Shatner v. New et al

Filing 1

MEMORANDUM AND ORDER severing case no. 13-599-JPG. Signed by Judge J. Phil Gilbert on 7/17/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRIN W. SHATNER, #B-42950,
Plaintiff,
vs.
MIKE ATCHISON, et al.,
Defendants.

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Case No. 13-cv-00599-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, who is currently incarcerated at Pontiac Correctional Center (“Pontiac”), brings
this pro se civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff is serving a life
sentence for murder, armed robbery, and arson. His claims arose during his incarceration in
Menard Correctional Center (“Menard”).

In the complaint, Plaintiff raises twelve separate

claims against seventeen defendants. Each of Plaintiff‟s claims will be discussed in detail below.
Plaintiff seeks compensatory and punitive damages, as well as injunctive relief.
1.

Standard of Review
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of

the complaint. The Court must dismiss a complaint, or portion thereof, if the prisoner has raised
claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may
be granted, or that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b). 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).
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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
Based on the allegations in the complaint, the Court finds it appropriate to exercise its

authority under Section 1915A to dismiss those causes of action that fail to state a claim for
relief before allowing Plaintiff to proceed. See House v. Belford, 956 F.2d 711, 718-19 (7th Cir.
1992). In addition, the Court finds it appropriate to break the claims in Plaintiff‟s pro se
complaint into numbered claims, as shown below. The below-listed claims correspond exactly
with the twelve claims set forth in Plaintiff‟s complaint. However, because each of Plaintiff‟s
twelve claims actually includes multiple causes of action, the Court finds it necessary to
designate each separate cause of action as a “count” in the below discussion. 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 claims does not constitute an opinion as
to their merit.
CLAIM 1:

Defendants McDonnounh, Dunn, Cowan, Dilday, Atchison,
Harrington, and Godinez confiscated Plaintiff’s personal
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property on August 14, 2012, in retaliation and in violation of
the First, Fourth, and Fourteenth Amendments;
CLAIM 2:

Defendants Atchison and Godinez confiscated Plaintiff’s
personal typewriter on June 5, 2012, in violation of the First
and Fourteenth Amendments;

CLAIM 3:

Defendants Fedderke and Nagel confiscated Plaintiff’s deck of
tarot cards on September 15, 2012, in retaliation and in
violation of the First, Fourth, and Fourteenth Amendments;

CLAIM 4:

Defendants New, Severs, Richard, Harrington, Allen, Godinez,
and Veath wrongfully issued Plaintiff disciplinary tickets for
possession of sewing needles on August 27, 2012, in retaliation
and in violation of the Fourth, Eighth, and Fourteenth
Amendments;

CLAIM 5:

Defendants Spiller, Atchison, Veath, and Harrington took
Plaintiff’s legal documents on September 20, 2012, in violation
of the Fourth, Sixth, Eighth, and Fourteenth Amendments;

CLAIM 6:

Defendants Atchison, Harrington, Spiller, New, Severs,
Godinez, Veath, and Allen used the prison disciplinary system
to harm Plaintiff’s health, in violation of the First, Fourth,
Eighth, and Fourteenth Amendments;

CLAIM 7:

Defendants McDonnounh, Anderson, Dunn, Cowan, Severs,
and Dilday confiscated Plaintiff’s radio on August 28, 2012, in
retaliation and in violation of the First, Fourth, and Fourteenth
Amendments;

CLAIM 8:

Defendants Severs, Nagel, Atchison, Godinez, and Allen
intercepted Plaintiff’s painting from the mail in retaliation;

CLAIM 9:

Defendants Atchison, Harrington, Nwaobasi, and Veath
delayed treatment of Plaintiff’s ingrown toenails for more than
a year, in violation of the Eighth and Fourteenth Amendments;

CLAIM 10: Defendants Dunn, McDonnounh, Anderson, Atchison, and
Harrington used excessive force against Plaintiff on August 28,
2012, in retaliation against Plaintiff and in violation of the
Eighth Amendment;
CLAIM 11: Defendants Atchison and Godinez confiscated Plaintiff’s
guitar, in violation of the First and Fourteenth Amendments;
and
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CLAIM 12: Defendants Atchison and Harrington intercepted Plaintiff’s
legal mail, in violation of his right to access the courts.
3.

Discussion

CLAIM 1
Plaintiff alleges that Defendants McDonnounh, Dunn, Cowan, Dilday, and Godinez
confiscated personal property items during a cell search on August 14, 2012 (Doc. 1, p. 8). They
acted on orders issued by Defendants Atchison and Harrington. Plaintiff used these items to
exercise his religion. The confiscated items include, among other things, Plaintiff‟s religious
tarot deck, $3,000 in art supplies, chess pieces, and calculators. Plaintiff alleges that these items
were taken in retaliation for his religious exercise and in violation of his rights under the First,
Fourth, and Fourteenth Amendments.
Accepting the allegations as true, the Court finds that Plaintiff has stated claims against
Defendants McDonnounh, Dunn, Cowan, Dilday, Godinez, Atchison, and Harrington under the
First Amendment Free Exercise Clause (Count 1) and the First Amendment Free Speech Clause
(Count 2). Plaintiff has also stated a colorable retaliation claim against Defendants (Count 3).
However, Plaintiff has failed to state a claim for relief under the Fourth Amendment
(Count 4). Plaintiff seems to suggest that Defendants violated his Fourth Amendment rights by
entering and searching his cell. The Supreme Court has held that the Fourth Amendment does
not apply to searches of a prison cell because a prisoner has no reasonable expectation of
privacy. Hudson v. Palmer, 468 U.S. 517, 526 (1984). Accordingly, Count 4 shall be dismissed
without prejudice.
Plaintiff has not articulated a claim under the Fourteenth Amendment (Count 5), to be
free from deprivations of his property by state actors without due process of law. To state a

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claim under the Fourteenth Amendment Due Process Clause, Plaintiff must establish a
deprivation of liberty or property without due process of law; if the state provides an adequate
remedy, Plaintiff has no civil rights claim. Hudson, 468 U.S. at 530-36 (availability of damages
remedy in state claims court is an adequate, post-deprivation remedy). The Seventh Circuit has
found that Illinois provides an adequate post-deprivation remedy in an action for damages in the
Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v.
McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8 (1995). Because a
state court remedy is available to Plaintiff, his constitutional claim for deprivation of his property
fails. Count 5 shall be dismissed without prejudice, so that Plaintiff may bring the claim in state
court should he wish to pursue this claim.
Likewise, Plaintiff‟s potential claim under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) (Count 6), 42 U.S.C. § 2000cc et seq., fails. Plaintiff‟s complaint
does not mention a RLUIPA claim. Because Plaintiff is proceeding in this matter pro se,
however, the Court construes the complaint liberally to include this statutory claim. See Grayson
v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012) (citing Ortiz v. Downey, 561 F.3d 664, 670 (7th
Cir. 2009)). To state a claim under RLUIPA, Plaintiff must allege facts which tend to show that
he seeks to exercise his religious beliefs and that the challenged practice substantially burdens
his exercise of religion.

Kroger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008); 42 U.S.C.

§ 2000cc-2(b). Here, RLUIPA is of no use to Plaintiff. Plaintiff seeks monetary damages
against Defendants in their official and individual capacities. The former claim is barred by the
state‟s sovereign immunity. See Grayson, 666 F.3d at 451 (citing Sossamon v. Texas, -- U.S. --,
131 S. Ct. 1651, 1658-61 (2011); Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011)). The
latter claim also fails because RLUIPA “does not create a cause of action against state employees

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in their personal capacity.” Grayson, 666 F.3d at 451 (citing Nelson v. Miller, 570 F.3d 868,
886-89 (7th Cir. 2009)). While Plaintiff also seeks injunctive relief, which is authorized under
RLUIPA, the claim shall be denied as moot. When prison inmates challenge prison practices,
their equitable claims are moot once they move to another prison that does not apply those
practices. Stewart, 5 F.3d at 1037-38; see Fuller v. Dillon, 236 F.3d 876, 883 (7th Cir. 2001);
see also Henderson v. Sheahan, 196 F.3d 839, 849 n. 3 (finding plaintiff prisoner‟s equitable
relief claims challenging prison policies moot after he was transferred). Plaintiff‟s RLUIPA
claim shall be denied as moot because he is no longer incarcerated at Menard. Accordingly,
Count 6 shall be dismissed without prejudice.
In summary, Counts 4, 5, and 6 shall be dismissed without prejudice, but Counts 1, 2, and
3 against Defendants McDonnounh, Dunn, Cowan, Dilday, Godinez, Atchison, and Harrington
state a colorable claim; therefore, Claim 1 shall proceed.
CLAIM 2
Plaintiff alleges that on June 5, 2012, Defendant Atchison wrongfully confiscated
Plaintiff‟s typewriter pursuant to an order of Defendant Godinez (Doc. 1, p. 9). Plaintiff used the
typewriter to write a religious book and religious magazine articles. Plaintiff alleges that the
confiscation of his property violated his right to access the media and the courts under the First
and Fourteenth Amendments.
Plaintiff has failed to state a colorable media access claim under the First Amendment
(Count 7). Plaintiff has not explained this claim, and his vague reference to this cause of action
is so abstract and conclusory that it fails to pass muster even at this early stage in litigation. See
Twombly, 590 U.S. at 570. Accordingly, Plaintiff‟s First Amendment media access claim shall
be dismissed without prejudice.

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Plaintiff‟s potential claim under the First Amendment Free Exercise Clause (Count 8)
also fails. Plaintiff has not alleged that his typewriter is a religious item, that its confiscation
interfered with the exercise of his religion, or that he was denied access to other typewriters at
Menard. Accordingly, Count 8 against Defendants Atchison and Godinez shall be dismissed
without prejudice for failure to state a claim upon which relief can be granted.
Plaintiff has also failed to state a claim against Defendants Atchison and Godinez for the
denial of his right to access the courts (Count 9). 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)).
Plaintiff‟s complaint contains no such assertion.
Second, Plaintiff 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 (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 has failed to allege, or even suggest, that the confiscation of
his typewriter resulted in substantial prejudice to specific litigation. Accordingly, his access to

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courts claim against Defendants Atchison and Godinez fails. Count 9 shall be dismissed without
prejudice.
Likewise, Plaintiff‟s Fourteenth Amendment claim (Count 10) against Defendants
Atchison and Godinez fails. Plaintiff brings this claim as one for a deprivation of personal
property, rather than a claim for religious interference. As such, Plaintiff must establish a
deprivation of liberty or property without due process of law; if the state provides an adequate
remedy, Plaintiff has no civil rights claim. Hudson, 468 U.S. at 530-36. Because a state court
remedy is available to Plaintiff, his constitutional claim for deprivation of his property fails.
Count 10 shall be dismissed without prejudice, so that Plaintiff may bring the claim in state court
should he wish to pursue this claim.
In summary, Counts 7, 8, 9, and 10 against Defendants Atchison and Godinez shall be
dismissed without prejudice. Accordingly, Claim 2 must be dismissed in its entirety.
CLAIM 3
Plaintiff alleges that on September 15, 2012, Defendants Fedderke and Nagel confiscated
his personal property items in the segregation property room (Doc. 1, p. 9). Plaintiff uses some
of these items to exercise his religion. The confiscated items include, but are not limited to, his
religious tarot deck, religious books, artwork, and cassette tapes. Plaintiff claims that these items
were taken in retaliation for his religious exercise and in violation of his right to media access
under the First, Fourth, and Fourteenth Amendments.
The Court finds that Plaintiff has stated claims against Defendants Fedderke and Nagel
under the First Amendment Free Exercise Clause (Count 11) and for retaliation (Count 12).
However, Plaintiff has failed to state a claim for relief under the Fourth Amendment
(Count 13), which does not apply to searches of a prison cell. See Hudson, 468 U.S. at 526.

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Likewise, Plaintiff has failed to state a claim for relief under the Fourteenth Amendment (Count
14). Because a state court remedy is available to Plaintiff, his constitutional claim for deprivation
of his property fails. Plaintiff‟s potential RLUIPA claim (Count 15) shall be denied as moot
because Plaintiff is no longer incarcerated at Menard. Finally, Plaintiff‟s media access claim
(Count 16) fails for the same reasons set forth in Claim 2.
Counts 13, 14, 15, and 16 shall be dismissed without prejudice for failure to state a claim
upon which relief can be granted, but Count 11 and 12 against Defendants Fedderke and Nagel
state a colorable claim; therefore, Claim 3 shall proceed.
CLAIM 4
Plaintiff alleges that on August 27, 2012, Defendants New, Severs, Richard, Harrington,
Allen, and Godinez wrongfully issued Plaintiff a disciplinary ticket for possession of sewing
needles they found in his cell during a search earlier that month (Doc. 1, p. 10). Defendants
conducted the search in response to a grievance Plaintiff filed. At the time of the search,
Plaintiff alleges that he was in possession of four needles, which he legally purchased from the
commissary. However, Defendants issued Plaintiff a disciplinary ticket for sewing needles that
belonged to his cellmate. Defendant Veath falsely found Plaintiff guilty of a rule violation and
sentenced Plaintiff to six months in segregation (now served), C-grade, no shop, no phones, and
no contact visits. Accepting Plaintiff‟s allegations as true, the Court finds that he has stated a
claim against Defendants New, Severs, Richard, Harrington, Allen, and Godinez, for issuing
Plaintiff a disciplinary ticket in retaliation for Plaintiff‟s grievance (Count 17).
However, Plaintiff‟s Fourteenth Amendment claim (Count 18) based on the issuance of a
false disciplinary ticket shall be dismissed without prejudice for failure to state a claim upon
which relief can be granted at this time. Allegations of false disciplinary reports do not state a

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claim where due process is afforded. Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984).
The Seventh Circuit Court of Appeals has reasoned that the due process safeguards associated
with prison disciplinary proceedings are sufficient to guard against potential abuses. A hearing
before a presumably impartial Adjustment Committee terminates an officer‟s possible liability
for the filing of an allegedly false disciplinary report. Hawkins v. O'Leary, 729 F. Supp. 600,
602 (N.D. Ill. 1990), relying on Hanrahan, 747 F.2d at 1141. The procedural requirements of a
disciplinary hearing protect prisoners from arbitrary actions of prison officials. McKinney v.
Meese, 831 F.2d 728, 733 (7th Cir. 1987).
In the instant complaint, Plaintiff states that he was falsely accused of possessing needles,
which either did not belong to him or were in his lawful possession. Plaintiff gives no further
information about the nature of the false charge, nor does he state whether he was given a
hearing on the charge that afforded him the procedural protections described in Wolff v.
McDonnell, 418 U.S. 539 (1974). 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). If Plaintiff was not afforded the procedural protections in Wolff, he still
may not have an actionable claim. Without any of these details, Count 18 against Defendants
New, Severs, Richard, Harrington, Allen, and Godinez shall be dismissed without prejudice.
Plaintiff‟s claim against Defendant Veath (Count 19), the Adjustment Committee chair,
for “falsely” finding Plaintiff guilty of the rule violation shall be dismissed without prejudice. A
cause of action does not arise where a plaintiff simply disagrees with the outcome of a
disciplinary proceeding. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (plaintiff‟s
argument that conspiracy by prison officials to deny administrative review of his grievances by

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dismissing them was frivolous where plaintiff had access to the grievance procedure but he did
not obtain the outcome he desired). In the case at bar, Plaintiff attempts to assert a claim for
violation of his constitutional rights after being sent to segregation for false disciplinary charges.
However, Plaintiff has not alleged that the disciplinary hearing was in any way faulty.
Therefore, Count 19 against Defendant Veath shall be dismissed without prejudice.
Likewise, Plaintiff‟s Eighth Amendment claim (Count 20) shall be dismissed. Plaintiff
alleges that he “has suffered” because of his placement in segregation (Doc. 1, p. 10). This
vague allegation falls far short of stating a claim under the Eighth Amendment. It is unclear
whether Plaintiff is attempting to raise an Eighth Amendment claim based on the conditions of
his confinement, a serious medical need, or some other reason. Without more, his claim fails and
shall be dismissed without prejudice.
In summary, Count 18 against Defendants New, Severs, Richard, Harrington, Allen, and
Godinez shall be dismissed without prejudice for failure to state a claim upon which relief can be
granted. Count 19 against Defendant Veath shall be dismissed without prejudice for failure to
state a claim. Count 20 against all of these defendants shall also be dismissed without prejudice.
However, Count 17 against Defendants New, Severs, Richard, Harrington, Allen, and Godinez
states a colorable claim; therefore, Claim 4 shall proceed.
CLAIM 5
Plaintiff alleges that on September 20, 2012, Defendants Spiller, Atchison, Veath, and
Harrington stole legal documents from him, in violation of Plaintiff‟s rights under the Fourth,
Sixth, Eighth, and Fourteenth Amendments (Doc. 1, p. 10). The papers included two affidavits
of Plaintiff‟s cellmate, which Plaintiff intended to file with the Court. Plaintiff alleges that
Defendants confiscated these papers in order to deny him access to the courts.

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Plaintiff has failed to articulate a colorable access to courts claim (Count 21) against
Defendants Spiller, Atchison, Veath, and Harrington. Plaintiff‟s complaint does not address the
two-part test used to decide if prison administrators have violated the right of access to the
courts. Lehn, 364 F.3d at 868. Plaintiff does not suggest that prison officials failed “to assist in
the preparation and filing of meaningful legal papers by providing [him] 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)). Plaintiff has also not
shown, or even suggested, actual substantial prejudice to specific litigation. Kincaid, 969 F.2d at
603 (7th Cir. 1992), cert. denied, 506 U.S. 1062 (1993).
Count 21 against Defendants Spiller, Atchison, Veath, and Harrington shall be dismissed
without prejudice. Therefore, Claim 5 must be dismissed in its entirety.
CLAIM 6
Plaintiff alleges that on an unspecified date Defendants Atchison, Harrington, Spiller,
New, Severs, Godinez, Veath, and Allen used Menard‟s disciplinary system to take Plaintiff‟s
property, confine Plaintiff to segregation for eighteen months, transfer him to Pontiac, harm his
health, and retaliate against him (Doc. 1, p. 11). In doing so, Defendants violated Plaintiff‟s
rights under the First, Fourth, Eighth, and Fourteenth Amendments.
Plaintiff‟s claims under the First Amendment (Count 22), Fourth Amendment (Count 23),
and Fourteenth Amendment (Count 24) are subsumed in the above-referenced claims. Because
these claims are duplicative, they shall be dismissed with prejudice.
The only new claim Plaintiff asserts is an Eighth Amendment claim (Count 25) for
Defendants‟ alleged deliberate indifference to his serious medical needs. The Supreme Court has
recognized that “deliberate indifference to serious medical needs of prisoners” may constitute

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cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97,
104 (1976).

In order to state a claim of cruel and unusual punishment under the Eighth

Amendment, a prisoner must allege “acts and omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs,” Id., 429 U.S. at 106. In the instant complaint,
Plaintiff alleges that Defendants kept “[him] in segregation so as to hamper [his] health” (Doc. 1,
p. 11). He does not identify a specific medical need, state that it is serious, or allege that any
defendants denied him adequate medical treatment. Without these basic assertions, the Court
cannot allow Plaintiff to proceed on his Eighth Amendment claim. Accordingly, Count 25 shall
be dismissed without prejudice for failure to state a claim upon which relief can be granted.
In summary, Counts 22, 23, and 24 against Defendants Atchison, Harrington, Spiller,
New, Severs, Godinez, Veath, and Allen shall be dismissed with prejudice. Count 25 against
these same defendants shall be dismissed without prejudice.

Therefore, Claim 6 must be

dismissed in its entirety.
CLAIM 7
Plaintiff alleges that on August 28, 2012, Defendants McDonnounh, Anderson, Dunn,
Cowan, Severs, and Dilday confiscated Plaintiff‟s radio in violation of the First, Fourth, and
Fourteenth Amendments. Plaintiff alleges that this action was taken in retaliation against him.
Plaintiff fails to articulate a colorable claim under the First Amendment (Count 26).
Beyond his passing reference to the First Amendment, Plaintiff does not even address this claim.
He does not, for example, allege that his radio is a religious item or that the confiscation of the
radio interfered with his religious exercise. Without more, Plaintiff cannot proceed on this claim.
Accordingly, Count 26 shall be dismissed without prejudice.

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Plaintiff has also failed to state a claim under the Fourth Amendment (Count 27).
Construing the allegations in the complaint liberally in his favor, Plaintiff seems to suggest that
Defendants violated his Fourth Amendment rights by confiscating his radio during an unlawful
cell search. The Supreme Court has held that the Fourth Amendment does not apply to searches
of a prison cell. Hudson, 468 U.S. at 526. Accordingly, Count 27 shall be dismissed without
prejudice.
Plaintiff‟s Fourteenth Amendment claim also fails (Count 28). To state a claim under the
due process clause of the Fourteenth Amendment, Plaintiff must establish a deprivation of liberty
or property without due process of law; if the state provides an adequate remedy, Plaintiff has no
civil rights claim because Illinois provides an adequate post-deprivation remedy in an action for
damages in the Illinois Court of Claims. See Hudson, 468 U.S. at 530-36; Murdock, 193 F.3d at
513; Stewart, 5 F.3d at 1036; 705 ILL. COMP. STAT. 505/8 (1995). Count 28 shall be dismissed
without prejudice, so that Plaintiff may bring the claim in state court should he wish to pursue
this claim.
Finally, Plaintiff‟s retaliation claim (Count 29) also fails. In the prison context, where an
inmate is alleging retaliation, it is not enough to simply state the cause of action. The inmate
must identify the reasons that retaliation has been taken, as well as “the act or acts claimed to
have constituted retaliation,” so as to put those charged with the retaliation on notice of the
claim(s). Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). The inmate need not plead facts to
establish the claim beyond doubt, but need only provide the bare essentials of the claim, and in a
claim for retaliation the reason for the retaliation and the acts taken in an effort to retaliate
suffice. Id. Plaintiff has merely asserted that his radio was confiscated in retaliation (Doc. 1,
p. 11). Left to guess “what for,” the Court is compelled to dismiss Count 29 without prejudice.

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In summary, Counts 26, 27, 28 and 29 against Defendants McDonnounh, Anderson,
Dunn, Cowan, Severs, and Dilday shall be dismissed without prejudice for failure to state a claim
for relief. Therefore, Claim 7 must be dismissed in its entirety.
CLAIM 8
Plaintiff alleges that Defendants Severs and Nagel intercepted a painting that Plaintiff
mailed to a friend, after it was returned for insufficient postage (Doc. 1, p. 12). Defendants
Severs and Nagel then mailed the painting to Plaintiff‟s mother, who never received it. When
Plaintiff attempted to address the issue with Defendants Atchison, Allen, and Godinez, they
refused to address it.
Plaintiff has failed to state a claim against Defendants Severs and Nagel for violating his
constitutional rights (Count 30) by intercepting his mail (in this case, a painting). Although
inmates have a right to send and receive mail, that right does not preclude officials from
inspecting mail to ensure that it does not contain contraband. Kaufman v. McCaughtry, 419 F.3d
678, 685 (7th Cir. 2005); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999); Wolff, 418 U.S. at
576 (1974).

Courts have consistently held that searches of prisoners‟ outgoing mail is

permissible for security purposes, such as searching for contraband, escape plans, and the like.
See Rowe, 196 F.3d at 782 (“prison security is „a sufficiently important governmental interest to
justify limitations on a prisoner's first amendment rights‟”); Gaines, 790 F.2d at 1304
(“provisions of this type do not impermissibly intrude on First Amendment rights”); Smith v.
Shimp, 562 F.2d 423, 425 (7th Cir. 1977). Furthermore, “merely alleging an isolated delay or
some other relatively short-term . . . disruption in the delivery of inmate reading materials will
not support . . . a cause of action grounded upon the First Amendment.” Rowe, 196 F.3d at 782.
Beyond loss of his property, Plaintiff has not made any showing that he was harmed.

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Should he wish to pursue a claim for loss of his property, Plaintiff should do so by filing
an action for damages in the Illinois Court of Claims.

See Hudson, 468 U.S. at 530-36;

Murdock, 193 F.3d at 513; Stewart, 5 F.3d at 1036; 705 ILL. COMP. STAT. 505/8 (1995). Count
30 against Defendants Severs and Nagel shall be dismissed without prejudice, so that Plaintiff
may bring the claim in state court should he wish to pursue this claim.
Likewise, Plaintiff has failed to state a viable claim against Defendants Atchison, Allen,
and Godinez for retaliation (Count 31) or for failure to investigate his grievance (Count 32). He
sues them for the “malice, retaliation, or deliberate indifference” they exhibited when refusing to
address the issue of his intercepted mail.

Plaintiff‟s allegations relating to retaliation are

woefully inadequate to pass muster, even at the threshold stage. Plaintiff fails to include basic
facts needed to place Defendants on notice of the claim. For example, Plaintiff has not stated the
reason for the retaliation or the acts taken in an effort to retaliate. See Higgs, 286 F.3d at 439.
Accordingly, his retaliation claim (Count 31) shall be dismissed without prejudice.
Similarly, Plaintiff has failed to state a claim against Defendant Atchison, Allen, or
Godinez for failing to investigate his complaints regarding the intercepted painting (Count 32).
The fact that a counselor, grievance officer, or even a supervisor received a complaint about the
actions of another individual does not create liability. In order to be held individually liable, a
defendant must be “personally responsible for the deprivation of a constitutional right.” 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)). See also Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Further,
“a state‟s inmate grievance procedures do not give rise to a liberty interest protected by the Due
Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Thus, Plaintiff has

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no claim against Defendants Atchison, Allen, or Godinez, merely because they did not
adequately respond to his grievances. Count 32 shall be dismissed without prejudice.
In summary, Count 30 against Defendants Severs and Nagel shall be dismissed without
prejudice for failure to state a claim upon which relief can be granted. Counts 31 and 32 against
Defendants Atchison, Allen, and Godinez shall be dismissed without prejudice for failure to state
a claim. Accordingly, Claim 8 must be dismissed in its entirety.
CLAIM 9
Plaintiff alleges that Defendants Atchison, Harrington, Nwaobasi, and Veath violated his
constitutional rights by delaying treatment of his ingrown toenails for over a year (Doc. 1, p. 12).
Plaintiff was originally scheduled to have two ingrown toenails surgically corrected in December
2011 and January 2012. Plaintiff put in sick call requests and paid the fee for the procedure.
Each time Plaintiff was scheduled for surgery, it was delayed for various reasons. The warden
prohibited movement of inmates for healthcare.
unknown reasons.

The doctor cancelled the procedure for

After more than a year passed, Plaintiff transferred to Pontiac. There,

Plaintiff‟s doctor determined that the toenails could not be corrected. Plaintiff had trouble
walking. It became necessary to remove the toenails on both of Plaintiff‟s large toes. The delay
in his medical treatment and the eventual removal of his toenails caused Plaintiff to suffer pain
unnecessarily for over a year.
Construing the allegations in Plaintiff‟s complaint liberally, he has stated an Eighth
Amendment claim for deliberate indifference to his medical needs against Defendants Atchison,
Harrington, Nwaobasi, and Veath (Count 33). Therefore, he shall be allowed to proceed on
Count 33.

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Plaintiff also asserts a medical claim under the Fourteenth Amendment (Count 34), but
his claim fails. Although the “Due Process Clause of the Fourteenth Amendment protects
pretrial detainees under the same standard as the Eighth Amendment,” Plaintiff has not alleged
that he was a pretrial detainee at the time of the alleged constitutional violation. Zentmyer v.
Kendall Cnty., 220 F.3d 805, 810 (7th Cir. 2000). Therefore, Plaintiff properly raised his claim
under the Eighth Amendment, and it is not necessary to do so under the Fourteenth Amendment.
In summary, Count 34 shall be dismissed without prejudice for failure to state a claim,
but Count 33 states a colorable claim; therefore, Claim 9 shall proceed.
CLAIM 10
Plaintiff alleges that on August 28, 2012, Defendants Dunn, McDonnounh, and Anderson
beat him while he was cuffed (Doc. 1, p. 13). While calling Plaintiff a “devil worshipper,” these
defendants pushed Plaintiff under the stairwell, tripped him, and kicked him repeatedly in the
groin, gut, back, and legs. The beating lasted approximately five minutes. Defendants told
Plaintiff “to file all the lawsuits [he] want[s]. . . .” As a result of this beating, Plaintiff suffered
months of pain in his lower back and sciatic nerve, which were already injured. Defendants
Atchison and Harrington denied Plaintiff‟s requests for medical treatment.
Plaintiff has stated a viable claim for use of excessive force under the Eighth Amendment
(Count 35), and he shall be allowed to proceed on this claim against Defendants Dunn,
McDonnounh, and Anderson. Plaintiff has also articulated a colorable Eighth Amendment claim
against Defendants Dunn, McDonnounh, Anderson, Atchison, and Harrington for exhibiting
deliberate indifference to his serious medical needs (Count 36), and he shall be allowed to
proceed on this claim. Finally, Plaintiff has stated a retaliation claim against these defendants
(Count 37).

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In summary, Counts 35, 36, and 37 state colorable claims. Therefore, Claim 10 shall
proceed.
CLAIM 11
Plaintiff alleges that Defendants Atchison and Godinez confiscated Plaintiff‟s guitar.
They forced him to decide whether to have it destroyed or mail it outside of the facility (Doc. 1,
p. 13). Plaintiff claims that this act prevented him from writing songs using his guitar, in
violation of his First and Fourteenth Amendment rights.
Plaintiff‟s claim under the First Amendment (Count 38) fails. Restrictions on an inmate‟s
freedom of expression are valid only if reasonably related to legitimate penological interests.
Turner v. Safley, 482 U.S. 78, 89 (1987); Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). In
determining whether a given prison regulation is constitutional, the Court analyzes four factors:
whether the regulation is rationally related to a legitimate or neutral governmental objective;
whether alternative means of exercising the right remain open to the inmate; what impact an
accommodation of the asserted right will have on guards and other inmates; and whether obvious
alternatives to the regulation exist that show the regulation is an exaggerated response to prison
concerns. Turner, 482 U.S. at 89-91; Lindell, 377 F.3d at 657. Here, Plaintiff has not raised a
challenge to a prison policy or state procedure.

Instead, he challenges an unauthorized

confiscation of his property, a claim controlled by the Fourteenth Amendment.
Plaintiff media access claim (Count 39) also fails. Once again, Plaintiff has not explained
this claim, and his vague reference to this cause of action is so abstract and conclusory that it
fails to pass muster even at this early stage in litigation. See Twombly, 590 U.S. at 570.
Accordingly, Plaintiff‟s First Amendment media access claim shall be dismissed without
prejudice.

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Under the Fourteenth Amendment (Count 40), the unauthorized intentional taking of a
prisoner‟s property does not violate due process so long as there are meaningful post-deprivation
remedies for the loss, such as an action for damages in the Illinois Court of Claims. Hudson, 468
U.S. at 533; Wynn, 251 F.3d at 592-93; Murdock, 193 F.3d at 513; Stewart, 5 F.3d at 1036; 705
ILL. COMP. STAT. 505/8 (1995). Because a state court remedy is available to Plaintiff, his
constitutional claim for deprivation of his property fails.
In summary, Counts 38, 39, and 40 against Defendants Atchison and Godinez shall be
dismissed without prejudice for failure to state a claim upon which relief can be granted. Claim
11 must be dismissed in its entirety.
CLAIM 12
Finally, Plaintiff alleges that Defendants opened his legal mail and kept it from him for
months (Doc. 1, p. 13). The delay caused Plaintiff to miss a deadline. Eventually, the deadline
expired. Defendants Atchison and Harrington are responsible. Plaintiff alleges that this act
violated his rights under the Sixth Amendment.
Plaintiff‟s claim against Defendants Atchison and Harrington for unlawfully intercepting
his mail (Count 41) fails. Although inmates have a right to send and receive mail, that right does
not preclude officials from inspecting mail to ensure that it does not contain contraband.
Kaufman v. McCaughtry, 419 F.3d at 685 (7th Cir. 2005); Rowe, 196 F.3d at 782 (7th Cir. 1999);
Wolff, 418 U.S. at 576 (1974). Courts have consistently held that searches of prisoners‟ outgoing
mail is permissible for security purposes, such as searching for contraband, escape plans, and the
like. See Rowe, 196 F.3d at 782 (“prison security is „a sufficiently important governmental
interest to justify limitations on a prisoner's First Amendment rights‟”); Gaines, 790 F.2d at 1304
(“provisions of this type do not impermissibly intrude on first amendment rights”); Shimp, 562

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F.2d at 425. Furthermore, “merely alleging an isolated delay or some other relatively shortterm . . . disruption in the delivery of inmate reading materials will not support . . . a cause of
action grounded upon the First Amendment.” Rowe, 196 F.3d at 782. Beyond loss of his
property, Plaintiff has not made any showing that he was harmed. Accordingly, Count 41 shall
be dismissed without prejudice.
Plaintiff‟s related access to courts claim (Count 42) also fails. Plaintiff has not alleged
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, 977 F.2d at 268 (quoting Bounds, 430 U.S. at 828). Furthermore, Plaintiff has
not alleged that he suffered actual substantial prejudice to specific litigation. See Alston v.
DeBruyn, 13 F.3d at 1041; see also Lehn, 364 F. 3d at 868. Plaintiff has failed to allege any
specifics about his missed deadline or the impact it had on his litigation. Accordingly, Plaintiff‟s
access to courts claim (Count 42) against Defendants Atchison and Harrington fails.
In summary, Counts 41 and 42 against Defendants Atchison and Harrington shall be
dismissed without prejudice. Therefore, Claim 12 is dismissed in its entirety.
4.

Severance
Although Claims 1, 3, 4, 9, and 10 all state colorable claims, they cannot proceed

together in the same action. 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‟s complaint contains an

21

unwieldy twelve claims against seventeen defendants. Only five of these claims survive this
threshold review.
Most of these five claims set forth unrelated allegations against different defendants.
Claim 1 against Defendants McDonnounh, Dunn, Cowan, Dilday, and Godinez addresses the
confiscation of certain religious property in retaliation against Plaintiff and in violation of the
First Amendment. Claim 3 against different defendants, Fedderke and Nagel, also addresses the
confiscation of certain religious property in retaliation against Plaintiff and in violation of the
First Amendment.

Claim 4 against Defendant New, Severs, Richard, Harrington, Allen,

Godinez, and Veath raises an unrelated retaliation claim. Claim 9 against Defendants Atchison,
Harrington, Veath, and Nwaobasi raises still another unrelated Eighth Amendment medical
claim. Claim 10 against Defendants McDonnounh, Dunn, Anderson, Atchison, and Harrington
addresses a separate Eighth Amendment excessive force, medical, and retaliation claim.
Consistent with the George decision and Federal Rule of Civil Procedure 21, the Court
shall sever Claims 4, 9, and 10 of Plaintiff‟s complaint from Claims 1 and 3, and shall open a
new case with a newly-assigned case number for Claims 4, 9, and 10. However, Plaintiff shall
have an opportunity to voluntarily dismiss the newly severed cases if he does not wish to proceed
on those claims or incur the additional filing fees.
5.

Pending Motions
Plaintiff‟s motion for appointment of counsel (Doc. 4) shall be referred to United States

Magistrate Judge Philip M. Frazier for further consideration.
6.

Disposition
IT IS HEREBY ORDERED that COUNTS 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16, 18, 19,

20, 21, 25, 26, 27, 28, 29, 30, 31, 32, 34, 38, 39, 40, 41, 42 are DISMISSED without prejudice

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from this action for failure to state a claim upon which relief can be granted. COUNTS 22, 23,
and 24 are DISMISSED with prejudice for failure to state a claim for relief.
IT IS ALSO ORDERED that DEFENDANT SPILLER is DISMISSED without
prejudice from this action.
IT IS FURTHER ORDERED that Plaintiff‟s CLAIM 4 (COUNT 17), Plaintiff‟s
CLAIM 9 (COUNT 33), and Plaintiff‟s CLAIM 10 (COUNTS 35, 36, and 37), which are
unrelated to Claims 1 and 3, are SEVERED into three new cases. The three new cases present
the following claims:
CLAIM 4:

Defendants New, Severs, Richard, Harrington, Allen, Godinez,
and Veath issued Plaintiff disciplinary tickets for possession of
sewing needles on August 27, 2012, in retaliation and in
violation of the Fourth, Eighth, and Fourteenth Amendments;

CLAIM 9:

Defendants Atchison, Harrington, Nwaobasi, and Veath
delayed treatment of Plaintiff’s ingrown toenails for more than
a year, in violation of the Eighth and Fourteenth Amendments;
and

CLAIM 10: Defendants Dunn, McDonnounh, Anderson, Atchison, and
Harrington used excessive force against Plaintiff on August 28,
2012, in retaliation against Plaintiff and in violation of the
Eighth Amendment.
The new cases SHALL BE ASSIGNED to the undersigned District Judge for further
proceedings. In the new cases, the Clerk is DIRECTED to file the following documents:
(1)

This Memorandum and Order;

(2)

The Original Complaint (Doc. 1);

(3)

Plaintiff‟s

Motion

for

Temporary

Restraining

Order/Preliminary

Injunction (Doc. 2);
(4)

Plaintiff‟s Motion for Leave to Proceed In Forma Pauperis (Doc. 3);

(5)

Plaintiff‟s Motion for Recruitment of Counsel (Doc. 4);
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(6)

Order Denying Motion for TRO/Preliminary Injunction (Doc. 6);

(7)

Plaintiff‟s Motion for Reconsideration of Order Denying TRO/Preliminary
Injunction (Doc. 7); and

(8)

The Order granting pauper status (Doc. 8).

Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with the newlyopened cases, he must notify the Court in writing on or before August 16, 2013. Unless Plaintiff
notifies the Court that he does not wish to pursue the newly opened actions, he will be
responsible for an additional $350.00 filing fee in each new case. Service shall not be ordered
on Defendants in those cases until after the deadline for Plaintiff‟s response. Plaintiff should
also be aware that filing an amended complaint or a new case may result in the imposition of
filing fees for each severed cause in the amount of $350 per case under George v. Smith, 507
F.3d 605 (7th Cir. 2007).
IT IS FURTHER ORDERED that the only claims remaining in this action are
COUNT 1 against Defendants McDonnounh, Dunn, Cowan, Dilday, Atchison, Harrington,
and Godinez, for confiscation of Plaintiff‟s personal property in retaliation and in violation of
the First Amendment Free Exercise and Free Speech Clauses and COUNT 3 against
Defendants Fedderke and Nagel, for confiscation of Plaintiff‟s personal property in retaliation
and in violation of the First Amendment Free Exercise Clause. This case shall now be captioned
as: Darrin W. Shatner, Plaintiff, vs. McDonnounh, Dunn, Cowan, R. Dilday, Mike
Atchison, Harrington, Director Godinez, Kevin Fedderke, C/O Nagel, Defendants.
IT IS FURTHER ORDERED that Defendant W. A. SPILLER, MISTY NEW,
SEVERS, RICHARD, GINA ALLEN, TIMOTHY VEATH, S. NWAOBASI and
ANDERSON are TERMINATED from this action with prejudice.

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IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants
McDONNOUNH, DUNN, COWAN, DILDAY, ATCHISON, HARRINGTON, GODINEZ,
FEDDERKE and NAGEL: (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
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

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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, which shall include a determination on
the pending motion for appointment of counsel (Doc. 4).
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.
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).

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IT IS SO ORDERED.
DATED: July 17, 2013
s/ J. PHIL GILBERT
U.S. District Judge

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