Morgan v. St Clair County/ 20th Circuit et al

Filing 9

ORDER: The Complaint (Doc. 1 ) is DISMISSED. COUNT 1 is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. COUNTS 2 and 3 are DISMISSED without prejudice for failure to state a claim upon which relief may be g ranted. Defendants ST. CLAIR COUNTY/20th CIRCUIT, ILLINOIS DEPARTMENT OF CORRECTIONS FIELD SERVICES DEPARTMENT SUPERVISOR, OFALLON POLICE OFFICER, TEVERBAUGH, and CHANEY are DISMISSED with prejudice from this action. IT IS FURTHER ORDERED that, sh ould he wish to proceed with Count 3 in this case, Plaintiff shall file his First Amended Complaint, within 35 days of the entry of this order. Failure to file an amended complaint shall result in the dismissal of this action with prejudice. (Amended Pleadings due by 9/11/2013). Signed by Judge G. Patrick Murphy on 8/7/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

FERNANDO G. MORGAN, JR., # B-83917, )
)
Plaintiff,
)
)
vs.
)
)
ST. CLAIR COUNTY/20th CIRCUIT,
)
ILLINOIS DEPT. of CORRECTIONS
)
FIELD SERVICES DEPT. SUPERVISOR, )
O’FALLON POLICE OFFICER,
)
JESSE TEVERBAUGH,
)
and ANGELA CHANEY,
)
)
Defendants.
)

Case No. 13-cv-641-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claim arises from the
circumstances of his August 2012 release from prison on mandatory supervised release (“MSR”)
after serving 50% of his sentence, and his subsequent arrest for another offense, which led to the
revocation of his MSR.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.

Under § 1915A, the Court is required to promptly screen prisoner

complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to
dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim
upon which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).

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The Complaint
Plaintiff was originally sentenced to two years imprisonment for theft (Doc. 1, p. 9).
Plaintiff had a relationship with Ms. Alysa Sherwood, and while he was incarcerated, she visited
him on more than one occasion (Doc. 1, p.5). On August 15, 2012, Plaintiff was released from
prison after serving 50% of his sentence, and placed on mandatory supervised release (“MSR”).
Id. Upon his release, Plaintiff went to live in the residence of Ms. Sherwood (Doc. 1, p. 5).
Plaintiff’s housing arrangement was approved by Defendant Teverbaugh, a parole officer. Id.
However, at the time Ms. Sherwood was visiting Plaintiff in prison and when he was
approved to reside in her home, she “allegedly” had an order of protection against Plaintiff. Id.
Consequently, on September 26, 2012, Plaintiff was arrested for violating the order of protection
(“OP”) and for domestic battery. Id. The domestic battery charge was later dismissed, but the
OP violation was not. Id.
Plaintiff’s MSR was revoked and he has been imprisoned since his arrest on September
26, 2012 (Doc. 1, p. 6). Plaintiff appeared before the Illinois Prisoner Review Board on May 14,
2013, and he was to have another conference with the Board in June 2013 regarding the
revocation of his MSR (Doc. 1, p. 10). The complaint does not indicate whether a determination
has been made on the remaining duration of Plaintiff’s incarceration.
Plaintiff asserts that Defendant Teverbaugh and the Defendant Field Service Department
Supervisor of the Illinois Department of Corrections (“IDOC”) did not properly investigate his
placement with Ms. Sherwood (See Doc. 1, pp. 5–6). Plaintiff claims that he was only allowed
to reside with Ms. Sherwood because she used Plaintiff’s last name in a phone conversation with
the IDOC Field Service Dept. and falsely stated that she was Plaintiff’s wife (Doc. 1, pp. 5, 10).
However, according to Plaintiff, his “master file” indicates that Christian Morgan is his wife, and

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the IDOC Field Service Dept. did not require Ms. Sherwood to show any form of identification
as verification (Doc. 1, p. 10). Plaintiff essentially argues that if the IDOC Field Service Dept.
had properly investigated his housing arrangement, they would have discovered the existence of
the OP, and Plaintiff would not have wound up in a situation where he could violate the OP or
his MSR conditions. Plaintiff claims that the failure to properly investigate was “a clear lasp
[sic] in judgment on the IDOC . . . which caused my unlawful arrest and incarceration” (Doc. 1,
pp. 5, 10). In this action, he seeks compensation for this “false arrest” and the violation of his
constitutional rights (Doc. 1, p. 7).
Plaintiff further claims that he has been subjected to double jeopardy because he had
previously been arrested on August 28, 2012 by O’Fallon Police in a Wal-Mart parking lot for
violation of the Order of Protection (Doc. 1, pp. 5–6). It appears Plaintiff was not taken into
custody at the time of that first arrest (See Doc. 1). He was arraigned on the August 28th charge
on October 4, 2012, after he was taken into custody on September 26, 2012 for violating the OP
(Doc. 1, p. 6). Plaintiff also claims that after his arrest on September 26th, he spent about two
and a half months in the St. Clair County Jail, where he contracted scabies (Doc. 1, p. 7). He
claims that Jail officials refused to treat him for that condition (Doc. 1, p. 7).
Merits Review Pursuant to 28 U.S.C. § 1915A
For the convenience of the Court, Plaintiff’s claims shall be divided into three counts as
follows. 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.
Count 1 – Improper MSR placement resulting in Plaintiff’s alleged violation of an Order
of Protection and of his MSR conditions;
Count 2 – Double jeopardy for two arrests on the same Order of Protection violation; and

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Count 3 – Deliberate indifference to Plaintiff’s medical need for treatment of scabies.
After fully considering the allegations in Plaintiff’s complaint, the Court concludes that
he has failed to articulate a colorable federal cause of action against any of the named
Defendants on any of the above counts. The complaint shall therefore be dismissed. However,
Plaintiff shall be given leave to file an amended complaint as to Count 3, as outlined below, if he
wishes to pursue that claim.
Dismissal of Count 1
Plaintiff’s account of the events leading up to his MSR placement indicates that the
Defendants who approved that placement may indeed have erred in their decision to house him
with Ms. Sherwood. In essence, Plaintiff argues that they had a duty to place him in a residence
where he would not be in violation of the law or his MSR conditions because of the
circumstances of another household member. Whether or not the Court accepts this premise, the
complaint does not suggest that any Defendant intentionally set Plaintiff up for arrest. At worst,
the failure of parole officials to discover the existence of the Order of Protection, or to realize
that Plaintiff was not in fact married to Ms. Sherwood, would indicate negligence in their
execution of their responsibilities in Plaintiff’s case. Indeed, Plaintiff himself describes their
failure to conduct an adequate investigation as “negligence” in the grievance he filed over this
matter (Doc. 1, p. 10).
The law is clear that negligent acts do not violate the Constitution, thus a defendant
cannot be held liable under § 1983 for negligence. “[T]he Due Process Clause is simply not
implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or
property.” Daniels v. Williams, 474 U.S. 327, 328 (1986); see also Zarnes v. Rhodes, 64 F.3d
285, 290 (7th Cir. 1995). The complaint therefore fails to state a constitutional claim upon

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which relief may be granted against Defendant Teverbaugh or the IDOC Field Services
Department Supervisor.
Plaintiff makes no specific allegations against Defendant Chaney in the body of his
complaint, but notes that she is a Parole Agent Supervisor (Doc. 1, p. 2).

If Plaintiff is

attempting to hold Defendant Chaney liable as a supervisor for an alleged constitutional violation
committed by Defendant Teverbaugh, he cannot do so. Defendant Teverbaugh’s actions did not
violate the Constitution in the first place., and the doctrine of respondeat superior is not
applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(citations omitted).
Accordingly, Count 1 shall be dismissed with prejudice.
Dismissal of Count 2
Plaintiff implicates an unnamed O’Fallon Police Officer and St. Clair County/20th
Circuit (the Illinois state circuit court) in his claim that he has been improperly subjected to two
prosecutions for the same offense (the OP violations). He insists that he is innocent of any
violation of the order of protection, and should not be subjected to any further incarceration.
Based on the facts presented, Plaintiff’s claim for monetary damages based on the alleged
improper arrests and imprisonment is not cognizable in this civil rights action at this time.
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
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already been invalidated. But if the district court determines that the plaintiff’s
action, even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be allowed to proceed,
in the absence of some other bar to the suit.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (emphasis in original). “We do not engraft an
exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a
prisoner who has fully exhausted available state remedies has no cause of action under § 1983
unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by
the grant of a writ of habeas corpus.” Id. at 489.
It is not clear from Plaintiff’s complaint whether either of his arrests (on August 28,
2012, and on September 26, 2012) has resulted in a new conviction. One or both incidents did
cause Plaintiff to be taken back into custody following his initial release on MSR, but it is also
not clear whether there has been a final determination on the revocation of Plaintiff’s parole.
Either way, Plaintiff must pursue the avenues open to him in state court or with the Prisoner
Review Board before seeking redress in this Court. His claim for damages rests on the premise
that his arrest and imprisonment for the OP violation was improper and unconstitutional. Under
Heck, he cannot bring a civil rights claim unless the arrest, conviction, or parole revocation has
first been invalidated. No such invalidation has occurred. Thus, Count 2 shall be dismissed
without prejudice.

Only if Plaintiff succeeds in obtaining a reversal, expungement, or

invalidation of his arrest/conviction on the OP violation or of the parole (MSR) revocation,
might he have grounds to bring a civil rights claim for damages.
Plaintiff shall note that he may challenge his conviction or incarceration in a federal
habeas corpus action pursuant to 28 U.S.C. § 2254, but only after he has presented all of his
claims to the Illinois courts. Ordinarily, this will involve raising every issue at trial or in a postconviction motion, and appealing any adverse decisions to the Illinois Appellate Court and the
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Illinois Supreme Court.
Dismissal of Count 3
In his prayer for relief, Plaintiff briefly mentions the refusal of St. Clair County Jail staff
to provide him with any treatment for scabies during his detention in that facility. However, he
does not include any medical providers or individuals from whom he requested treatment among
the Defendants in this action. Nor does he indicate that any of the named Defendants had any
responsibility to treat his medical needs. Thus, the complaint fails to state a claim for deliberate
indifference to a medical condition, and Count 3 shall also be dismissed without prejudice.
If Plaintiff wishes to pursue the claim in Count 3, he shall be given one opportunity to
submit an amended complaint on this claim only to present any factual allegations that may exist
to support the claim that jail officials were deliberately indifferent to his scabies. If the amended
complaint still fails to state a claim, or if Plaintiff does not submit an amended complaint, the
entire case shall be dismissed with prejudice, and the dismissal shall count as a strike pursuant to
§ 1915(g). Nothing in this order shall be construed as an opinion on the potential merits of such
a claim; the amended complaint shall be subject to review pursuant to 28 U.S.C. § 1915A.
Pending Motions
Plaintiff’s motions for recruitment of counsel (Doc. 3) and motion for service of process
at government expense (Doc. 4) shall be held in abeyance pending the receipt and review of an
amended complaint.
Disposition
The Complaint (Doc. 1) is DISMISSED. COUNT 1 is DISMISSED with prejudice for
failure to state a claim upon which relief may be granted. COUNTS 2 and 3 are DISMISSED
without prejudice for failure to state a claim upon which relief may be granted. Defendants ST.

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CLAIR COUNTY/20th CIRCUIT, ILLINOIS DEPARTMENT OF CORRECTIONS –
FIELD SERVICES DEPARTMENT SUPERVISOR, O’FALLON POLICE OFFICER,
TEVERBAUGH, and CHANEY are DISMISSED with prejudice from this action.
IT IS FURTHER ORDERED that, should he wish to proceed with Count 3 in this case,
Plaintiff shall file his First Amended Complaint, stating any facts which may exist to support the
deliberate indifference claim in Count 3 and naming the individual Defendant(s) directly
responsible for the alleged constitutional deprivations, within 35 days of the entry of this order
(on or before September 11, 2013). An amended complaint supersedes and replaces the original
complaint, rendering the original complaint void. See Flannery v. Recording Indus. Ass’n of
Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to
the original complaint. Thus, the First Amended Complaint must stand on its own, without
reference to any other pleading. Should the First Amended Complaint not conform to these
requirements, it shall be stricken. Plaintiff must also re-file any exhibits he wishes the Court to
consider along with the First Amended Complaint. Failure to file an amended complaint shall
result in the dismissal of this action with prejudice. Such dismissal shall count as one of
Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
No service shall be ordered on any Defendant until after the Court completes its § 1915A
review of the First Amended Complaint.
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
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).

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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: August 7, 2013
s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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