Harris v. Butler et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, granting 4 MOTION to Amend/Correct 1 Complaint filed by Larry G Harris. See attached order for details. (Action due by 6/27/2014). Signed by Judge J. Phil Gilbert on 5/23/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY HARRIS, #N-57672
Plaintiff,
vs.
KIM BUTLER, R. HARRINGTON,
SANDRA FUNK, LOYD HANNA,
JIM WINTERS, UNKNOWN WARDEN,
WARDEN FLAGG, DR. SHEARING,
SUSANNE GRISWALD-BAILEY, and
M. ATCHISON
Defendants.

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Case No. 14-cv-00498-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Larry Harris, an inmate currently incarcerated at Menard Correctional Center
(“Menard”), brings this pro se civil rights action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983. Plaintiff contends that Defendants conspired against him when
they transferred him from a medium security prison to a maximum security prison in retaliation
for his history of litigation against the Illinois Department of Corrections (“IDOC”). In addition
to the transfer, Plaintiff alleges that Defendants took other retaliatory actions, such as denying
him access to his regular no-soy diet and limiting his commissary privileges, in an attempt to
deter him from further exercising his First Amendment rights. Plaintiff prays for monetary
damages and injunctive relief.
On April 30, 2014, Plaintiff filed a complaint setting forth his claims. (Doc. 1). Due to
technical issues out of Plaintiff’s control, some pages of the complaint were missing. On May
16, 2014, prior to this Court’s preliminary review, Plaintiff filed a motion to amend the
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complaint. (Doc. 4). Subsequently, an amended complaint (Doc. 5) was filed. The Court
GRANTS Plaintiff’s motion to amend the complaint. (Doc. 4).

The amended complaint

supersedes and replaces the original complaint. See Flannery v. Recording Indus. Ass’n of Am.,
354 F.3d 632, 638 n.1 (7th Cir. 2004) (citing Fuhrer v. Fuhrer, 292 F.2d 140, 144 (7th Cir.
1961)).
The amended complaint is now before the Court for a preliminary review pursuant to 28
U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner complaints
to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any
portion of the amended complaint that is legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).
The Complaint
Prior to June 2013, Plaintiff was housed at Lawrence Correctional Center, a mediumsecurity prison. (Doc. 5, p. 5-A).

On June 5, 2013, Plaintiff was transferred to Centralia

Correctional Center (“Centralia”), another medium-security prison, pursuant to a court writ order
in another pending lawsuit (Harris v. Allen, 10-596-MJR). Plaintiff was initially transferred so
that he could be present for the trial in that case on June 11, 2013 in the federal courthouse in
East St. Louis, Illinois. However, on June 7, 2013, before the trial even began, Plaintiff was
transferred to Menard, a maximum-security prison. Plaintiff contends that Centralia Warden
“John Doe”1 and Centralia Operations Warden Flagg arranged for Plaintiff to be transferred to
Menard, a maximum-security prison, in retaliation for Plaintiff’s request for his medically1

While Plaintiff has not provided the name of this defendant, the Seventh Circuit has held that where a prisoner’s
complaint states specific allegations describing conduct of individual prison staff members sufficient to raise a
constitutional claim, but the names of those defendants are not known, the prisoner should have the opportunity to
engage in limited discovery to ascertain the identity of those defendants. Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 832 (7th Cir. 2009).
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prescribed no-soy diet, which he had been given in yet another pending lawsuit (Harris v.
Brown, 07-3225-HAB). (Doc. 5, p. 5-A). According to the amended complaint, Plaintiff has a
lengthy and ongoing history of litigation against prison officials employed by the Illinois
Department of Corrections (“IDOC”).2
Plaintiff’s trial in Harris v. Allen concluded on June 11, 2013. However, Plaintiff did not
return to Lawrence. Instead, Plaintiff contends that Defendant Atchison (Deputy Director)
devised a plan to have the “jailhouse lawyers,” including Plaintiff, transferred from mediumsecurity to maximum-security prisons in an attempt to discourage them from filing future prison
litigation.

(Doc. 5, p. 5-D).

To this end, Defendants Atchison, Funk (IDOC Transfer

Coordinator), Harrington (Warden at Menard), and Butler (Warden at Menard) conspired and
placed Plaintiff in administrative detention in the North Two Segregation Unit, a maximumsecurity unit at Menard, from June 7, 2013 until January 17, 2014. (Doc. 5, p. 5-B). At the time
the amended complaint was filed, Plaintiff remained at Menard, despite his classification as a
medium-security prisoner. Id. Plaintiff maintains that there was no disciplinary reason for him to
be transferred to a maximum-security facility; instead, he alleges that the transfer was retaliatory
and intended to deter him from engaging in present and future activity protected by the First
Amendment (namely, civil rights litigation aimed at prison officials).
In addition to the retaliatory transfer, Plaintiff asserts that he has been subjected to a
number of harsh conditions and denied certain privileges in furtherance of the retaliation scheme.
Specifically, Plaintiff claims that Defendants Harrington and Butler have imposed a seventy-five
dollar commissary purchase limit on him and they allow him only two visits to the commissary

2

For purposes of his retaliation claim, Plaintiff asserts that Defendants have retaliated against him for filing the
following civil rights cases in federal court: Harris v. Ryker, 11-648-MJR-DGW (S.D. Ill.); Harris v. Hodge, 11973-JPG-PMF (S.D. Ill.); Harris v. J.R. Walls, 11-03074-CSB-BGC (C.D. Ill.); and Harris v. Brown, 7-3225-HABDGB (C.D. Ill.).
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each month. (Doc. 5, p. 5-D). Plaintiff has lost his right to use a typewriter, as well as yard,
shower, exercise, phone, and visiting privileges. Id. Plaintiff maintains that these actions have
not been taken in connection to any disciplinary charges.
Moreover, Plaintiff asserts that Dr. Shearing refused to give Plaintiff his medically
prescribed no-soy diet from June 7, 2013 to July 25, 2013, which caused Plaintiff to lose over 30
pounds. (Doc. 5, p. 5-C). Plaintiff maintains that Susanne Griswold-Bailey (Dietary Manager)
has also refused Plaintiff’s request for a no-soy diet, and she has allowed Defendants Hanna and
Winters to withhold meat from Plaintiff. Dr. Shearing also refused to provide Plaintiff with a
low bunk permit, as well as medicines Plaintiff was previously prescribed to treat a rash on
Plaintiff’s face. Plaintiff contends that these actions, too, were taken in an attempt to retaliate
against Plaintiff for his participation in litigation against IDOC. (Doc. 5, p. 5-D).
Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
finds it appropriate to organize the claims in Plaintiff’s pro se amended complaint, as shown
below. 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:

Retaliation

Accepting Plaintiff’s allegations as true, as the Court must do at this preliminary stage,
the Court finds that Plaintiff has articulated a colorable retaliation claim against all Defendants.
Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680 F.3d 859,

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866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000). To state a claim of retaliation “[a]ll that need be specified is the bare
minimum facts necessary to put the defendant on notice of the claim so that he can file an
answer.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). Naming the suit and the act of
retaliation is all that is necessary to state a claim of improper retaliation. Id.
Plaintiff asserts that he was transferred to a maximum-security unit, denied a medicallyprescribed no-soy diet, subjected to harsh prison conditions, and denied certain privileges (i.e., a
typewriter, commissary privileges) in retaliation for filing lawsuits against prison officials.
These retaliatory actions, he contends, violated his rights under the First Amendment. Even if
these allegations would not be actionable in and of themselves, if the acts were taken in
retaliation for the exercise of a constitutionally protected right, then they are actionable under §
1983. See Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009) (discussing Howland v. Kilquist,
833 F.2d 639, 644 (7th Cir. 1987) ("[A]n act in retaliation for the exercise of a constitutionally
protected right is actionable under Section 1983 even if the act, when taken for different reasons,
would have been proper.")); see also Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996) (per
curiam) (retaliatory transfer of a prisoner); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996)
(retaliatory delay in transferring prisoner); Cornell v. Woods, 69 F.3d 1383, 1389 (8th Cir. 1995)
(retaliatory discipline).
At issue here is whether Plaintiff experienced an adverse action that would likely deter
First Amendment activity in the future, and if the First Amendment activity was “at least a
motivating factor” in the Defendants’ decision to take the retaliatory action. Bridges v. Gilbert,
557 F.3d 541, 551 (7th Cir. 2009). This is a question that cannot be resolved at the pleadings
stage of this case. Thus, Plaintiff may proceed on his retaliation claim against all Defendants at

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this time.
Count 2:

Conspiracy

Likewise, the Court finds it would be premature to dismiss Plaintiff’s claim that
Defendants engaged in a conspiracy to retaliate against him. See Lewis v. Washington, 300 F.3d
829, 831 (7th Cir. 2002) (recognizing conspiracy claim under § 1983). “[I]t is enough in pleading
a conspiracy merely to indicate the parties, general purpose, and approximate date . . . .” Walker
v. Thompson, 288 F.3d 1005, 1007-08 (7th Cir. 2002). See also Hoskins v. Poelstra, 320 F.3d
761, 764 (7th Cir. 2003); Tierney v. Vahle, 304 F.3d 734, 740 (7th Cir. 2002). This claim against
all Defendants shall also receive further consideration.
Count 3:

Deliberate Indifference to Serious Medical Needs

To establish an Eighth Amendment medical needs claim, Plaintiff must show that: (1) the
medical condition was objectively serious; and (2) the state officials acted with deliberate
indifference to his medical needs. See Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000).
The amended complaint satisfies the objective prong of this test. The Seventh Circuit has
held that a medical need is objectively “serious” where it has either “been diagnosed by a
physician as mandating treatment” or where the need is “so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997). Plaintiff has been prescribed a no-soy diet for medical reasons. (Doc. 5, Ex. C,
p. 3). The amended complaint alleges that since his transfer to Menard, Plaintiff has been denied
a no-soy diet at various times, including June 7, 2013 to July 25, 2103. Id. As a result, Plaintiff
lost over 30 pounds. These allegations meet the threshold requirement for a “serious” medical
need.

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The amended complaint also satisfies the subjective component of an Eighth Amendment
medical needs claim against Defendants Butler, Harrington, Hanna, Winters, Griswald-Bailey,
and Shearing, but not Defendants Funk, Centralia Warden “John Doe,” and Warden Flagg.
To establish deliberate indifference, a plaintiff “must demonstrate that prison officials acted with
a “‘sufficiently culpable state of mind.’” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)
(quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). Officials must “know of and disregard an
excessive risk to inmate health” by being “‘aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists’” and “‘draw[ing] the inference.’”
Greeno, 414 F.3d at 653 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The amended
complaint suggests that Defendants Butler, Harrington, Hanna, Winters, Griswald-Bailey, and
Shearing all knew of, but deliberately disregarded Plaintiff’s medical need for a no-soy diet.
These allegations are sufficient to state an Eighth Amendment medical needs claim against all of
these defendants at this early stage in litigation. Plaintiff, however, does not allege any facts
suggesting that Defendants Funk, Centralia Warden “John Doe,” and Centralia Warden Flagg
took part in denying Plaintiff a no-soy diet. Therefore, Plaintiff may not proceed on Count 3
against these defendants.
Count 4:

Due Process Violation

Finally, Plaintiff claims that Defendants Harrington, Butler, and Funk denied him due
process of law when they arbitrarily took away various privileges and imposed certain
restrictions on him. It is unclear from the complaint whether Plaintiff raises these due process
allegations in support of his retaliation claim or as a separate and independent claim. Although
this claim may later be folded into the retaliation claim, the Court will treat it now as an
independent claim.

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“The Fourteenth Amendment's Due Process Clause protects persons against deprivations
of life, liberty, or property; and those who seek to invoke its procedural protection must establish
that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In the
present case, while not explicit, Plaintiff seems to be asserting that the conditions of his
confinement are so harsh that they amount to a deprivation of liberty. The United States
Supreme Court has stated, “the inquiry into the existence of a protected, state-created liberty
interest in avoiding restrictive conditions of confinement” turns on an examination of the “nature
of those conditions themselves ‘in relation to the ordinary incidents of prison life.’” Id. at 223
(citation omitted).
According to the amended complaint, Plaintiff was placed in administrative segregation
at Menard for seven months and ten days. In Townsend, the Seventh Circuit stated that “inmates
have no liberty interest in avoiding transfer to discretionary segregation-that is, segregation
imposed for administrative, protective, or investigative purposes.”

Marion v. Columbia

Correction Inst., 559 F.3d 693, 697 (7th Cir. 2009) (quoting Townsend v. Fuchs, 522 F.3d 765,
766, 771 (7th Cir.2008)). But the court in Marion went on to distinguish Townsend because it
involved “relatively short periods of segregation.” Marion, 559 F.3d at 697. The court in Marion
went on to note that “a liberty interest may arise if the length of segregated confinement is
substantial and the record reveals that the conditions of confinement are unusually harsh.”
Marion, 559 F.3d at 697-98 (7th Cir. 2009) (collecting cases). The court concluded that a term
of 240 days of segregation may implicate liberty interests and remanded the case for further
scrutiny of the actual conditions of confinement. Id. at 698-99. Plaintiff alleges that he was
placed in segregation for approximately 220 days. He also claims that he was subjected to harsh
conditions of confinement. At this stage, more facts are necessary to determine whether Plaintiff

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has a liberty interest implicated by the due process clause. Therefore, dismissal of Plaintiff’s due
process claims against Defendants Harrington, Butler, and Funk would be inappropriate at this
stage.
In summary, Plaintiff may proceed on his retaliation claim (Count 1) and conspiracy
claim (Count 2) against all Defendants. Plaintiff may proceed on his medical needs claim (Count
3), but only against Defendants Butler, Harrington, Hanna, Winters, Griswald-Bailey, and
Shearing. Plaintiff may also proceed on his due process claim (Count 4) against Defendants
Harrington, Butler, and Funk. Because Plaintiff is also seeking injunctive relief, Defendant
Butler shall also remain in her official capacity as current warden of Menard. 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 Motion
Plaintiff’s motion to amend the complaint (Doc. 4) is GRANTED.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s claim for damages against Defendants
BUTLER, HARRINGTON, FUNK, HANNA, WINTERS, CENTRALIA WARDEN
“JOHN DOE,” FLAGG, SHEARING, GRISWALD-BAILEY, and ATCHISON on
COUNTS 1 and 2 shall proceed.
IT IS FURTHER ORDERED that Plaintiff may proceed on his claim for damages on
COUNT 3, but only against Defendants BUTLER, HARRINGTON, HANNA, WINTERS,
GRISWALD-BAILEY, and SHEARING and COUNT 4, but only against Defendants
HARRINGTON, BUTLER, and FUNK.

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For purposes of injunctive relief, Defendant BUTLER shall also remain in her official
capacity as current warden of Menard.
Plaintiff has not sought or been granted leave to proceed in forma pauperis in this action,
therefore, the Court will not automatically appoint the United States Marshal to effect service of
process upon Defendants. However, if Plaintiff desires to request the appointment of the United
States Marshal to serve process on the Defendants, Plaintiff shall file a motion for service of
process at government expense, within 35 days of the date of entry of this order (on or before
June 27, 2014). The Clerk of Court is DIRECTED to mail to Plaintiff the Court’s Pro Se
Litigant Guide, containing forms and instructions for filing said motion.
If Plaintiff does not timely file a motion for service of process at government expense, it
shall be Plaintiff’s responsibility to have all Defendants served with a summons and a copy of
the complaint pursuant to Federal Rule of Civil Procedure 4. Plaintiff is advised that only a nonparty may serve a summons. FED. R. CIV. P. 4(c)(2).
If Plaintiff requests the appointment of the United States Marshal, the Clerk of Court
shall prepare a summons and copies of the complaint and this Memorandum and Order for each
Defendant, and shall forward the same to the United States Marshal for service. If Plaintiff does
not file a motion for service of process at government expense within 35 days as ordered, the
Clerk shall then prepare a summons for each Defendant, and shall forward the summonses and
sufficient copies (modify if only one defendant) of the complaint and this Memorandum and
Order to Plaintiff so that he may have Defendants served. Plaintiff is further advised that
service shall not be made on the John Doe Defendant until such time as Plaintiff has identified
the John Doe Defendant by name in a properly filed amended complaint. Plaintiff is ADVISED
that it is Plaintiff’s responsibility to provide the Court with the name and service address of this

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individual.
Plaintiff is ORDERED to serve upon Defendants or, if an appearance has been entered
by counsel, upon that attorney, a copy of every pleading or other document submitted for
consideration by this Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date that a true and correct copy of the document was mailed to each defendant or
defendant’s counsel. Any paper received by a district judge or magistrate judge which has not
been filed with the Clerk or which fails to include a certificate of service will be disregarded by
the Court.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be
found at the work address provided by Plaintiff, if the United States Marshal is appointed to
serve process pursuant to a motion by Plaintiff, the employer shall furnish the United States
Marshal with the Defendant’s current work address, or, if not known, the Defendant’s lastknown address. This information shall be used only for effecting service of process. Any
documentation of the address shall be retained only by the Marshal. Address information shall
not be maintained in the court file or disclosed by the Marshal.
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 Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Frazier for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court

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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: May 23, 2014
s/ J. Phil Gilbert
United States District Judge

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