Flores v. Harrington et al

Filing 4

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), Plaintiff's motion for TRO (contained within the complaint) is hereby REFERRED to United States Magistrate Judge Philip M. Frazier, who shall resolve the request for injunctive relief as soon as practicable, and issue a report and recommendation. Signed by Judge J. Phil Gilbert on 5/2/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER FLORES,
No. M36286,
Plaintiff,
vs.
RICHARD HARRINGTON,
SGT. PELKER,
C/O HOLLAND,
C/O MEZO, and
JOHN DOES,
Defendants.

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Case No. 14-cv-00503-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Christopher Flores, an inmate in Menard Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on prison
officials broadcasting that Plaintiff is a child molester, thereby causing Plaintiff to be harassed,
threatened and physically attacked by other inmates. It is also alleged that an unidentified prison
guard “saturated” Plaintiff with a chemical agent as Plaintiff lay injured.
Plaintiff asserts that his life is in imminent danger and he prays for injunctive relief as
soon as possible, and any other relief deemed appropriate. The Court construes the complaint as
including a motion for a temporary restraining order (“TRO”).
The complaint was drafted with the assistance of another inmate and contains a request
for counsel. The complaint explains that Plaintiff is incapable of pursuing any relief on his own;
Plaintiff is taking psychotropic medication and he recently attempted suicide.

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The Court will simultaneously consider Plaintiff’s motion for a TRO and perform 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
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, Plaintiff, who is a convicted child molester, was sexually
attacked while housed at Pinckneyville Correctional Center and subsequently transferred to
Menard Correctional Center in March 2014.

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All defendants, Warden Richard Harrington1, Sgt. Pelker, C/O Holland, C/O Mezo and
“John Does” allegedly publicized that Plaintiff is a child molester, thereby inviting inmates to
assault Plaintiff.
More specifically, it is alleged that on April 22, 2014, C/O Holland and C/O Mezo told
inmate Carney that Plaintiff is a child molester. That same day, Carney beat Plaintiff. As
Plaintiff lay injured, “John Doe” defendants “saturated” Plaintiff with a chemical agent.
On April 30, Sgt. Pelker and C/O Mezo appeared at Plaintiff’s cell and announced that
they were moving him to a different cell. Plaintiff asked to speak to the Crisis Team. Plaintiff
then attempted to hang himself with a bed sheet, right in front of Pelker and Menzo. Pelker and
Mezo proceeded to move Plaintiff from 4 Gallery to 2 Gallery, announcing for all to hear that
they were moving a child molester to Gallery 2. Inmates then began to shout death threats at
Plaintiff.
Plaintiff was moved into a cell with inmate Widmer. Inmates admonished Widmer not to
allow a child molester to be celled with him. Plaintiff declared a hunger strike in order to get
moved from that cell.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into two counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
designation of these counts does not constitute an opinion as to their merit.
Count 1: All Defendants publicized that Plaintiff is a child molester thereby
placing Plaintiff in physical danger, in violation of the Eighth
Amendment; and
Count 2: “John Doe” defendants saturated Plaintiff with chemical agents as
he lay injured, in violation of the Eighth Amendment.
1

On or about April 16, 2014, Kim Butler replaced Richard Harrington as warden of Menard
Correctional Center.
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The

Discussion
Although only notice pleading is required under Federal Rule of Civil Procedure 8(a) and
Bell Atlantic Corp. v. Twombly, an understanding of the relevant constitutional principles is
helpful.
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment. See also Berry v. Peterman, 604 F.3d 435, 439 (7th
Cir. 2010). The intentional use of excessive force by prison guards against an inmate without
penological justification constitutes cruel and unusual punishment. See Wilkins v. Gaddy, 559
U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). Also, allegations that a
prison official placed an inmate’s safety at risk by labeling him, for example, a snitch, which
then resulted in physical injury, can state a colorable Eighth Amendment claim. See Saunders v.
Tourville, 2004 WL 874781 at 1 (7th Cir. April 19, 2004) citing Babcock v. White, 102 F.3d 267,
272 (7th Cir. 1996). See also Irving v. Dormire, 519 F.3d 441, 449 (8th Cir. 2008) (officer’s
attempt to have other inmates attack plaintiff may violate Eighth Amendment, even where the
plaintiff was not actually assaulted); Northington v. Jackson, 973 F.2d 1518, 1525 (10th
Cir.1992) (Eighth Amendment claim stated where guard labeled prisoner a snitch with the
intention to do harm by inciting inmates). Consequently, Counts 1 and 2 state colorable
constitutional claims. However, that does not end the Court’s analysis.
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).

See also Herzog v. Village of Winnetka, 309 F.3d 1041,

1044 (7th Cir. 2002) (causation is an element of a Section 1983 claim). Merely naming a

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defendant in the caption is insufficient to state a claim. See Collins v. Kibort, 143 F.3d 331, 334
(7th Cir. 1998). Beyond the general assertion that all defendants published that Plaintiff was a
child molester, there is nothing in the complaint to suggest the personal involvement of Warden
Harrington or “John Doe” defendants in labeling Plaintiff. Therefore, Harrington and the “John
Doe” defendants will be dismissed without prejudice from Count 1. Warden Harrington shall be
dismissed as a defendant because no claims remain against him.
Counts 1 and 2 shall otherwise proceed. Of course, the complaint will ultimately have to
be amended to identify the “John Doe” defendants involved in Count 2.
Regarding the prayer for relief, the Court observes that only injunctive relief is
specifically sought; Plaintiff otherwise generally requests all appropriate relief.

The Court

construes the complaint as seeking compensatory—monetary—damages against the defendants
in their personal capacities, as the Eleventh Amendment bars claims for monetary damages from
the state and its agents. Because the warden, in his official capacity, is responsible for ensuring
the injunctive relief is carried out (even if there are no other claims of involvement in the events
at issue), and Warden Harrington has left Menard, the current warden, Kim Butler will be added
as a defendant, but only in her official capacity for purposes of injunctive relief. See Gonzalez v.
Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Plaintiff must otherwise amend the complaint if,
for example, he desires punitive damages.
Finally, insofar as the complaint describes Plaintiff requesting to speak to the Crisis Team
and attempting to hang himself in front of Sgt. Pelker and C/O Mezo, only a spontaneous suicide
attempt is described, not deliberate indifference.

If an Eighth Amendment deliberate

indifference claim was intended, it should be considered dismissed without prejudice.

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Temporary Restraining Order
A temporary restraining order (“TRO”) is an order issued without notice to the party to
be enjoined that may last no more than 14 days. FED. R. CIV. P. 65(b)(2). A TRO may issue
without notice only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B) the movant=s
attorney certifies in writing any efforts made to give notice and the reasons
why it should not be required.
FED.R.CIV.P. 65(b)(1). Such injunctive relief is also warranted “to prevent a substantial risk of
serious injury from ripening into actual harm.” Farmerv. Brennan, 511 U.S. 825, 845 (1994).
The allegations in the complaint present a substantial risk of additional harm to Plaintiff.
The Court, however, is unaware of Plaintiff’s present situation, since he was moved from the cell
he shared with inmate Widmer. Additional information is needed, so the Court will enlist a
magistrate judge to further assess the need for a TRO and the scope of any such order.
As stated above, the new warden of Menard Correctional Center, Kim Butler, shall be
added as a defendant to this action for the sole purpose of addressing the request for injunctive
relief.
Counsel
Insofar as the complaint describes Plaintiff as unable to advocate for himself, the Court
construes the complaint as presenting a motion for recruitment of counsel. That motion also
shall be referred to the magistrate judge for consideration.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, RICHARD HARRINGTON
is DISMISSED without prejudice from Count 1 and from this action.

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IT IS FURTHER ORDERED that the “JOHN DOE” defendants are DISMISSED
without prejudice from Count 1.
IT IS FURTHER ORDERED that all official capacity claims against SGT. PELKER,
C/O HOLLAND, C/O MEZO and the “JOHN DOE” defendants are DISMISSED, but they
shall remains as defendants in their individual capacities.
IT IS FURTHER ORDERED that KIM BUTLER, the newly named warden of
Menard Correctional Center, is ADDED as a defendant, but only in her official capacity for
purposes of injunctive relief.
IT IS FURTHER ORDERED that COUNT 1 shall otherwise PROCEED against
SGT. PELKER, C/O HOLLAND, C/O MEZO, and COUNT 2 shall proceed against the
“JOHN DOE” defendants (ultimately contingent upon their identification).
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 72.1(c), Plaintiff’s motion for TRO (contained within the complaint) is hereby
REFERRED to United States Magistrate Judge Philip M. Frazier, who shall resolve the request
for injunctive relief as soon as practicable, and issue a report and recommendation. The period
for filing any objections to the report and recommendation shall not exceed 14 days from the
date of the report. If the magistrate judge concludes that more immediate action is necessary, he
shall contact the undersigned district judge and/or adjust the response period accordingly. Any
motions filed after the date of this Order that relate to the request for injunctive relief or seek
leave to amend the complaint are also hereby REFERRED to Magistrate Judge Philip M.
Frazier.
IT IS HEREBY ORDERED that, because the TRO issue is pressing and for the
convenience of the Court, the Clerk of Court shall prepare all necessary documents for personal

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service upon WARDEN KIM BUTLER at Menard Correctional Center, and the United States
Marshal for this judicial district shall effect personal service of summons and the complaint upon
Butler as soon as practicable. Service shall be at government expense.
The Clerk of Court shall prepare for Defendants SGT. PELKER, C/O HOLLAND, C/O
MEZO: (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. The complaint will not be served upon the “JOHN DOE” defendants
until such time as the complaint is amended to identify those defendants.
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
true and correct copy of the document was served on Defendants or counsel. Any paper received

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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, including the motion for recruitment of
counsel contained in the complaint, 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 any application to proceed in forma pauperis may have been granted. See 28 U.S.C. §
1915(f)(2)(A).
Plaintiff is ADVISED that at the time of any application 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 will have been 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

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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 2, 2014
s/J. Phil Gilbert_____________
United States District Judge

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