Ramirez v. Nalley et al

Filing 1

MEMORANDUM AND ORDER severing case no. 13-535-JPG. Signed by Judge J. Phil Gilbert on 7/10/2013. (tjk)

Case 3:13-cv-00535-JPG Document 9 Filed 07/10/13 Page 1 of 11 Page ID #24

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CESAR RAMIREZ, # R15877,
Plaintiff,
vs.
ZACHARY ROECHEMAN,
ZINDY GEE,
SLAVADOR ANTHONY GODINEZ,
C/O NALLEY, and
UNKNOWN PARTIES,
Defendants.

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Case No. 13-cv-00535-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Cesar Ramirez, serving a ten year sentence for Home Invasion and a consecutive
six year term for predatory sexual assault, is currently incarcerated at Big Muddy Correctional
Center (“Big Muddy”). Plaintiff has brought this pro se civil rights action pursuant to 42 U.S.C.
§ 1983. In accordance with 28 U.S.C. § 1915A, the Court must conduct a prompt threshold
review of the complaint.
1. The Standard of Review
In relevant part, 28 U.S.C. § 1915A 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). 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
complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
2. The Complaint
The named defendants are Warden Zachary Roecheman, Food Services Supervisor Zindy
Gee, Director of the Illinois Department of Corrections Salvador Anthony Godinez, and
Correctional Officer (“C/O”) Nalley; there are also five unidentified defendants. Plaintiff’s four
principal contentions are: (1) he should have been released from prison on June 28, 2011, after
he served 85% of his sentence, but Defendants Roecheman, Gee and Godinez refused to serve
Plaintiff’s release papers, improperly enforced a false parole violation and revoked good conduct

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credits to justify keeping him in custody; 1 (2) “the defendants,” through lieutenants, C/O’s and
Dietary staff, have harassed and punished Plaintiff by refusing to release him, revoking good
conduct credits, writing false disciplinary tickets, calling him “child raper,” and repeatedly
“shaking down” his cell, destroying and taking his property; (3) “the defendants” and a corrupt
Adjustment Committee, have denied Plaintiff due process, falsely convicting him and punishing
him with six months in segregation; and (4) on May 25, 2013, Defendant C/O Nalley and the
five unidentified defendants strip searched Plaintiff in a demeaning manner, beat him and then
refused to get him medical treatment. 2
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into the four counts summarized below. 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: Defendants Roecheman, Gee and Godinez failed to release
Plaintiff Ramirez from prison on June 28, 2011, when they
improperly enforced a false parole violation and revoked good
conduct credits, in violation of the Eighth Amendment and
Plaintiff’s due process rights under the Fourteenth Amendment;
Count 2: All defendants, by and through other prison staff, harassed and
punished Plaintiff by refusing to release him, revoking his good
conduct credits, writing false disciplinary tickets, calling him
“child raper,” repeatedly “shaking down” his cell, destroying and
taking his property, in violation of the Eighth Amendment;
Count 3: All defendants, with the approval of Defendant Roecheman,
convicted Plaintiff of a false disciplinary charge in a “fixed”
hearing, in violation of his right to due process under the
Fourteenth Amendment; and
1

The complaint references a “false parole violation,” the absence of “IDOC warrants of MSR”
and a “PRB hearings,” and the revocation of 70 days of good conduct credits. The specifics and
interplay between these things is not set forth in the complaint, but the Court has attempted to
summarize Plaintiff’s argument, for better or for worse.
2
The strip search and beating might have been separate incidents on different days.
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Count 4: On May 25, 2013, Defendant C/O Nalley and the five unidentified
defendants strip searched Plaintiff in a demeaning manner, beat
him and then refused to get him medical treatment, in violation of
the Eighth Amendment.
Counts 1 and 3

3. Discussion

At the heart of Count 1 is the calculation of Plaintiff’s sentence and “adjusted projected
out date” (see Doc. 1, p. 9 (setting the “adjusted projected out date” as June 28, 2011, and the
“mandatory out date” as May 22, 2017). Similarly, Count 3 revolves around the propriety of the
disciplinary report issued against Plaintiff and the hearing that resulted in his commitment to
segregation. Counts 1 and 3 are intertwined, in that Plaintiff’s proper release date was impacted
by the disciplinary conviction.
“[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier release, even though such a claim
may come within the literal terms of [Section] 1983.” Heck v. Humphrey, 512 U.S. 477, 481
(1994). Although a plaintiff may challenge his continued confinement in a habeas corpus action
pursuant to 28 U.S.C. § 2254, he must first present all of his claims to the Illinois courts. The
same principles apply relative to a disciplinary conviction. See Nelson v. Campbell, 541 U.S.
637, 646-647 (2004). See also Heck, 512 U.S. at 487; Edwards v. Balisok, 520 U.S. 641, 648
(1997). A Section 1983 action cannot be brought “unless and until the inmate obtains favorable
termination of a state, or federal habeas, challenge to his conviction or sentence.” Nelson, 541
U.S. 637, 646-647. There is no suggestion that Plaintiff has satisfied the “favorable termination”
requirement—not even administratively relative to the disciplinary conviction. Therefore, Counts
1 and 3 are premature and will be dismissed without prejudice and without further discussion of
the adequacy of those claims.

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Count 2
Count 2 pertains to a variety of incidents that could be characterized as harassment and/or
punishment: the refusal to release Plaintiff from custody; the revocation of Plaintiff’s good
conduct credits; false disciplinary tickets; calling Plaintiff “child raper”; repeatedly “shaking
down” Plaintiff’s cell; and the destruction and taking of Plaintiff’s property. Count 2 is leveled
against all defendants.
“[C]alculated harassment unrelated to [institutional] needs” can violate the Eighth
Amendment. See Scher v. Engelke, 943 F.2d 921 (8th Cir. 1991) (repeated and disruptive
searches for retaliatory purpose violated Eighth Amendment). “[I]f a restriction or condition is
not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly
may infer that the purpose of the governmental action is punishment ….” Bell v. Wolfish, 441
U.S. 520, 539 (1979). Therefore, there is a legal foundation for Count 2. However, liability
under Section 1983 requires a defendant’s personal involvement in the alleged constitutional
violation. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). The defendant must
have caused or participated in the violation. Pepper v. Village of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005). Thus, the doctrine of respondeat superior is not applicable to Section 1983
actions. 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)).
The allegations underlying Counts 1 and 3, and the documents attached to the complaint,
indicate that all defendants were not involved in all of the aforementioned incidents. Moreover,
the complaint specifically alleges that “the defendants” acted “thogh Lts and c/o’s, and Dietary
staff” [sic] (Doc. 1, p. 5). Thus, as pleaded, Count 2 does not allege the requisite personal
involvement. Because there is some inconsistency that leaves open the possibility that certain

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defendants did personally participate in at least some of the incidents of harassment, dismissal
without prejudice is appropriate, to allow Plaintiff to amend the complaint to identify which
defendants did what.
With all that said, calling Plaintiff “child raper”—does not amount to a constitutional
violation. Although such name-calling may have evidentiary significance, standing alone, verbal
harassment does not constitute cruel and unusual punishment. DeWalt v. Carter, 224 F.3d 607,
612 (7th Cir. 2000). Therefore, that one aspect of Count 2 shall be dismissed with prejudice.
Regarding the claim that the defendants destroyed or stole Plaintiff’s property, although
not pleaded as a claim under the Due Process Clause of the Fourteenth Amendment, the Court
observes that any such claim would fail. The Illinois Court of Claims provides Plaintiff with an
adequate remedy to redress his property loss; he may also file an action in the state circuit court
for the tort of conversion. See Cirrincione v. Johnson, 703 N.E.2d 67, 70 (Ill.1998).
Count 4
Count 4 states a colorable Eighth Amendment claim against C/O Nalley and the five
unidentified defendants for the strip search, beating and failure to secure medical treatment for
Plaintiff. Therefore, Count 4 can proceed.
Severance
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that
unrelated claims against different defendants belong in separate lawsuits, “not only to prevent the
sort of morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners
pay the required filing fees” under the Prison Litigation Reform Act. George, 507 F.3d at 607,
(citing 28 U.S.C. § 1915(b), (g)). Plaintiff apparently perceives an overarching intent to harass
and/or punish Plaintiff that connects Counts 1-4.

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The allegations pertaining to Plaintiff’s

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sentence and related disciplinary matters, Counts 1 and 3, and even the allegations of harassment
in Count 2 that tie into the disciplinary action against Plaintiff, can be maintained in one lawsuit.
Count 4, however, is based on a separate incident, involving different defendants and distinct
legal claims.
Consistent with the George decision and Federal Rule of Civil Procedure 21, the Court
shall sever Count 4 of Plaintiff’s complaint, and shall open a new case with a newly-assigned
case number for that claim. However, Plaintiff shall have an opportunity to voluntarily dismiss
the newly severed case if he does not wish to proceed on those claims or incur the additional
filing fee. Because Counts 1 and 3 are being dismissed without prejudice, Count 2 is the only
claim that shall proceed in the present case, Case No. 13-cv-00535-JPG.
4. Motion for Injunctive Relief
By motion filed June 18, 2013, Plaintiff Ramirez seeks an injunction preventing the
defendants from “doing harmful and unconstitutional and harassment things” (Doc. 5, p. 1). The
Court construes the motion as seeking both a temporary restraining order (“TRO”) and a
preliminary injunction.
Plaintiff asserts that on June 12, 2013, Defendant C/O Nalley and “co-conspirators”
fabricated a disciplinary ticket against Plaintiff in retaliation for Plaintiff filing the present civil
rights action. Plaintiff further states that he fears for his life. Plaintiff prays that the Court order
the defendants to stop harassing him, and order Plaintiff’s transfer to Jack Clark’s Family House
Drug Program, or to another prison.
Because Plaintiff raises the specter of life-threatening harm, the court will put aside for a
moment the fact that Counts 2 and 4 are being severed into separate cases, and that theses new
allegations of retaliatory harassment could form the basis of a third action (if available

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administrative remedies were exhausted). Nevertheless, Plaintiff’s motion must be denied.
A TRO may issue without notice only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B) the movant's
attorney certifies in writing any efforts made to give notice and the reasons
why it should not be required.
FED. R. CIV. P. 65(b)(1).
As to the request for a preliminary injunction, the United States Supreme Court has
emphasized that a “preliminary injunction is an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing, carries the burden of persuasion.”
Christian Legal Soc. ‘y v. Walker, 453 F.3d 853, 870 (7th Cir. 2006) (quoting Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original)). In considering whether to grant
injunctive relief, a district court must weigh the relative strengths and weaknesses of a plaintiff's
claims in light of a five-part test that has long been part of the Seventh Circuit’s jurisprudence.
Specifically, a plaintiff must establish: (1) that there is a reasonable or substantial
likelihood that he would succeed on the merits; (2) that there is no adequate remedy at law; (3)
that absent an injunction, he will suffer irreparable harm; (4) that the irreparable harm suffered
by plaintiff in the absence of the injunctive relief will outweigh the irreparable harm that
defendants will endure were the injunction granted; and (5) that the public interest would be
served by an injunction. Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking, 176 F.3d
1004, 1011 (7th Cir. 1999); accord Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010); Pro’s
Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865, 872–73 (7th Cir. 2009).
Relative to securing a TRO, the motion is not supported by an affidavit as required, and
the motion raises issues not set forth in the complaint. Regardless, Plaintiff’s allegations do not

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set forth specific facts demonstrating the likelihood of immediate and irreparable harm before
Defendants can be heard.

Plaintiff’s bald assertion that he fears for his life is insufficient.

There is no explanation of how Plaintiff gets from the issuance of a false disciplinary report to
life-threatening harm. Insofar as he may have received a false disciplinary report (and may
receive more), that does not cause irreparable injury requiring the sort of extraordinary action
Plaintiff proposes. Therefore, a TRO is not warranted.
Although the Court would typically refer the motion for preliminary injunction to a
magistrate judge for further consideration, because of the precarious procedural posture of this
case, the motion will be denied without prejudice. Once Plaintiff files a viable complaint curing
what ails Count 2, the case will be referred to a magistrate judge and Plaintiff will be free to seek
injunctive relief as necessary. Similarly, once Plaintiff confirms that he desires to proceed with a
second action prosecuting Count 4 (and that he is willing to pay a second filing fee), he will be
free to seek injunctive relief as necessary in that case.
5. Disposition
IT IS THEREFORE ORDERED that, for the reasons stated, COUNT 1 and COUNT
3 are DISMISSED without prejudice because they were prematurely filed.
IT IS FURTHER ORDERED that the aspects of COUNT 2 pertaining to Plaintiff
being called a “child raper” are DISMISSED with prejudice for failure to state a claim upon
which relief can be granted; all other aspects of COUNT 2 are DISMISSED without prejudice
and with leave to amend. On or before August 9, 2013, Plaintiff shall file an amended complaint
re-pleading Count 2. Any amended complaint will be subject to preliminary review pursuant to

28 U.S.C. § 1915A. Failure to file a viable amended complaint could result in the dismissal of
this action pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS FURTHER ORDERED that Plaintiff’s Eighth Amendment claims in COUNT 4,
which are unrelated to the claims in Count 2, are SEVERED into a new case. That new case
shall be against DEFENDANTS C/O NALLEY and UNKNOWN PARTIES for strip
searching Plaintiff in a demeaning manner, beating him and then refusing to get him medical
treatment, in violation of the Eighth Amendment.
The new case SHALL BE ASSIGNED to the undersigned District Judge for further
proceedings. In the new case, the Clerk is DIRECTED to file the following documents:
(1)
(2)
(3)
(4)
(5)

This Memorandum and Order;
The Original Complaint (Doc. 1);
Plaintiff’s motion to proceed in forma pauperis (Doc. 2);
The Court’s Order granting pauper status (Doc. 6); and
Plaintiff’s motion for injunctive relief (Doc. 5)

Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with the newlyopened case, he must notify the Court in writing on or before August 9, 2013. Unless Plaintiff
notifies the Court that he does not wish to pursue the newly opened action, he will be
responsible for an additional $350.00 filing fee in the new case. Service shall not be ordered
on Defendant C/O NALLEY (the only defendant identified) until after the deadline for
Plaintiff’s response. Service shall not be made upon the UNKNOWN PARTIES until such time
as Plaintiff has identified them by name in a properly filed amended complaint. Plaintiff is
ADVISED that it is his responsibility to provide the Court with the names and service addresses
for these individuals.
Plaintiff’s is again ADVISED that the obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether he elects not to file an amended complaint, and regardless of whether any

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amended complaint is dismissed upon preliminary review. See 28 U.S.C. § 1915(b)(1); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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: July 10, 2013
s/ J. PHIL GILBERT
United States District Judge

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