Fields v. Lashbrook et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge Michael J. Reagan on 4/2/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WALTER FIELDS,
No. N62102,

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

Plaintiff,
vs.
JACQUELINE A. LASHBROOK,
J. KEMPFER,
M. PHOENIX, and
C/O DAVIS,
Defendants.

Case No. 14-cv-00318-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Walter Fields, an inmate in Menard Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on several incidents
related to the conditions of his confinement.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, which 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). Frivolousness is an objective standard that refers
Page 1 of 10

to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). 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.

At this juncture, the factual

allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
According to the complaint, on January 21, 2013, Plaintiff was subjected to an
unjustified, invasive body cavity search.

Who authorized or conducted the search is not

revealed. An unidentified guard and Assistant Warden of Programs Lashbrook then housed
Plaintiff in segregation cell 253, where the walls and floor were contaminated with feces, blood
and mold.

Lashbrook refused Plaintiff’s request for cleaning supplies, hygiene products, a

mattress and clothing. 1 Lashbrook also refused Plaintiff’s request for an inhaler for his asthma,
despite Plaintiff stating that he could die without it.
Between January 21st and 30th, Plaintiff asked C/O Kempfer and C/O Davis for cleaning
supplies, hygiene products, a mattress, clothing and an inhaler, to no avail. Kempfer and Davis
only hurled racial slurs at Plaintiff.
It is also alleged that Kempfer and Davis spread the word that inmate Jason Hall (the
inmate in the cell next to Plaintiff) was a snitch, in an effort to get Hall killed. In fact, Hall was
murdered on January 30, 2013. 2 When Assistant Warden Lashbrook questioned Plaintiff about
1

Plaintiff admits that he was given a jumpsuit one day later, but not his other clothes.

2

Because Plaintiff has no standing to sue for the endangerment of Hall’s life, no further
discussion of those events is necessary.
Page 2 of 10

Hall’s murder, Plaintiff refused to provide any information. Lashbrook retaliated by writing
Plaintiff a disciplinary report for impeding an investigation. Plaintiff further asserts that
Lashbrook was motivated by racial bias (Plaintiff is African American), and the fact that Plaintiff
was serving a life sentence. Although the Adjustment Committee convicted Plaintiff of that
offense, the conviction was later expunged (Doc. 1, pp. 14-16).
After Hall’s murder, Plaintiff was moved to cell 810 and then to cell 847, both of which
were filthy, contaminated with blood and feces. Plaintiff does not identify when he was moved,
or by whom. On April 11, 2013, Plaintiff complained to C/O Phoenix about the conditions of
cell 847. Phoenix denied Plaintiff’s request for cleaning supplies, hygiene products and asthma
medication.
As a result of the defendants’ failure to move Plaintiff to a sanitary cell, and their refusal
to give him cleaning supplies, clothing and medication, Plaintiff became ill, developing sores on
his feet and scalp, and experiencing stomach pain, headaches, loss of appetite and anxiety.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into six 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.
designation of these counts does not constitute an opinion as to their merit.
Count 1: Plaintiff was subjected to an unjustified, invasive body cavity
search, in violation of the Eighth Amendment;
Count 2: Assistant Warden Lashbrook housed Plaintiff in an unsanitary
cell, without a mattress and clothing, and refused Plaintiff’s
request for cleaning supplies, hygiene items, a mattress, clothing
and asthma medication, all in violation of the Eighth Amendment;
Count 3: C/O Kempfer and C/O Davis refused Plaintiff’s request for
cleaning supplies, hygiene products, a mattress, clothing and an
inhaler;

Page 3 of 10

The

Count 4: Assistant Warden Lashbrook issued a false disciplinary report in
retaliation for Plaintiff refusing to answer questions regarding a
murder;
Count 5: Plaintiff was moved to cell 810 and 847, both of which were
unsanitary, in violation of the Eighth Amendment; and
Count 6: C/O Phoenix refused Plaintiff’s request for cleaning supplies,
hygiene products and asthma medication.
Discussion
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832 (1970);
Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010). Counts 1-3 and 5-6 implicate the Eighth
Amendment.
Count 1
Count 1 pertains to Plaintiff being subjected to an unjustified, invasive body cavity
search.

The justification for, and manner of, a body cavity search can violate the Eighth

Amendment.

See generally Del Raine v. Williford, 32 F.3d 1024, 1039 (7th Cir. 1994).

However, Plaintiff has failed to identify who authorized and/or conducted the search. Therefore,
Count 1 will be dismissed without prejudice.
Counts 2, 3, 5 and 6
Counts 2, 3, 5 and 6 all pertain to the conditions of Plaintiff’s confinement and/or the
defendants’ failure to take action to remedy those conditions. Although comfortable prisons are
not constitutionally mandated, the conditions of confinement cannot deprive a prisoner of the
“minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 349
(1981).

Page 4 of 10

See, e.g., Johnson v. Pelker, 891 F.2d 136, 139–40 (7th Cir.1989) (prisoner held
for three days in segregation cell allegedly smeared with human feces and having
no running water); Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.1992)
(prisoner held in cell that allegedly was filthy and smelled of human waste, lacked
adequate heating, contained dirty bedding, and had “rusted out” toilets, no toilet
paper, and black worms in the drinking water); Isby v. Clark, 100 F.3d 502, 505–
06 (7th Cir.1996) (prisoner held in segregation cell that allegedly was “filthy, with
dried blood, feces, urine and food on the walls”); see also Gillis v. Litscher, 468
F.3d 488, 493 (7th Cir.2006) (explaining that prisons must provide “reasonably
adequate ventilation, sanitation, bedding, hygienic materials, and utilities”
(quotation marks and citation omitted)); DeSpain v. Uphoff, 264 F.3d 965, 974
(10th Cir.2001) (concluding that exposure to human waste, even for 36 hours,
would constitute sufficiently serious deprivation to violate Eighth Amendment).
Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007).
The conditions of the cell—the filth, lack of a mattress, lack of clothing and hygiene
supplies—described by Plaintiff fall within the ambit of Eighth Amendment protection. Prison
officials who are aware of such conditions and are deliberately indifferent may be subject to
liability under the Eighth Amendment. Rice ex rel. Rice v. Correctional Medical Services, 675
F.3d 650, 664-65 (7th Cir. 2012).
Similarly, the failure to get Plaintiff his inhaler states a colorable Eighth Amendment
claim at this early stage in the proceedings. Prison officials violate the Eighth Amendment’s
proscription against cruel and unusual punishment when their conduct demonstrates “deliberate
indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
A claim of deliberate indifference to a serious medical need contains both an objective and a
subjective component. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). To satisfy the
objective component, a prisoner must demonstrate that his medical condition is “objectively,
sufficiently serious.” Greeno, 414 F.3d at 653, citing Farmer v. Brennan, 511 U.S. 825, 834
(1994) (internal quotations omitted).

A serious medical condition is one “that has been

diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person

Page 5 of 10

would perceive the need for a doctor’s attention.” Edwards v. Snyder, 478 F.3d 827, 830–31
(7th Cir. 2007). “As a general matter, asthma ‘can be, and frequently is, a serious medical
condition, depending on the severity of the attacks.’” Lee v. Young, 533 F.3d 505, 510 (7th Cir.
2008) (quoting Board v. Farnham, 394 F.3d 469, 484 (7th Cir. 2005)). Relative to the subjective
requirement, Plaintiff told Lashbrook that he could die, yet she did nothing.

Relative to

Kempfer, Davis and Phoenix, the fact that Plaintiff told them he needed his inhaler satisfies the
notice pleading standard.
For the reasons stated, Counts 2, 3 and 6 shall proceed. However, Count 5 will be
dismissed without prejudice because Plaintiff has not identified who placed him in cells 810 and
847.
Count 4
Count 4 alleges that Assistant Warden Lashbrook issued a false disciplinary report in
retaliation for Plaintiff refusing to answer questions regarding the murder of inmate Hall.
Plaintiff further alleged that Lashbrook was motivated by racial prejudice and the fact that
Plaintiff is serving a life sentence.
“An act taken in retaliation for the exercise of a constitutionally protected right violates
the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000).

Although only “notice

pleading” is required under Federal Rule of Civil Procedure 8(a) and Twombly, it is helpful to
understand that to prevail on a First Amendment retaliation claim, a plaintiff must show that (1)
he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future; and (3) the First Amendment activity
was at least a motivating factor in the defendants’ decision to take the retaliatory action. Gomez
v. Randle, 680 F.3d 859, 866 (7th Cir. 2012).

Page 6 of 10

By its very text, the First Amendment protects “freedom of speech.” Count 4 may
initially appear to be frivolous, in that Plaintiff did not speak and his speech was clearly not
restricted by Assistant Warden Lashbrook. However, silence appears to be protected under the
First Amendment. “[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily
comprising the decision of both what to say and what not to say.” Glickman v. Wileman Bros. &
Elliott, Inc., 521 U.S. 457, 481 (1997) (quoting Riley v. National Federation of Blind of N.C.,
Inc., 487 U.S. 781, 796-97 (1988) (regarding a charity’s refusal to disclose information about
donors)). Plaintiff appears to be contending that Lashbrook was trying to compel him to snitch
about who killed inmate Hall. Had the disciplinary conviction not been expunged, Plaintiff
would have been demoted to C grade for one month, spent one month in segregation, and lost
one month of commissary privileges—which would likely deter one from remaining silent.
Therefore, at this juncture, Count 4 states a colorable constitutional claim. The Court offers no
opinion to likely defenses to this claim.
The allegations that Lashbrook was motivated by racial bias or the fact that Plaintiff is
serving a life sentence are, as pleaded, bald assertions with little or no factual underpinning.
Twombly requires that a claim be plausible, not merely possible. Therefore, claims premised
upon race and the length of Plaintiff’s sentence—whether under the Due Process Clause or Equal
Protection Clause of the Fourteenth Amendment—should be considered dismissed without
prejudice.

Page 7 of 10

Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNTS 1 and 5 are
DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNTS 2, 3, 4 and 6 shall otherwise PROCEED
against JACQUELINE A. LASHBROOK, J. KEMPFER, M. PHOENIX and C/O DAVIS.
The Clerk of Court shall prepare for Defendants JACQUELINE A. LASHBROOK, J.
KEMPFER, M. PHOENIX and C/O DAVIS: (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

Page 8 of 10

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 a United States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States Magistrate 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

Page 9 of 10

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: April 2, 2014
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

Page 10 of 10