIG, TOWNLEY, RUSSELL, and BROWN: (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 Defendants’ place of employment as identified by Plaintiff. If any
Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk
within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect
formal service on that Defendant, and the Court will require that Defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
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

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Judge Philip M. Frazier for further pre-trial proceedings, including a decision on Plaintiff’s
motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Frazier 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 § 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).
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 25, 2013
s/ J. Phil Gilbert
U.S. District Judge

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