Widmer v. Kempfer

Filing 1

MEMORANDUM AND ORDER severing case no. 13-787-MJR-SCW. Signed by Judge Michael J. Reagan on 12/2/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL WIDMER, # B-30985,
Plaintiff,
vs.
UNKNOWN PARTY Mailroom
Employees - John/Jane Does #1-#3,
LAWLESS, DILLMAN,
UNKNOWN INTERNAL AFFAIRS
Staff - John/Jane Does #1-#3,
and KEMPFER,
Defendants.

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Case No. 13-cv-787-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court for review of Plaintiff’s First Amended Complaint
(Doc. 24), filed on November 7, 2013. After the Court reviewed Plaintiff’s original complaint in
Widmer v. Page, et al., Case No. 13-cv-663-MJR-SCW (Doc. 1 in the instant case), Plaintiff’s
claim against the Unknown Party Mailroom Employees who opened his legal mail was severed
from the original case into this action. Plaintiff was then ordered (Doc. 10) to file an amended
complaint in order to identify the unknown defendants.
The First Amended Complaint names Defendant Dillman (the prison mailroom
supervisor), as well as three still-unknown mailroom Defendants, in connection with the
improper opening of Plaintiff’s legal mail in June 2013 (Doc. 24, pp. 5, 7). This claim shall be
designated herein as COUNT 1.
In addition to this original claim, Plaintiff includes new allegations of
constitutional violations by other Defendants. Some of these new claims are related to his rights
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to send and receive mail, but two of the new claims involve separate and distinct incidents and
Defendants. The new allegations in the First Amended Complaint are summarized below.
In July 2013, Plaintiff’s incoming regular mail was delivered to him very late,
ranging from 20 days to 45 days after the postmarked date (Doc. 24, pp. 5-6). This delay was
caused by the Unknown Mailroom Employee Defendants, as well as the Unknown Internal
Affairs Staff Defendants (Doc. 24, p. 7). Plaintiff asserts that this group of Defendants has
engaged in a civil conspiracy to obstruct his legal and regular mail. Defendant Dillman admitted
in a hearing before this Court that she and other mailroom employees have opened incoming
prisoner legal mail outside the presence of the inmate recipient. Despite Plaintiff’s complaints
about the delays and obstruction of his mail, the Unknown Internal Affairs Staff refused to
conduct any investigation.
On July 31, 2013, when Plaintiff was being transferred to another facility for a
court writ, Defendant Lawless (correctional officer) confiscated, read, and then destroyed
Plaintiff’s legal mail and documents that Plaintiff intended to take with him (Doc. 24, p. 6).
When Plaintiff asked for his documents, Defendant Lawless took him into another room. There,
Defendant Lawless and two other officers stripped Plaintiff naked, and told him they wanted to
make sure they got all his legal documents. No other inmate scheduled for transfer that day was
strip-searched or had his legal documents confiscated. As a result of losing his legal material,
which included several witness affidavits, Plaintiff was unprepared for his hearing in Ford
County Circuit Court Case No. 11-JA-1, and he lost his parental rights.
Defendant Kempfer removed Plaintiff’s written grievances from his cell door,
read them, and threw them in the trash on two occasions (Doc. 24, p. 8). A couple of these
complaints were against Defendant Kempfer. On October 8, 2013, after reading Plaintiff’s

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grievances against him, Defendant Kempfer “assaulted” Plaintiff, and then denied him access to
his legal storage materials until an assistant attorney general in another pending case made an
inquiry about the problem.
Plaintiff requests this Court to set a hearing and enjoin the Unknown Party
Mailroom and Internal Affairs Defendants from continuing to interfere with his regular and legal
mail and from engaging in other misconduct, once these parties are identified (Doc. 24, p. 8). He
also seeks damages and declaratory relief.
Merits Review Pursuant to 28 U.S.C. § 1915A
As Plaintiff was advised when he was ordered to submit an amended complaint,
this amended pleading is subject to a merits review pursuant to § 1915A. As with any prisoner
complaint, the Court is required to conduct a prompt threshold review of the amended pleading,
and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from an immune defendant.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has
articulated a colorable federal cause of action in COUNT 1 against Defendant Dillman and the
Unknown Party Mailroom Defendants, for improperly opening Plaintiff’s legal mail outside his
presence.

In addition, Plaintiff has pled sufficient facts to warrant further review of the

following related claim:
COUNT 2:

Against Defendant Dillman, the Unknown Party Mailroom

Defendants, and the Unknown Party Internal Affairs Staff Defendants, for causing inordinate
delay in the delivery of Plaintiff’s regular mail.
Plaintiff has stated two more cognizable claims. However, neither is related to
the claims in Counts 1 or 2, nor are they related to each other. These claims are as follows:

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COUNT 3: Against Defendant Lawless, for interference with Plaintiff’s access
to the courts with regard to the Ford County parental rights case, and for improperly reading and
confiscating Plaintiff’s legal documents;
COUNT 4: Against Defendant Kempfer for retaliation, for denying Plaintiff
access to his stored legal materials and for destroying Plaintiff’s grievances, after learning that
Plaintiff attempted to file grievances against him.
Each of these claims involves conduct that has nothing to do with the opening of
Plaintiff’s legal mail or the delays in delivering his regular mail by the mailroom or internal
affairs staff. Therefore, if Plaintiff wishes to pursue the claims in Counts 3 and/or 4 against
Defendant Lawless or Defendant Kempfer, he must do so in separate actions. See George v.
Smith, 507 F.3d 605 (7th Cir. 2007) (unrelated claims against different defendants belong in
separate lawsuits).
Consistent with the George decision and Federal Rule of Civil Procedure 21, the
Court shall sever Count 3 and Count 4 of Plaintiff’s First Amended Complaint, and shall open
two new cases with newly-assigned case numbers for those claims. As with the severance of this
matter from his original case, Plaintiff shall have an opportunity to voluntarily dismiss either or
both newly severed cases if he does not wish to proceed on those claims or incur the additional
filing fees.
Claims to be Dismissed
Plaintiff’s remaining allegations fail to state a claim upon which relief may be
granted, and shall be dismissed as described below.
Count 5: Civil Conspiracy
In addition to his substantive claims for mail interference in Counts 1 and 2,

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Plaintiff seeks to add a conspiracy claim against Defendant Dillman, the Unknown Party
Mailroom Defendants, and the Unknown Party Internal Affairs Staff Defendants for the mail
obstruction. Under the intracorporate conspiracy doctrine, a 42 U.S.C. § 1985 conspiracy claim
“cannot exist solely between members of the same entity.” Payton v. Rush Presbyterian-St.
Luke’s Med. Ctr., 184 F.3d 623, 632 (7th Cir. 1999). Plaintiff has alleged that the defendants are
members of the same entity, the Illinois Department of Corrections, and that they were all
working in the IDOC’s interest.

Therefore, the defendants cannot be sued under § 1985

conspiracy. See id. See also Wright v. Ill. Dep’t Of Children and Family Servs., 40 F.3d 1492,
1508 (7th Cir. 1994). Further, “the function of a conspiracy claim under 42 U.S.C. § 1985(3) is
to ‘permit recovery from a private actor who has conspired with state actors.’” Turley v.
Rednour, 729 F.3d 645, 649 n.2 (7th Cir. 2013) (quoting Fairley v. Andrews, 578 F.3d 518, 526
(7th Cir. 2009)). No private actor is named herein. Finally, the conspiracy allegation does
nothing but add needless complexity to this action. For these reasons, the conspiracy claim
(Count 5) shall be dismissed with prejudice.
Count 6: Failure to Investigate Complaints
The Unknown Internal Affairs Staff had no constitutional obligation to investigate
Plaintiff’s complaints regarding the mail obstruction and delayed delivery. The Seventh Circuit
instructs that the alleged mishandling of complaints or grievances “by persons who otherwise did
not cause or participate in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d
950, 953 (7th Cir. 2011). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008);
George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996). Of course, Plaintiff has alleged that these unknown Defendants were directly
involved in the delay in delivering his regular mail. He may proceed on that claim in Count 2

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above. However, he cannot maintain an independent constitutional claim for the failure to
investigate his complaints. Count 6 shall therefore be dismissed with prejudice.
Count 7: Strip Search Claim against Defendant Lawless
Strip searches that are not related to legitimate security needs or are conducted in
a harassing manner in order to humiliate and inflict psychological pain, may be found
unconstitutional under the Eighth Amendment. Further, even if a valid penological reason
existed for the search, “the manner in which the searches were conducted must itself pass
constitutional muster.” Mays v. Springborn, 719 F.3d 631, 634, (7th Cir. 2013) (group of
inmates were strip searched together, gratuitously exposing prisoners’ nude bodies to each other,
while guards uttered demeaning comments); Mays v. Springborn, 575 F.3d 643, 649-50 (7th Cir.
2009); Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (a strip search conducted in a
harassing manner intended to humiliate and inflict psychological pain could violate the Eighth
Amendment); see also Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987) (allegation of
calculated harassment by strip searches stated Eighth Amendment claim), cert. denied, 484 U.S.
935 (1987).
However, Plaintiff’s description of the circumstances of the strip search by
Defendant Lawless does not suggest an Eighth Amendment violation. The search was conducted
in a private room, with just two other officers present. Plaintiff does not allege that his body was
exposed to the view of other prisoners, that he was the target of humiliating or demeaning
comments, or that he was repeatedly made to submit to strip searches. The fact that Plaintiff
appears to have been singled out for this treatment does not of itself amount to a constitutional
violation. The point of the incident, according to the guards’ comments, seems to have been to
relieve Plaintiff of all his legal documents – a claim that may proceed against Defendant Lawless

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in Count 3, if Plaintiff elects to pursue that severed case. The separate strip-search claim (Count
7) shall be dismissed with prejudice.
Count 8: Assault and Access to Court Claims against Defendant Kempfer
As noted above, Plaintiff may proceed on the retaliation claim (Count 4) against
Defendant Kempfer in a case to be severed.

However, he has failed to state any other

independent constitutional claim against this Defendant. The mere assertion that Defendant
Kempfer “assaulted” Plaintiff does not describe the Defendant’s actual conduct, but instead is a
bare legal conclusion. The Seventh Circuit instructs that when evaluating the merits of a pro se
complaint, courts “should not accept as adequate abstract recitations of the elements of a cause of
action or conclusory legal statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Absent any factual information, the Court cannot conclude that Defendant Kempfer used
excessive force against Plaintiff or that this “assault” violated any other constitutional right.
Plaintiff’s allegation that Defendant Kempfer withheld his legal storage materials
in October 2013 may constitute an act of retaliation, but does not support a claim for denial of
access to the courts. An inmate has no constitutional claim unless he can demonstrate that a nonfrivolous legal claim has been frustrated or impeded. Lewis v. Casey, 518 U.S. 343, 352-53
(1996). Plaintiff does not indicate that Defendant Kempfer’s denial of access to his legal
material imposed any actual or potential limitation on his access to the courts. Actual or
threatened detriment is an essential element of an access-to-court claim. Howland v. Kilquist,
833 F.2d 639, 642-43 (7th Cir. 1987); Hossman v. Sprandlin, 812 F.2d 1019, 1021-22 (7th Cir.
1987). As Plaintiff does not assert that he suffered any impairment to his pursuit of any of his
many pending legal actions, the amended complaint does not state a claim against Defendant
Kempfer for denial of access to the courts.

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Both claims against Defendant Kempfer in Count 8 shall be dismissed. Plaintiff
has had ample opportunity to fully plead the factual allegations in support of his claims.
Moreover, despite being instructed to limit his amended complaint to his original claim of
improper opening of his legal mail, Plaintiff added multiple new claims which have been
designated as Counts 2 through 8 herein. Although the Court would have been justified in
striking Plaintiff’s amended complaint for failure to comply with the order at Doc. 10, Plaintiff
will be allowed to pursue three of his additional claims if he so desires. However, the Court’s
patience with Plaintiff’s attempts to expand this action has reached its limit (See Doc. 13).
Accordingly, the dismissal of the claims in Count 8 shall be with prejudice.
Pending Motions
Plaintiff’s motion for temporary restraining order (Doc. 15) and motion for
recruitment of counsel (Doc. 16) shall be referred to United States Magistrate Judge Williams for
further consideration.
Plaintiff’s “Statement to Court,” which is construed as a motion for issuance of
summons (Doc. 27), shall be GRANTED IN PART AND DENIED IN PART. Service shall
be ordered below on Defendant Dillman, who is the only Defendant remaining in this action who
has been identified by name.

No service shall be ordered at this time on the Unknown

Defendants or on the Defendants involved in the cases to be severed.
Disposition
COUNTS 5, 6, 7, and 8 are DISMISSED with prejudice for failure to state a
claim upon which relief may be granted.

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IT IS FURTHER ORDERED that Plaintiff’s claims in COUNTS 3 and 4,
which are unrelated to the mail interference claims in Counts 1 and 2, are each SEVERED into
two separate new cases. Those new cases shall be:
(1) Claims against DEFENDANT LAWLESS for interference with access to the courts
in his Ford County parental rights case, and for reading and confiscating Plaintiff’s legal
documents (Count 3 herein);
(2) Retaliation claim against DEFENDANT KEMPFER, for denial of access to legal
materials and destroying grievances (Count 4 herein).
The new cases SHALL BE ASSIGNED to the undersigned District Judge for further
proceedings.

In each of the new cases, the Clerk is DIRECTED to file the following

documents:
(1)
(2)
(3)

This Memorandum and Order;
The First Amended Complaint (Doc. 24);
Plaintiff’s motion to proceed in forma pauperis (Doc. 3).

Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with one or
both of the newly-opened cases, he must notify the Court in writing within 35 days (on or before
January 6, 2014), specifying which case(s) he wishes to voluntarily dismiss. Unless Plaintiff
notifies the Court that he does not wish to pursue the newly opened action(s), he will be
responsible for an additional filing fee of $350.00 in each new case. No fee will be charged in
any case voluntarily dismissed by Plaintiff. Service shall not be ordered on the Defendants in the
severed cases until after the deadline for Plaintiff’s response.
IT IS FURTHER ORDERED that the only claims remaining in this action are
COUNTS 1and 2, regarding Plaintiff’s legal and regular mail. This case shall now be captioned
as: MICHAEL WIDMER, Plaintiff, vs. UNKNOWN PARTY MAILROOM EMPLOYEES,
DILLMAN, and UNKNOWN INTERNAL AFFAIRS STAFF, Defendants.

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IT IS FURTHER ORDERED that Defendants LAWLESS and KEMPFER are
TERMINATED from this action with prejudice.
As to COUNTS 1 and 2, which remain in the instant case, the Clerk of Court
shall prepare for Defendant DILLMAN: (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
Defendant’s place of employment as identified by Plaintiff. If 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 Defendant, and the
Court will require Defendant to pay the full costs of formal service, to the extent authorized by
the Federal Rules of Civil Procedure.
Service shall not be made on the Unknown (John/Jane Doe) Defendants until such
time as Plaintiff has identified them by name in a properly filed amended complaint. Plaintiff is
ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and service
addresses for these individuals.
If the Defendant cannot be found at the 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, nor
disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance
is entered), a copy of every further pleading or other document submitted for consideration by

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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 any document was served on Defendant 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.
Defendant is 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 Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 16), and consideration of
the motion for TRO (Doc. 15).
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under § 1915, Plaintiff will be required to pay the full amount of the costs,
notwithstanding that his application to proceed in forma pauperis has been granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay fees and costs or
give 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 REMINDED 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: December 2, 2013
s/ MICHAEL J. REAGAN
United States District Judge

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