Widmer v. Vaughn et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. COUNT 2, the Fourteenth Amendment equal protection claim, is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. COUNT 1, the First Amendment free dom of religion claim, shall proceed.The Clerk of Court shall prepare for Defendants DAVID VAUGHN and MARCUS HODGE : (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 5/29/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL WIDMER, No. B30985,
Plaintiff,
vs.
DAVID VAUGHN, and
MARCUS HODGE,
Defendants.

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CIVIL NO. 13-cv-00417-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Michael Widmer, currently incarcerated at Lawrence Correctional Center
(“Lawrence”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1).
Plaintiff claims that prison chaplain David Vaughn and the warden of Lawrence, Marcus Hodge,
have violated his First Amendment right to freely exercise his religion. More specifically,
Plaintiff asserts that, beginning in December 2012, Defendants Vaughn and Hodge have denied
Plaintiff’s repeated written and oral requests for permission to attend Hebrew Israelite religious
services. It is further asserted that other “similarly situated” inmates have been permitted to
attend religious services. The complaint also relates an incident where Chaplain Vaughn told
Plaintiff that he, Vaughn, was a Christian, and Plaintiff could attend a Christian service, yet
Vaughn never permitted Plaintiff to attend a Hebrew Israelite service, which could suggest a
religious bias.
Plaintiff seeks declaratory judgment, compensatory and punitive damages, and injunctive
relief (although no immediate relief is requested).

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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.
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). The claim of entitlement to
relief must cross “the line between possibility and plausibility. Id. at 557. 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

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complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
The Complaint
Although Plaintiff Widmer only specifies that he is asserting a First Amendment claim
regarding freedom of religion, based on the allegations of the complaint, the Court finds it
convenient to divide the pro se action into two 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 Chaplain David Vaughn and Warden Marcus Hodge for
denying Plaintiff Michael Widmer’s First Amendment right to
freely exercise his religion; and
Count 2: Against Chaplain David Vaughn and Warden Marcus Hodge for
discriminating against Plaintiff Michael Widmer’s religious beliefs
in violation of the Equal Protection Clause of the Fourteenth
Amendment.
Discussion
Count 1
The complaint states a colorable First Amendment claim against Chaplain Vaughn and
Warden Hodge. Therefore, Count 1 shall proceed.
Count 2
The complaint alleges: “I observed that other inmates similarly situated were offered an
opportunity to attend chapel and exercise their freedom of religion.” Out of an overabundance of
caution, the Court has construed that statement as asserting a potential claim under the Equal
Protection Clause of the Fourteenth Amendment (Count 2).
The Equal Protection Clause forbids a state to “deny to any person within its jurisdiction
the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. As a general matter, a “prison
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administrative decision may give rise to an equal protection claim only if the plaintiff can
establish that ‘state officials had purposefully and intentionally discriminated against him.’”
Meriwether v. Faulkner, 821 F.2d 408, 415 n.7 (7th Cir.), cert. denied, 484 U.S. 935 (1987)
(citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982)).
The gravamen of equal protection lies not in the fact of deprivation of a right but
in the invidious classification of persons aggrieved by the state’s action. A
plaintiff must demonstrate intentional or purposeful discrimination to show an
equal protection violation. Discriminatory purpose, however, implies more than
intent as volition or intent as awareness of consequences. It implies that a
decision[-]maker singled out a particular group for disparate treatment and
selected his course of action at least in part for the purpose of causing its adverse
effects on the identifiable group.
Nabozny v. Podlesny, 92 F.3d 446, 453-54 (7th Cir. 1996) (quoting Shango v. Jurich, 681 F.2d 1091,
1104 (7th Cir. 1982)).
A so-called “class-of-one” claim may also exist. Engquist v. Oregon Dep’t of
Agriculture, 553 U.S. 591, 601 (2008), and Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000), make clear that a class-of-one equal protection claim can succeed only if it is pleaded
and proven that (1) the plaintiff has been intentionally treated differently from others similarly
situated, and (2) there is no rational basis for different treatment. 1
Count 2, as pleaded, fails to cross “the line between possibility and plausibility,” even
under the liberal notice pleading standard. Twombly, 550 U.S. at 557. The mere use of the
catchphrase “similarly situated” is insufficient to state a viable Fourteenth Amendment equal
protection claim. See Brooks, 578 F.3d at 581. It is not clear whether Plaintiff is attempting to
1

In Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012), the Court of Appeals for the Seventh
Circuit explained that there is no consensus within the circuit regarding whether one must plead and prove
“illegitimate animus” (Posner, J., leading opinion, affirming dismissal for failure to state a claim) (“The plaintiff
must plead and prove both the absence of a rational basis for the defendant’s action and some improper personal
motive ... for the differential treatment.”); id. at 913 (Wood, J., dissenting) (noting that a plaintiff must plead and
prove that a state actor lacked a rational basis for singling him out); id. at 900 (Easterbrook, Chief Judge, concurring
in the judgment) (motive or intent should play no role in a class-of-one claim). See Jordan v. Cockroft, 490
Fed.Appx. 813, 815 (7th Cir. 2012) (summarizing the perspectives of Circuit Judges Posner and Wood); see also
Del Marcelle, 680 F.3d at 892-93 (collecting cases).

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compare his treatment to how other Hebrew Israelites were treated, or to how practitioners of
other unidentified religions were treated. Moreover, the complaint does not indicate that one or
both of the Defendants were involved in allowing those other inmates to attend chapel. Liability
under Section 1983 requires personal involvement in the alleged constitutional deprivation.
Munson v. Gaetz, 673 F.3d 630, 637 (7th Cir. 2012).
For these reasons, Count 2 shall be dismissed without prejudice.
Disposition
COUNT 2, the Fourteenth Amendment equal protection claim, is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
COUNT 1, the First Amendment freedom of religion claim, shall proceed.
The Clerk of Court shall prepare for Defendants DAVID VAUGHN and MARCUS
HODGE : (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 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
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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 Philip M. Frazier for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge Philip
M. 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 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.

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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: May 29, 2013

s/ J. PHIL GILBERT
United States District Judge

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