Butler v. Harrington et al

Filing 5

ORDER: COUNTS 3, 4, and 9 are DISMISSED without prejudice for failure to state a claim upon which relief may be granted. COUNTS 1, 6, and 8 are DISMISSED with prejudice for failure to state a claim upon which relief may be granted. COUNT 7 is also DISMISSED; the due process portion is dismissed without prejudice, but the confrontation clause portion is dismissed with prejudice. COUNTS 11 and 12 are DISMISSED FROM THIS ACTION without prejudice to those claims being considered in Plaintiff� 39;s other pending case in this Court, Butler, Bell, and Brown v. Harrington, et al., Case No. 13-cv-1285-MJR (filed Dec. 13, 2013). IT IS FURTHER ORDERED that, should he wish to proceed with the claims in COUNTS 2, 5, and/or 10, Plaintiff shall fi le his First Amended Complaint. In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form.(Amended Pleadings due by 2/13/2014). Signed by Judge J. Phil Gilbert on 1/9/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENDRICK BUTLER, # M-03292,
Plaintiff,
vs.
RICK HARRINGTON,
KIMBERLY BUTLER, REDNOUR,
GAETES, LT. VEATH,
JASON HART, OFFICER ANTHONY,
and SGT. HASEMAYER,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 13-cv-1270-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Pontiac Correctional Center (“Pontiac”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving an 80-year
sentence for murder. The complaint was filed in this Court on December 10, 2013, but had been
signed by Plaintiff on October 11, 2013, apparently before his transfer to Pontiac. Plaintiff’s
numerous claims arose while he was confined at Menard Correctional Center (“Menard”), and
include allegations that he was subjected to excessive force, retaliated against for filing
grievances against prison staff, denied equal access to educational programs and legal materials,
and deprived of due process in the handling of prison disciplinary charges, among other claims.
In addition to the instant case, a second complaint submitted separately by Plaintiff was
received on December 13, 2013, and filed as Butler, Bell, and Brown v. Harrington, et al., Case
No. 13-cv-1285-MJR. Much of the complaint in that case is an exact copy of the instant
complaint, but Plaintiff included two different pages in his statement of claim, and listed two

Page 1 of 17

additional Plaintiffs in the caption. That complaint is awaiting screening by the assigned Judge.
The Complaint
Plaintiff states that he was incarcerated at Menard since 2009 (Doc. 1, p. 4). Since that
time, he was “denied equal protection rights” to participate in educational and rehabilitative
programs. Id.
On an unspecified date, Plaintiff was “attacked” by several prison officials while he was
being returned to Menard from a federal court writ. Id. He could not discern their identities, but
he complained about the excessive use of force to Defendant Hasemayer (of Internal Affairs).
He claims that throughout his stay at Menard, the unidentified law library clerk has
denied him access to legal materials and supplies, causing him to be late in filing documents
(Doc. 1, pp. 4-5).
Plaintiff’s housing area has been placed on “level 1 deadlock” for close to two years.
During these excessive lockdown periods, he was denied medical, legal, and health privileges.
He again invokes an equal protection claim, because other areas of the prison were not subjected
to the same lockdown restrictions (Doc. 1, p. 5).
Plaintiff’s legal and personal mail has been “mishandled” throughout his stay at Menard
by unspecified persons. His legal mail was opened outside his presence, and some legal
documents were lost, including a post-conviction petition, letters from attorneys, and outgoing
legal material.
Plaintiff raises several claims that “wrongful” disciplinary reports have been lodged
against him, and that he was improperly punished with segregation. In April 2011, he was given
six months in segregation on three disciplinary infractions (Doc. 1, p. 5; Doc. 1-1, pp. 1-2).
However, on July 22, 2011, two of the charges were deleted and Plaintiff’s punishment was

Page 2 of 17

reduced to only one month in segregation. He was released from segregation on July 29, 2011,
and claims he served 60 days longer than he should have, after his punishment was adjusted. Id.
Shortly after this release, Plaintiff was sent away on a federal court writ.
On September 11, 2013, Plaintiff was charged with fighting, dangerous disturbance, and
dangerous contraband (Doc. 1, p. 5). He contested these charges but was found guilty. He
claims that the evidence against him included statements from a confidential informant who saw
Plaintiff with a weapon, but he was not allowed to confront that individual in his disciplinary
hearing. Plaintiff indicates that he requested witnesses to be called to the hearing on his behalf,
and that somebody (either Plaintiff, or his witnesses, or the confidential informant – the
complaint is unclear on this point) was not called to that hearing (Doc. 1, p. 6). Plaintiff “was
held until 3/11/2014” (Doc. 1, p. 5).
Next, Plaintiff complains that too much money was withdrawn from his inmate account
to pay restitution that was ordered in a federal case (United States v. Kendrick Butler, No. 080072-4-MWB (N.D. Iowa), where Plaintiff was convicted of bank fraud), and that he was left
without any funds to pay for hygiene items, legal material, or other necessities (Doc. 1, p. 7). He
asserts that federal rules restrict such withdrawals to $30/month or quarterly. Further, he has not
been given indigent hygiene supplies as often as he should receive them.
Plaintiff then returns to a discussion of a disciplinary hearing, apparently on the
September 11, 2013, charges (Doc. 1, p. 7). He refers to an “altercation” during which he asked
Officer Weaver (who is not a named Defendant) to notify Defendant Anthony (of Internal
Affairs). Plaintiff came out of his cell and was “snatched” into another cell by Inmate Wells,
who had a weapon. Somebody (either an inmate or a guard) then locked Plaintiff into the cell,
where he was assaulted by Wells and attempted to fight him off. He did not receive medical

Page 3 of 17

attention for his injuries.
Finally, on November 22, 2013, Plaintiff was placed on investigation status for another
disciplinary report (Doc. 1, p. 9). He claims this report was “written by the office of Internal
Affairs” in retaliation for a grievance Plaintiff had filed against them. Id. They further retaliated
by placing Plaintiff in handcuffs for three days straight, which cut off his circulation and bruised
his wrists and ankles. Prison staff also “assault[ed] his body” while he was handcuffed. Id.
Plaintiff claims there was no proof that he was guilty of the disciplinary infractions, but he was
punished with segregation nonetheless.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, 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.
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). 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

Page 4 of 17

Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Based on the allegations of the complaint, the Court finds it convenient to divide the pro
se action into twelve 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. These counts
are as follows:
Count 1: Equal protection claim for denial of access to educational/rehabilitative
programs;
Count 2: Excessive force claim for assault by unidentified officers upon Plaintiff’s
return from a federal court writ;
Count 3: Denial of access to legal materials by law library clerk which caused delay in
filing court documents;
Count 4: Equal protection claim and Eighth Amendment claim for denial of medical,
legal, and health privileges during excessive lockdown periods;
Count 5: Improper opening of legal mail and mishandling of personal mail;
Count 6: Due process claim for April 11, 2011, disciplinary charges that resulted in
Plaintiff serving 60 days excess segregation time before his punishment was reduced;
Count 7: Due process and confrontation clause claims for September 11, 2013,
disciplinary charges where Plaintiff was found guilty based on evidence from a
confidential informant;
Count 8: Claim for improper withdrawal of Plaintiff’s funds to pay federal restitution;
Count 9: Eighth Amendment claim for failure to provide Plaintiff with indigent hygiene
supplies;
Count 10: Failure to protect claim against unidentified officer(s) who allowed or
facilitated Plaintiff’s beating by a fellow inmate who pulled Plaintiff into his cell;
Count 11: Retaliation claim against unidentified Internal Affairs staff who issued a false
disciplinary report against Plaintiff on November 22, 2013, after Plaintiff pursued a
grievance against them;
Count 12: Excessive force and retaliation claims against unidentified officers who
assaulted Plaintiff and kept him in handcuffs for three days in November 2013 following
the November 22, 2013, disciplinary report.
Page 5 of 17

Throughout his statement of claim, Plaintiff fails to state which (if any) of the named
Defendants were personally responsible for the alleged constitutional violations. In order to state
a claim against a Defendant, a plaintiff must describe what each named Defendant did (or failed
to do), that violated the plaintiff’s constitutional rights. 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). The complaint, as
pled, thus fails to provide any Defendant with sufficient notice of the claims against him or her.
The Defendants include Menard Warden Harrington, former wardens Rednour and
Gaetes, and assistant warden Kimberly Butler. The only mention Plaintiff makes of any of them
in the complaint is to say that Defendant Gaetes was “aware of mail handling and other claims”
(Doc. 1, p. 2). This statement does not indicate any personal involvement of Defendant Gaetes
in the alleged wrongdoing. Liability will not attach to a warden merely because he was the
supervisor of a prison official who committed an unconstitutional act, because the doctrine of
respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001) (citations omitted).
Likewise, Plaintiff “informed” Defendant Hasemayer of the excessive force incident
(Count 2) and nothing was done (Doc. 1, pp. 2, 4). Plaintiff never states that Defendant
Hasemayer took part in the attack on him. The recipient of a grievance or complaint does not
incur liability, regardless of the outcome of the complaint. The alleged mishandling of
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).
Defendant Anthony was “in cahoots with officials and inmates where said confidential
Page 6 of 17

informant gave him information that wasn’t reliable that lead to an excessive seg period,” and
Defendants Veath and Hart were also “in cahoots” with him (Doc. 1, p. 2). It is not clear
whether this statement refers to the disciplinary action described in Count 6, Count 7, or Count
11. These counts shall be discussed further below.
Counts 2, 5, 10, 11, and 12
Turning to the merits of Plaintiff’s claims, his factual allegations for the following counts
suggest that his constitutional rights may have been violated:
Count 2: Excessive force claim for assault by unidentified officers upon Plaintiff’s
return from a federal court writ;
Count 5: Improper opening of legal mail and mishandling of personal mail;
Count 10: Failure to protect claim against unidentified officer(s) who allowed or
facilitated Plaintiff’s beating by a fellow inmate who pulled Plaintiff into his cell;
Count 11: Retaliation claim against unidentified Internal Affairs staff who issued a false
disciplinary report against Plaintiff on November 22, 2013, after Plaintiff pursued a
grievance against them;
Count 12: Excessive force and retaliation claims against unidentified officers who
assaulted Plaintiff and kept him in handcuffs for three days in November 2013 following
the November 22, 2013, disciplinary report.
However, the complaint as pled fails to state a constitutional claim upon which relief may
be granted for these counts. In order for these claims to receive further consideration, Plaintiff
must identify the responsible Defendants for each count. In addition, Plaintiff must provide
additional information as to the dates of the incidents in Counts 2, 5, and 10, in order to enable
the opposing parties to answer the complaint.
Plaintiff shall be required to submit an amended complaint (as instructed below), which
shall include the factual allegations (and relevant dates) to support his claims in Counts 2, 5, and
10, and shall identify the responsible Defendants by name for each count. If the amended

Page 7 of 17

complaint still fails to state a claim, or if Plaintiff does not submit an amended complaint, the
entire case shall be dismissed with prejudice, and the dismissal shall count as a strike pursuant to
§ 1915(g). The amended complaint shall be subject to review pursuant to § 1915A.
As noted above, Plaintiff submitted a nearly identical complaint in Case No. 13-cv-1285MJR. That complaint differs from the instant one in that it identifies by name the officers who
issued the retaliatory disciplinary report in Count 11, and names the three officers who kept
Plaintiff in handcuffs as described in Count 12 above. Accordingly, Counts 11 and 12 shall be
dismissed from the instant case, without prejudice to these claims being considered in Case No.
13-cv-1285-MJR.
Claims to be Dismissed
The claims in Counts 1, 3, 4, 6, 7, 8, and 9 above are subject to dismissal pursuant to
§ 1915A, for the reasons explained below.
Count 1 – Exclusion from Educational/Rehabilitative Programs
It is well settled that there is no property or liberty interest in attending educational,
vocational, or rehabilitative courses while in prison, and institutions are not constitutionally
required to provide these programs to inmates. Zimmerman v. Tribble, 226 F.3d 568, 571 (7th
Cir. 2000); Higgason v. Farley, 83 F.3d 807, 809 (7th Cir. 1996); Garza v. Miller, 688 F.2d 480,
486 (7th Cir. 1982), cert. denied 459 U.S. 1150 (1983). Consequently, Plaintiff has no viable
constitutional due process claim.
Similarly, Plaintiff’s inability to take part in these programs does not give rise to an equal
protection claim. A “prison administrative decision may give rise to an equal protection claim
only if the plaintiff can establish that ‘state officials had purposefully and intentionally
discriminated against him.’” Meriwether v. Faulkner, 821 F.2d 408, 415 n.7 (7th Cir.), cert.

Page 8 of 17

denied, 484 U.S. 935 (1987) (citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982)).
Plaintiff’s allegations do not suggest such purposeful discrimination, nor do they indicate that
Plaintiff was singled out for differential treatment for no rational reason. See Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (discussing class-of-one equal protection
claim). Accordingly, Count 1 shall be dismissed with prejudice.
Count 3 – Denial of Access to Legal Materials
Plaintiff alleges generally that due to the denial of access to legal material, case law, and
“indigent legal packs,” he was late in filing court documents. However, he does not specify what
pending court cases were affected by this problem, nor does he claim that he suffered the
dismissal of any claim or lost the opportunity to pursue a meritorious case as a result of the
delay.
“[T]he mere denial of access to a prison law library or to other legal materials is not itself
a violation of a prisoner’s rights; his right is to access the courts, and only if the defendants’
conduct prejudices a potentially meritorious challenge to the prisoner’s conviction, sentence, or
conditions of confinement has this right been infringed.” Marshall v. Knight, 445 F.3d 965, 968
(7th Cir. 2006). A prisoner’s complaint must “spell out, in minimal detail, the connection
between the alleged denial of access to legal materials and an inability to pursue a legitimate
challenge to a conviction, sentence, or prison conditions.” Id. Furthermore, even though
Plaintiff may have filed some documents late, not every delay will rise to the level of a
constitutional deprivation. 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. In the instant complaint,
Plaintiff does not make a single allegation which would describe any detriment to a specific case

Page 9 of 17

or an actual or potential limitation on his access to the courts. This claim shall therefore be
dismissed, albeit without prejudice.
Count 4 – Excessive Lockdowns
Plaintiff gives no specifics in his claim that he was denied “medical, legal, and health
privileges” over a nearly two-year period when he subjected to institutional lockdowns. He does
not describe what services or privileges were denied to him, how he might have been harmed,
nor which Defendant(s) were responsible. Mere conclusory allegations such as these are not
sufficient to state a constitutional claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Further, he fails to suggest that the lockdowns were imposed with the purpose of singling out
Plaintiff, or some group to which he belongs, for disparate treatment. The complaint is
insufficient to support either an Eighth Amendment claim or an equal protection claim. Count 4
shall therefore be dismissed without prejudice.
Count 6 – Due Process/Excessive Segregation – April 2011 Disciplinary Charges
Plaintiff asserts that he was made to serve 60 more days in segregation than he should
have spent there, as a result of the April 11, 2011, disciplinary charges. His exhibits show that
after he had already served three months in disciplinary segregation, two of the more serious
charges were removed from his record and his punishment was reduced to one month in
segregation (Doc. 1-1, pp. 1-2). This reduction in punishment, authorized by the Administrative
Review Board (“ARB”) of the Illinois Department of Corrections, apparently resulted from
Plaintiff having appealed the action of the prison’s adjustment committee. The notice of
disciplinary reduction does not explain the reason for the ARB’s action.
Under certain circumstances, an inmate punished with segregation may be able to pursue
a claim for deprivation of a liberty interest without due process of law. See Marion v. Columbia

Page 10 of 17

Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009). However, those circumstances are not present
in the instant case. First, Plaintiff does not describe any denial of procedural due process in the
conduct of his disciplinary hearing over the April 2011 charges. See Wolff v. McDonnell, 418
U.S. 539, 563-69 (1974) (to satisfy due process concerns, inmate must be given advance written
notice of the charge, the right to appear before the hearing panel, the right to call witnesses if
prison safety allows, and a written statement of the reasons for the discipline imposed); Black v.
Lane, 22 F.3d 1395, 1402 (7th Cir. 1994) (disciplinary decision must be supported by “some
evidence”). In fact, the July 2011 decision to delete two of Plaintiff’s disciplinary infractions
and to reduce his segregation time from six months to one month, indicates that Plaintiff received
the due process he demanded, albeit not swiftly enough to prevent him from serving the extra 60
days.
Even if there had been a procedural flaw in the handling of the April 2011 disciplinary
charges, Plaintiff cannot now claim he was deprived of a protected liberty interest. An inmate
has a due process liberty interest in being in the general prison population only if the conditions
of his or her disciplinary confinement impose “atypical and significant hardship[s] . . . in relation
to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); see also
Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997) (in light of Sandin, “the right to litigate
disciplinary confinements has become vanishingly small”). For prisoners whose punishment
includes being put in disciplinary segregation, under Sandin, “the key comparison is between
disciplinary segregation and nondisciplinary segregation rather than between disciplinary
segregation and the general prison population.” Wagner, 128 F.3d at 1175.
The Seventh Circuit has elaborated two elements for determining whether disciplinary
segregation conditions impose atypical and significant hardships: “the combined import of the

Page 11 of 17

duration of the segregative confinement and the conditions endured by the prisoner during that
period.” Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009) (emphasis in
original). The first prong of this two-part analysis focuses solely on the duration of disciplinary
segregation. For relatively short periods of disciplinary segregation, inquiry into specific
conditions of confinement is unnecessary. See Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005)
(56 days); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997) (70 days) (“a relatively short
period when one considers his 12 year prison sentence”). In these cases, the short duration of the
disciplinary segregation forecloses any due process liberty interest regardless of the conditions.
See Marion, 559 F.3d at 698 (“we have affirmed dismissal without requiring a factual inquiry
into the conditions of confinement”).
In Plaintiff’s case, he was confined in segregation only 60 days longer than he should
have been. In the context of Plaintiff’s total sentence of 80 years, this amount of time does not
trigger due process concerns. See Marion, 559 F.3d at 697-98 n.2 (70-day segregation period is
“relatively short” in the context of a 12-year prison sentence, citing Thomas v. Ramos, 130 F.3d
754, 761 (7th Cir. 1997)). More to the point, Plaintiff raises no complaints regarding the
conditions under which he was held in segregation. Accordingly, the claim in Count 6 shall be
dismissed with prejudice.
Count 7 - Due Process/Confrontation Clause - September 2013 Disciplinary Charges
Plaintiff suggests that there could have been a denial of due process in that he may not
have been allowed to call witness(es) in his defense during the disciplinary hearing over these
charges (fighting, dangerous disturbance, and dangerous contraband). However, his complaint is
not clear on this point (Doc. 1, pp. 5-6). Plaintiff also does not plainly state the duration of the
segregation or any other punishments he may have received as a result of the disciplinary action.

Page 12 of 17

Again, his statement of claim does not identify which prison officials conducted the hearing or
imposed the punishment. For these reasons, he fails to state a claim upon which relief may be
granted as to his due process claim, and this portion of Count 7 shall be dismissed without
prejudice.
As for the confrontation clause claim regarding the confidential informant(s), prison
disciplinary proceedings are not required to conform to the same rules that apply in the context
of a criminal trial. Concerns for institutional security and the safety of individual inmates dictate
the need for prison officials to protect the confidentiality of a prisoner who provides information
used in a disciplinary proceeding against another inmate. Thus, a prison adjustment committee
may consider statements obtained from a confidential informant without disclosing that
individual’s identity or allowing him to be questioned in the hearing. See Wolff v. McDonnell,
418 U.S. 539, 556 (1974) (“Prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such proceedings does not apply”);
Henderson v. United States Parole Comm’n, 13 F.3d 1073, 1078 (7th Cir. 1994) (in the context
of a prison disciplinary hearing, prisoners “do not possess Sixth Amendment rights to confront
and cross-examine witnesses”). Accordingly, Plaintiff has no viable claim for his inability to
confront the confidential informant(s), and this portion of Count 7 shall be dismissed with
prejudice.
Count 8 – Restitution for Federal Conviction
The taking of funds from Plaintiff’s inmate trust account, regardless of the reason, will
not give rise to a constitutional claim in federal court. See Hudson v. Palmer, 468 U.S. 517, 53036 (1984) (availability of damages remedy in state claims court to address the taking of a
prisoner’s property is an adequate, post-deprivation remedy; prisoner cannot maintain a federal

Page 13 of 17

civil rights claim for deprivation of property).
In this case, it would appear that if Plaintiff is entitled to any relief for what he believes to
be an improper withdrawal of his funds, he must seek it in the court where he was convicted and
which ordered him to pay restitution. This Court will not interfere in the execution of that
criminal judgment. The civil rights claim in Count 8 shall be dismissed with prejudice.
Count 9 – Failure to Provide Hygiene Supplies
Plaintiff alleges that for “weeks at a time” he has not received state-issued soap,
toothbrushes, toothpaste, and shampoo. This brief statement does not suffice to state a viable
constitutional claim.
No constitutional principle requires that inmates be permitted to own or receive hygiene
items for the sake of owning cosmetics, but the deprivation of essential items may leave a
prisoner exposed to the elements, or unable to care for his most fundamental needs, and thereby
put his health in jeopardy and at that point, a constitutional right may be implicated. In Harris v.
Fleming, 839 F.2d 1232 (7th Cir. 1988), the Seventh Circuit considered an inmate’s claim that he
was denied toilet paper for five days and denied soap, a toothbrush and toothpaste for ten days,
while “he was kept in a filthy, roach-infested cell.” Id. at 1234. The Circuit noted that
“[i]nmates cannot expect the amenities, conveniences and services of a good hotel; however, the
society they once abused is obliged to provide constitutionally adequate confinement.” Id. at
1235-36. The Circuit then noted that “[a]lthough Harris experienced considerable
unpleasantness, he suffered no physical harm,” id. at 1235, and found that the conditions simply
did not rise to the level of an Eighth Amendment violation.
The plaintiff in Harris spent ten days without his hygiene items. By contrast, Plaintiff’s
brief allegation as to the infrequency of receiving supplies does not state that he ever actually had

Page 14 of 17

to do without hygiene items, and he gives the Court no reason to believe he endured conditions
similar to those in Harris for even a full day. Accordingly, Count 9 shall be dismissed without
prejudice.
Amendment of the Complaint
In order to proceed on his claims in Counts 2, 5, and 10, Plaintiff must submit an
amended complaint that includes all relevant factual allegations to support each claim, identifies
which Defendants were involved in which of the claims, and indicates when the incidents in
Counts 2, 5, and 10 occurred. This pleading shall be designated as the First Amended
Complaint.
Plaintiff is advised that an amended complaint supersedes and replaces the original
complaint, rendering the original complaint void. See Flannery v. Recording Indus. Ass’n of
Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to
the original complaint. Thus, the First Amended Complaint must stand on its own, without
reference to any other pleading. Should the First Amended Complaint not conform to these
requirements, it shall be stricken. Plaintiff must also re-file any exhibits he wishes the Court to
consider along with the First Amended Complaint. Failure to file an amended complaint shall
result in the dismissal of this action with prejudice. Such dismissal shall count as one of
Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
Plaintiff is further advised that the amended complaint will be subject to merits review
under § 1915A. Plaintiff shall also note that if any of the claims in Counts 2, 5, and 10 prove to
be unrelated to one another and involve different Defendants, they may be subject to severance
under George v. Smith, 507 F.3d 605 (7th Cir. 2007) (unrelated claims against different
defendants belong in separate lawsuits).

Page 15 of 17

Because the claims in Counts 3, 4, and 9, as well as the due process portion of the claim
in Count 7 shall be dismissed without prejudice, Plaintiff may attempt to correct the deficiencies
in these claims either by re-pleading them in the First Amended Complaint, or by bringing the
claims in separate action(s). However, any unrelated claims shall be severed, and additional
filing fees shall be assessed.
The claims in Counts 1, 6, and 8, and the confrontation clause portion of the claim in
Count 7, shall be dismissed with prejudice. If Plaintiff attempts to revive these claims in his
First Amended Complaint, it shall be stricken and this action may be subject to dismissal for
failure to comply with an order of this Court. See FED. R. CIV. P. 41(b).
Pending Motion
Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) shall be addressed in a
separate order. Plaintiff must timely comply with the order at Doc. 4 to provide the required
inmate trust fund account statement(s).
Disposition
COUNTS 3, 4, and 9 are DISMISSED without prejudice for failure to state a claim
upon which relief may be granted. COUNTS 1, 6, and 8 are DISMISSED with prejudice for
failure to state a claim upon which relief may be granted. COUNT 7 is also DISMISSED; the
due process portion is dismissed without prejudice, but the confrontation clause portion is
dismissed with prejudice. COUNTS 11 and 12 are DISMISSED FROM THIS ACTION
without prejudice to those claims being considered in Plaintiff’s other pending case in this Court,
Butler, Bell, and Brown v. Harrington, et al., Case No. 13-cv-1285-MJR (filed Dec. 13, 2013).
IT IS FURTHER ORDERED that, should he wish to proceed with the claims in
COUNTS 2, 5, and/or 10, Plaintiff shall file his First Amended Complaint, in accordance with

Page 16 of 17

the instructions above, within 35 days of the entry of this order (on or before February 13,
2014).
No service shall be ordered on any Defendant until after the Court completes its § 1915A
review of the First Amended Complaint.
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
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: January 9, 2014
s/J. Phil Gilbert
United States District Judge

Page 17 of 17