Hammond v. James et al

Filing 12

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, COUNTS 4, 5, and 6 are DISMISSED with prejudice for failure to state a claim upon which relief may be granted. Defendants DEEN, ALLEN, FURLOW, SHAH, GAETZ, and VAN are DISMISSED from th is action with prejudice. The Clerk of Court shall prepare for Defendants JAMES, BRADLEY, LIND, REEVES, WALLACE, GODINEZ, and HARTMAN: (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 G. Patrick Murphy on 6/19/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAD HAMMOND, # K-53658,
Plaintiff,
vs.
C/O JAMES, MAJOR BRADLEY,
C/O LIND, DR. REEVES,
DR. WALLACE, K. DEEN,
GINA ALLEN, S.A. GODINEZ,
COUNSELOR HARTMAN,
C/O FURLOW, DR. SHAH,
WARDEN GAETZ,
and DR. VAN,
Defendants.

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Case No. 13-cv-418-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, currently incarcerated at Western Illinois Correctional Center (“Western
Illinois”), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose
while he was incarcerated at Pinckneyville Correctional Center (“Pinckneyville”). Plaintiff is
serving sentences for multiple convictions for residential burglary. He claims that Defendants
failed to protect him from assaults by fellow inmates during his confinement at Pinckneyville.
More specifically, the complaint states that in March 2011, Plaintiff learned that a fellow
Pinckneyville inmate (Lara) was serving time for molesting the child of Plaintiff’s family friend
(Doc. 1, p. 15).

Plaintiff did not know inmate Lara, nor could he identify him by sight.

However, anticipating problems, he contacted Defendant James (Internal Affairs officer) and
signed a “Keep Separate From” (“KSF”) form to request no contact with inmate Lara. Approval
of the KSF form would be up to Defendant Bradley (head of Internal Affairs). Upon inquiry as
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to the status of his KSF request, Plaintiff learned that Defendant James, in an effort to determine
whether Lara knew or had any animosity toward Plaintiff, had showed Plaintiff’s picture to
inmate Lara and identified Plaintiff as “Tessie’s brother” (Doc. 1, p. 16). Plaintiff believed this
reference alerted Lara to his connection to Lara’s victim. On June 27, 2011, Plaintiff was placed
in the same housing unit as Lara, so he wrote to Defendant James asking to be moved. Inmate
Lara assaulted Plaintiff on July 1, 2011.
A few days later, Plaintiff was put back into general population by Defendant Lind, and
he asked about his KSF request. Defendant Lind told him to “just chill,” and disputed Plaintiff’s
claims that he had requested protection before the assault (Doc. 1, p. 17).
Plaintiff’s next cellmate was inmate Patterson, who stole from Plaintiff and assaulted him
(Doc. 1, p. 17). Plaintiff did not report these incidents because he was told that inmate Patterson
was working for Internal Affairs. Instead, Plaintiff “refused housing” to get out of that cell, and
was placed in segregation for one month.

Plaintiff then wrote to Defendant Reeves

(Pinckneyville doctor/mental health administrator) and Defendant Wallace (psychologist) asking
to be “placed back on vulnerable status” 1 for his safety (Doc. 1, p. 17). However, this was not
done.
On August 21, 2011, Plaintiff filed a grievance requesting a lateral transfer (Doc. 1, pp.
4-8). It was denied by Defendant Deen (Pinckneyville grievance officer) (Doc. 1, pp. 10, 17).
She relied on statements by Defendants James and Lind, who denied Plaintiff’s allegations
regarding the events leading up to the Lara attack. Defendants Allen and Godinez concurred in
the denial of the grievance (Doc. 1, pp. 11, 17).
On May 14, 2012, Plaintiff wrote to Defendant Hartman (counselor) explaining that his
Plaintiff does not explain the meaning of placement on “vulnerable status,” but appears to believe that
this would have resulted in some protection for him or affected his subsequent housing arrangements.
1

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new cellmate (Lesley Bowman) was making unwanted sexual advances to him and threatening to
“take” the bottom bunk from Plaintiff (Doc. 1, pp. 17-18). Plaintiff had a “low bunk” permit due
to medical problems, but had lost his copy, so he requested Defendant Hartman to provide him a
copy of the permit. He also wrote Defendant Wallace asking for a copy. On May 17, 2012,
Plaintiff wrote to “R5 Lt. or Sergeant” requesting to be moved.
Inmate Bowman attacked and choked Plaintiff on May 18, 2012.

He immediately

reported this assault to Defendants Lind and Hartman, and filed a grievance requesting he be
moved for his safety 2 (Doc. 1, pp. 12, 18). However, Plaintiff’s cell assignment was not
changed. A week later, Plaintiff asked Defendant Dr. Shah for a new ace bandage for a prior
injury and mentioned his “assaultive cellmate.” Id.
On May 29, 2012, Plaintiff complained to Defendant Van (psychiatrist) that his reports of
inmate Bowman’s sexual advances were being ignored. When he returned to the cell from that
appointment, Plaintiff was attacked again by Bowman (Doc. 1, p. 19). Bowman struck Plaintiff
in the head and face, but Plaintiff did not punch back because of his medical impairments. 3 He
alerted guards to the attack by kicking the cell door.
Defendant Furlow issued Plaintiff (and Bowman) a disciplinary ticket for fighting,
despite Plaintiff’s protest that he had been attacked and had made multiple reports of Bowman’s
threats. Plaintiff wrote Defendant Lind asking to be transferred to another prison for his safety.
Plaintiff saw Defendant Reeves on June 5, 2012, for a mental health review (Doc. 1, pp. 32-33),
and again requested to be placed back on “vulnerable status” (Doc. 1, p. 19-20). Plaintiff
thought Defendant Reeves agreed to make this change, because he was not required to share his
This May 20, 2012, grievance refers to the cellmate as “Lesley Bowers” and complains that Defendant
Lind failed to respond to Plaintiff’s request for protection (Doc. 1, p. 12).
2

These included an injury to Plaintiff’s spine, and right arm, wrist and hand, for which he required the
Ace bandage and a “wrist wrap” (Doc. 1, p. 13).
3

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cell with another inmate while he remained in Pinckneyville. However, it appears his request
was not granted.
Plaintiff went before the disciplinary committee on the fighting charge on June 6, 2012,
and was found guilty. Although he had requested a witness (another inmate who had been told
by Plaintiff’s cellmate Bowman that he planned to attack Plaintiff on May 29), no witness was
called. Plaintiff was found guilty and his discipline included a transfer to Menard. Plaintiff
believes he would not have been transferred there if Defendant Reeves had restored him to
“vulnerable” status (Doc. 1, p. 20).
After Plaintiff’s transfer to Menard, Defendant Lind came to interview him, and said he
would help Plaintiff. Instead, he changed Plaintiff’s gang status from no affiliation to “White
Supremacist” (Doc. 1, p. 20). Plaintiff insists he has never been connected to any gang, did not
ask for this change, and is now at greater security risk because of Defendant Lind’s action.
Plaintiff claims Defendant Lind took this action in retaliation against him (Doc. 1, p. 15).
Finally, Plaintiff includes Defendant Gaetz (Pinckneyville Warden) as a party because
after Plaintiff wrote him letters requesting to be placed back on vulnerable status, he deferred to
the judgment of Defendants Reeves, Van, Wallace, Shah, Deen, and Hartman and denied the
request 4 (Doc. 1, p. 20-21).
As relief, Plaintiff seeks an injunction to expunge his disciplinary conviction for fighting
on May 29, 2012; to remove his “gang affiliation” status; and to place him back on “vulnerable
status” for his safety (Doc. 1, p. 34). He also seeks monetary damages.

Plaintiff does not indicate that he ever requested Defendants Van or Shah to grant him vulnerable status.
Plaintiff did ask Defendants Reeves and Wallace to do so. He asked Defendant Deen for a transfer, and
asked Defendant Hartman for protection.
4

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Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has articulated the
following colorable federal claims, which shall receive further consideration:
Count 1:

Against Defendants James and Bradley, for deliberate indifference to

Plaintiff’s safety and failure to protect him from assault by inmate Lara;
Count 2:

Against Defendants Reeves, Wallace, Hartman, and Lind, for deliberate

indifference to Plaintiff’s safety and failure to protect him from assault by inmate Bowman; and
Count 3: Against Defendant Lind for retaliation (changing Plaintiff’s gang affiliation
status after Plaintiff filed grievances against him). 5
In addition to the Defendants listed above, Defendant Godinez shall remain in the action,
for the sole purpose of carrying out any injunctive relief to which Plaintiff may ultimately be
entitled if he should prevail. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011)
(proper defendant in a claim for injunctive relief is the government official responsible for
ensuring any injunctive relief is carried out). It does not appear that any other named Defendant
would be in a position to implement injunctive relief, as Plaintiff is no longer housed at
Pinckneyville.

Although Plaintiff’s retaliation claim could have been pled more clearly, he refers to the “next to final
paragraph” of his complaint as containing this claim (Doc. 1, p. 15). That paragraph describes Defendant
Lind’s alleged retaliatory act. Elsewhere in the complaint, Plaintiff refers to and attaches grievances in
which he complains about or mentions Defendant Lind (Doc. 1, pp. 10, 12, 17-18). Giving liberal
construction to Plaintiff’s complaint, this is sufficient to state a retaliation claim at this early stage of the
litigation. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
5

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The following claims, however, fail to state a constitutional violation upon which relief
may be granted, and shall be dismissed:
Count 4: Failure to protect Plaintiff from assaults by inmate Patterson;
Count 5: Denial of Plaintiff’s August 21, 2011, grievance requesting a transfer, by
Defendants Deen, Allen, and Godinez; and
Count 6: Filing of a false disciplinary report by Defendant Furlow, after Plaintiff was
attacked by inmate Bowman.
In addition, Defendants Gaetz, Shah, and Van shall be dismissed from the action.
Dismissal of Count 4
In order to state a claim for deliberate indifference to Plaintiff’s safety in the face of a
risk of attack from a fellow prisoner, the complaint must indicate that Plaintiff made a prison
official aware of the risk he faced, but the official acted, or failed to act, in disregard of that risk.
Farmer v. Brennan, 511 U.S. 825, 833 (1994); see also Pinkston v. Madry, 440 F.3d 879, 889
(7th Cir. 2006). With reference to the assaults on Plaintiff by his cellmate Patterson, Plaintiff
specifically states that he did not report these incidents or any threats he may have received from
Patterson. Given this fact, no Defendant can be said to have been deliberately indifferent to any
risk Plaintiff faced from Patterson. Count 4 shall be dismissed with prejudice.
Dismissal of Count 5
Although prison officials have a duty to protect prisoners from known risks of violence at
the hands of other inmates, see Farmer, 511 U.S. at 833, a prisoner does not have a right to
obtain a transfer to another institution. A transfer request may be granted or denied at the
discretion of prison administrators. See DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir.
1992) (“States may move their charges to any prison in the system”). Therefore, the denial by

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Defendants Deen, Allen, and Godinez of Plaintiff’s transfer request/grievance did not violate any
constitutional right.
Moreover, the denial of a grievance by an official who merely reviews an adverse action,
but was not the original decision-maker, does not give rise to liability. The alleged mishandling
or denial 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); Antonelli v. Sheahan, 81 F.3d
1422, 1430 (7th Cir. 1996). According to Plaintiff’s allegations, Defendants Allen and Godinez
simply approved Defendant Deen’s action on Plaintiff’s grievance. This is not a violation of
Plaintiff’s rights. While a different outcome on the grievance might have put Plaintiff out of
reach of inmate Bowman, this is not a sufficient connection to impose liability on Defendants
Deen, Allen, or Godinez for the Bowman assault. Count 5 and Defendants Deen and Allen shall
be dismissed from the action with prejudice.
Dismissal of Count 6
Plaintiff asserts that Defendant Furlow wrote him a false disciplinary report for fighting,
when in fact he was the victim of attack by his cellmate Bowman, and did not fight back.
In Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984), the Seventh Circuit held
that the filing of false disciplinary charges by a correctional officer does not state a Fourteenth
Amendment claim when the accused inmate is given a subsequent hearing on those charges in
which the inmate is afforded the procedural protections outlined in Wolff v. McDonnell, 418 U.S.
539 (1974) (advance written notice of the charge, right to appear before the hearing panel, the
right to call witnesses if prison security allows, and a written statement of the reasons for the
discipline imposed). The Seventh Circuit reasoned that prisoners have a right “to be free from

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arbitrary actions of prison officials,” Hanrahan, 747 F.2d at 1140, but determined that the
procedural protections outlined in Wolff provided the appropriate protection against arbitrary
actions taken by a correctional officer such as issuing the inmate a fabricated conduct violation.
If Plaintiff was given a proper hearing, yet was found guilty of the false charge, he would
not have a constitutional claim so long as the decision of the disciplinary hearing board was
supported by “some evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). In this case,
the officers’ statements on the disciplinary report (Doc. 1, pp. 30-31) are sufficient evidence to
support a finding of guilt, even though Plaintiff disputes their veracity. Furthermore, even
though Plaintiff asserts he was denied one of the procedural protections in Wolff (his witness was
not consulted), he still may not have an actionable claim.
In order to state a claim for a procedural due process violation, Plaintiff 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); see also Marion v.
Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009) (disciplinary segregation does not
impose an atypical and significant hardship unless it is of sufficient duration and includes
conditions that are markedly more harsh than in nondisciplinary segregation). Other than his
disciplinary transfer to Menard, Plaintiff does not describe any punishment that was imposed
upon him as a result of the allegedly flawed hearing. As noted above, prison officials may
transfer an inmate to any institution without implicating a due process interest. DeTomaso v.
McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (“prisoners possess neither liberty nor property in
their classifications and prison assignments”).
The allegations against Defendant Furlow in Count 6 fail to state a violation of Plaintiff’s
civil rights, and shall be dismissed with prejudice. If the disciplinary action had any impact on

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the duration of Plaintiff’s sentence (which the complaint does not disclose), this dismissal shall
not preclude him from seeking relief in a federal habeas corpus action, but only after he has
exhausted his remedies in state court.
Dismissal of Defendants Shah, Van, and Gaetz
Plaintiff’s only allegation against Defendant Shah (a medical doctor) is that he mentioned
his assaultive cellmate (Bowman) during a medical visit regarding his unrelated arm injury.
Similarly, Plaintiff saw Defendant Van for a mental health visit, and complained that other
officials had ignored his reports about Bowman’s sexual advances. Plaintiff does not indicate
that he asked either of these Defendants to take steps to protect him from Bowman, or that they
could have done so if asked. He does not include either of them among the Defendants (Reeves
and Wallace) whom he requested to place him back on “vulnerable status.” It thus appears that
Plaintiff has included Defendants Shah and Van as parties because they had a theoretical
opportunity to rescue Plaintiff, if they had taken heroic action when he made casual mention of
his concerns about his cellmate. The facts alleged do not indicate that either of these Defendants
had sufficient awareness of a specific, impending, and substantial threat to Plaintiff’s safety that
would satisfy the subjective component of a deliberate indifference claim. See Pope v. Shafer,
86 F.3d 90, 92 (7th Cir. 1996). Defendants Shah and Van shall be dismissed.
As to Defendant Gaetz, the complaint indicates that he merely followed the
recommendations or ratified the actions of other officials who had denied Plaintiff’s requests to
be placed on “vulnerable status.” As noted in the discussion under Count 5, the action of
approving a subordinate official’s resolution of a grievance or complaint does not give rise to
liability. See Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Furthermore, the doctrine of
respondeat superior is not applicable to § 1983 actions, and Plaintiff’s allegations do not suggest

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that Defendant Gaetz was “personally responsible for the deprivation of a constitutional right.”
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). A defendant in a supervisory
capacity may only be liable for “deliberate, reckless indifference” where he or she has
purposefully ignored the misconduct of his/her subordinates.

Id.

The complaint does not

suggest that this was the case, therefore, Defendant Gaetz shall be dismissed from the action.
Pending Motions
Plaintiff’s motion for service of process at government expense (Doc. 5) is GRANTED
IN PART AND DENIED IN PART. Service shall be ordered below for the Defendants who
remain in the action. The dismissed Defendants shall not be served.
Disposition
COUNTS 4, 5, and 6 are DISMISSED with prejudice for failure to state a claim upon
which relief may be granted. Defendants DEEN, ALLEN, FURLOW, SHAH, GAETZ, and
VAN are DISMISSED from this action with prejudice.
The Clerk of Court shall prepare for Defendants JAMES, BRADLEY, LIND,
REEVES, WALLACE, GODINEZ, and HARTMAN: (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

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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
Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson 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

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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: June 19, 2013
/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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