Hickman v Gaetz et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, IT IS HEREBY ORDERED that, for the reasons stated, COUNT 2 is DISMISSED without prejudice. IT IS FURTHER ORDERED that, because the complaint fails to state any colorable claim against Def endants STACY BROWN, KAREN DEEN, TERRI ANDERSON, and SALVADOR A. GODINEZ, they are DISMISSED from this action without prejudice. The Clerk of Court shall prepare for Defendants GAETZ, MCGUIRE, SWALLERS, FLATT, MCELYEA and BELFORE: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 10/18/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TONY HICKMAN, # B87476,
Plaintiff,
vs.
DONALD D. GAETZ,
SGT. MCGUIRE,
C/O SWALLERS,
C/O FLATT,
SGT. MCELYEA,
C/O BELFORD,
STACY BROWN,
KAREN DEEN,
TERRI ANDERSON, and
SALVADOR A. GODINEZ,
Defendants.

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Case No. 13-cv-00961-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Tony Hickman, currently incarcerated at Pinckneyville Correctional Center, has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1).

Plaintiff claims

that while the prison was on lockdown April 18-22, 2012, before he could commence his dietary
job each day he was strip searched in open view of others (including females and a homosexual)
and in plain view of cameras. It is alleged that all defendants, except Counselor Stacy Brown,
Grievance Officer Karen Deen, Administrative Review Board member Terri Anderson, and
Illinois Department of Corrections Director Salvador A. Godinez, “were all at one time or
another present during one of the five strip searches” (Doc. 1, p. 6). “Plaintiff also claims that
he was subsequently terminated from his dietary job for allegedly stealing three packets of
ketchup, which he contends is not grounds for termination. Plaintiff seeks compensatory and
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punitive damages, an injunction and other equitable relief, such as an investigation and the
suspension or termination of the defendants.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.
Standard of Review
In pertinent 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.
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
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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).
The Complaint
Based on the allegations of the complaint, the Court finds it convenient to divide the pro
se action into two counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.

The

designation of these counts does not constitute an opinion as to their merit.
Count 1: Defendants Warden Gaetz, Sgt. McGuire, C/O Swallers,
C/O Flatt, Sgt. McElyea and C/O Belfore were present
while Plaintiff was strip searched in an unreasonable and
demeaning manner, in violation of the Eighth Amendment;
and
Count 2: Plaintiff was unjustly terminated from his job as a prison
dietary worker.
Discussion
Count 1
Count 1, alleging that Defendants Gaetz, McGuire, Swallers, Flatt, McElyea and Belfore
were present while Plaintiff was strip searched in an unreasonable and demeaning manner shall
proceed. See Mays v. Springborn, 719 F.3d 631, 633-34 (7th Cir. 2013) (protracted, gratuitous
and humiliating strip searches can violate the Eighth Amendment).
Although the complaint only alleges that Gaetz, McGuire, Swallers, Flatt, McElyea and
Belfore were each “present” during one of the five strip searches, at this juncture it is not clear
that those defendants lacked the personal involvement that is required for liability under Section
1983. “An official satisfies the personal responsibility requirement of [Section] 1983 if she acts

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or fails to act with a deliberate or reckless disregard of the plaintiff's constitutional rights.”
Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982) (emphasis added); Fillmore v. Page, 358
F.3d 496, 505 -506 (7th Cir. 2004). Although direct participation is not necessary, there must at
least be a showing that [a defendant] acquiesced in some demonstrable way in the alleged
constitutional violation. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003).
Count 2
Count 2, the allegation that Plaintiff was terminated from his dietary job for allegedly
stealing ketchup, does not implicate any particular defendant. Section 1983 creates a cause of
action based on personal liability and predicated upon fault; thus, “to be liable under [Section]
1983, an individual defendant must have caused or participated in a constitutional deprivation.”
Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). Count 2,
as pleaded, also fails to implicate a constitutional right. Moreover, prisoners have no right to a
job while in prison. Turley v. Rednour, __F.3d__, 2013 WL 3336713, at *6 (7th Cir. July 3,
2013).
For these reasons, Count 2 fails to state a claim upon which relief can be granted and will
be dismissed without prejudice.
Remaining Defendants
Defendants Counselor Stacy Brown, Grievance Officer Karen Deen, Administrative
Review Board member Terri Anderson, and Illinois Department of Corrections Director
Salvador A. Godinez are named in the caption of the complaint, but they are specifically
excluded from Count 1, and they are not linked to Count 2.
Again, Section 1983 creates a cause of action based on personal liability and predicated
upon fault. Pepper, 430 F.3d at 810. Merely naming a defendant in the caption is insufficient to

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state a claim. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). In addition, the doctrine
of respondeat superior does not apply to actions filed under Section 1983. See, e.g., Kinslow v.
Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Merely being a supervisory official is insufficient
for liability to attach.

Lastly, the Court notes that merely ruling against a prisoner’s

administrative grievance does not cause or contribute to a constitutional violation.

Johnson v.

Snyder, 444 F.3d 579, 584 (7th Cir. 2006). Therefore, Defendants Stacy Brown, Karen Deen,
Terri Anderson, and Salvador A. Godinez shall be dismissed from this action, albeit without
prejudice.
Warden Gaetz
Warden Gaetz remains a defendant to Count 1.

In addition, he must remain as a

defendant to this action in his official capacity because the complaint contains a prayer for
injunctive relief and various other equitable remedies. 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).
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.
Because Plaintiff has been granted pauper status (Doc. 6), Plaintiff’s motion for service
of process at government expense (Doc. 3) shall be granted. See 28 U.S.C. § 1915(d),
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 2 is DISMISSED
without prejudice.

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IT IS FURTHER ORDERED that, because the complaint fails to state any colorable
claim against Defendants STACY BROWN, KAREN DEEN, TERRI ANDERSON, and
SALVADOR A. GODINEZ, they are DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that COUNT 1 shall proceed against Defendants
GAETZ, MCGUIRE, SWALLERS, FLATT, MCELYEA and BELFORE; and Defendant
GAETZ shall also remain as a defendant in his official capacity for purposes of injunctive relief.
IT IS FURTHER ORDERED that Plaintiff’s motion for service of process at
government expense (Doc. 3) is GRANTED. The Clerk of Court shall prepare for Defendants
GAETZ, MCGUIRE, SWALLERS, FLATT, MCELYEA and BELFORE:

(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

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entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Philip M. Frazier for further pre-trial proceedings, 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).

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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: October 18, 2013
s/ J. Phil Gilbert
United States District Judge

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