Ollie v. Harrington et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 7/14/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT OLLIE,
No. B87455,
Plaintiff,
vs.
RICHARD HARRINGTON,
RYAN DAVIS,
TIMOTHY VEATH,
LT. ROBERT HUGHES,
LT. KEVIN RIECHERT,
C/O ALEX MOLL,
SGT. HEIMAN, and
LORI OAKLEY,
Defendants.

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Case No. 14-cv-00608-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Robert Ollie, an inmate currently housed in Pontiac Correctional Center
(“Pontiac”), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C.
§ 1983, based on events that occurred while he was at Menard Correctional Center (“Menard”).
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.
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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, on September 15, 2013, Plaintiff observed C/O Ryan Davis
treating an inmate in a neighboring cell in an “unprofessional manner,” yelling and cursing at the
inmate, and subsequently yelling and cursing at Plaintiff. C/O Davis threated that if Plaintiff did
not be quiet he would be sent to segregation. Plaintiff immediately began to draft a grievance
against Davis. When Davis saw what Plaintiff was doing, he threatened that he would put
Plaintiff somewhere where Plaintiff could not write grievances: behind steel doors. Plaintiff
then submitted a “kite”—a request to speak to an officer—regarding C/O Davis’s behavior. In
retaliation for the grievance and kite, C/O Davis, without explanation, ordered that Plaintiff be
taken to segregation.

Sgt. Heiman, C/O Moll and other guards then escorted Plaintiff to

segregation. When asked why, Heiman and Moll replied that they did not know, they were
merely ordered to take Plaintiff to segregation.
Plaintiff was taken to a segregation cell without bedding, and he was not given any
hygiene products for two days.

Later that evening, Plaintiff was served with what he
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characterizes as a “bogus, false and fabricated” disciplinary report lodged by C/O Davis.
Plaintiff asked the unidentified guard for a pen so he could write down witnesses he wanted to
call in his defense, but the guard ignored his request.
On September 17, 2013, Plaintiff appeared before Lt. Veath, chairman of the Adjustment
Committee, for a hearing on the disciplinary report issued by C/O Davis. Plaintiff pleaded not
guilty, arguing that the report was fabricated in retaliation for filing a grievance; he also
requested that witnesses be called. Lt. Veath denied the request for witnesses, noting that
witnesses had not been requested in advance. Veath was not swayed when Plaintiff explained
that he had been denied a pen and was, therefore, unable to make such a request. Plaintiff’s
request for a continuance was also denied. On September 18, 2013, Plaintiff was found guilty of
“intimidation or threats,” insolence, and disobeying a direct order, for which he received a sixmonth demotion to C grade, five months in segregation, and restricted commissary privileges for
six months (Doc. 1-2, p. 23). Plaintiff further asserts that he was deprived of phone privileges
and could not contact his attorney, which in turn deprived him of access to the courts (no
additional details are provided). As a result of this disciplinary conviction, Plaintiff was moved
to a segregation cell and “placed behind a steel door.”
Plaintiff filed an emergency grievance regarding his disciplinary conviction, but Warden
Harrington upheld the Adjustment Committee’s decision. Plaintiff characterizes Harrington’s
ruling as agreeing with the retaliation and the denial of due process.
On or about September 23, 2013, C/O Moll escorted Plaintiff in handcuffs past C/O
Davis. C/O Davis commented that he bet Plaintiff would not be filing any more grievances from
behind that steel door. Plaintiff then asked Sgt. Heiman to summon the shift lieutenant so that he
could complain about C/O Davis’s continued harassment. Davis then threatened Plaintiff again.

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Plaintiff immediately started drafting another grievance against C/O Davis. Davis in turn issued
another disciplinary ticket to Plaintiff, accusing Plaintiff of “intimidation and threats,” and
assault (Plaintiff running his shoulder into Davis as they passed on the gallery). Again, Plaintiff
asserts that the disciplinary ticket is unfounded.
On September 25, 2013, Plaintiff appeared before Lt. Veath, chairperson of the
Adjustment Committee. Veath refused Plaintiff’s request to view surveillance video that would
show that Davis’s allegations were false. Plaintiff’s request to call witnesses, including C/O
Moll and Sgt. Heiman, was denied. Plaintiff made separate requests for Lt. Riechert of Internal
Affairs to investigate and view the surveillance video, to no avail. On October 10, 2013,
Plaintiff appeared before the Adjustment Committee for a second hearing, at which time Lt.
Veath told Plaintiff that Sgt Heiman and others stated that they had not seen anything, and C/O
Moll had backed up C/O Davis’s allegations (see Doc. 1-2, p. 24 (summary of witness
interviews)). Plaintiff was found guilty of the disciplinary violations and punished by being
demoted to C grade for one year, being sent to segregation for one year, having his commissary
privileges restricted for one year, and losing contact visits for six months (see Doc. 1-2, p. 22).
Warden Harrington again approved the Adjustment Committee decision (id.).
Plaintiff filed a grievance taking issue with his second disciplinary conviction, but the
grievance was denied by Warden Harrington, along with “Grievance Officer” Oakley (who
works as a Clinical Services Counselor). Plaintiff contends Harington and Oakley thereby
agreed with—condoned—the retaliatory and false disciplinary report issued by C/O Davis.
Warden Harrington, Counselor Oakley, Internal Affairs Officer Riechert and Lt. Hughes, who
also sits on the Adjustment Committee, all declined to reinvestigate the falsity of C/O Davis’s

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charges and Plaintiff’s second disciplinary conviction. Multiple requests for relief were either
ignored or otherwise went unanswered.
On March 5, 2014, along with many other prisoners, Plaintiff was transferred to Pontiac
Correctional Center, without his segregation time being reduced. Plaintiff takes issue with his
transfer because he had been held in the medium security portion of Menard and Pontiac was a
high security facility. Plaintiff further contends that he does not qualify for placement at a high
security facility.
Plaintiff also claims that Warden Harrington and Counselor Oakley intentionally, with
deliberate indifference, transferred him to Pontiac in order to postpone and/or deny Plaintiff
“urgent medical treatments” for Hepatitis C—treatments that were scheduled to be given at
Menard on an unspecified, upcoming date.
Relative to the conditions of segregation at Menard, Plaintiff further alleges that the
prison administration and unidentified guards deprived him of “basic human needs, and served
him smaller portions of food than general population inmates received; sometimes he was served
contaminated food. As a result, Plaintiff claims he suffered from malnourishment, weight loss,
stomach cramps and other side effects.

In addition, unidentified guards maliciously and

sadistically denied Plaintiff basic hygiene products, including soap, toilet paper, lotion,
toothpaste, a tooth brush, and a comb and hairbrush. In addition, Plaintiff complains that the
segregation cell was small, unventilated, and lacking proper heating and cooling.
Each defendant is sued in his individual and official capacity.

Plaintiff prays for

compensatory and punitive damages, as well as injunctive relief.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into four counts, mirroring the complaint. The parties and the Court will use these

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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: Defendants Harrington, Davis, Moll, Heiman, Veath, Oakley,
Hughes and Riechert retaliated against Plaintiff for filing
grievances, in violation of the First Amendment;
Count 2: Defendants Harrington, Davis, Moll, Heiman, Veath, Oakley,
Hughes and Riechert denied Plaintiff due process, in violation of
the Fourteenth Amendment;
Count 3: Defendants Harrington, Davis, Veath, Oakley, Hughes and
Riechert were deliberately indifferent to Plaintiff’s health relative
to (a) Hepatitis C treatment, (b) nutrition, (c) basic hygiene, and
(d) conditions of confinement in segregation, all in violation of the
Eighth Amendment; and
Count 4: Defendants Harrington, Davis, Moll, Heiman, Veath, Oakley,
Hughes and Riechert intentionally inflicted emotional distress
upon Plaintiff, in violation of Illinois law.
Discussion
Personal Involvement
Liability under Section 1983 requires a defendant’s personal involvement in the alleged
constitutional violation. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). A
defendant must have caused or participated in the violation. Pepper v. Village of Oak Park, 430
F.3d 809, 810 (7th Cir. 2005). Thus, the doctrine of respondeat superior—supervisor liability—
is not applicable to Section 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)).
Allegations that senior officials were personally responsible for creating the policies,
practices and customs that caused the constitutional deprivations can suffice to demonstrate
personal involvement for purposes of Section 1983 liability.

See Doyle v. Camelot Care

Centers, Inc., 305 F.3d 603, 615 (7th Cir. 2002). “Supervisory liability will be found … if the

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supervisor, with knowledge of the subordinate’s conduct, approves of the conduct and the basis
for it.” Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997); Chavez v.
Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). “An official satisfies the personal
responsibility requirement of [Section] 1983 if she acts or fails to act with a deliberate or reckless
disregard of the plaintiff’s constitutional rights.” Crowder v. Lash, 687 F.2d 996, 1005 (7th
Cir.1982) (emphasis added); Fillmore v. Page, 358 F.3d 496, 505 -506 (7th Cir. 2004). With all
that said, merely knowing about a constitutional violation and failing to cure it is generally
insufficient; only persons who cause or participate in the violations are responsible. Greeno v.
Daley, 414 F.3d 645, 656-57 (7th Cir. 2005); see also Johnson v. Snyder, 444 F.3d 579, 584 (7th
Cir. 2006), overruled on other grounds, Hill v. Tangherlini, 724 F.3d 965, 967 n. 1 (7th Cir.
2013). Thus, “[r]uling against a prisoner on an administrative complaint does not cause or
contribute to the [alleged constitutional] violation.” George v. Smith, 506 F.3d 605, 609 (7th Cir.
2007).
All eight defendants are named in all counts of the complaint, with the exception of
Count 3. As summarized above, the narrative of the complaint illustrates that Plaintiff links the
initial retaliatory act by C/O Davis (writing the first disciplinary report) to all of the other events,
ending with Plaintiff’s transfer from Menard to Pontiac.

In essence, Plaintiff perceives a

conspiracy—it is alleged that the defendants acted “in agreement” with one another, “backing”
C/O Davis in retaliating against Plaintiff (Doc. 1, p. 24).1
The allegations of conspiracy are conclusory and insufficient under the Twombly
pleading standard. “To establish the existence of a conspiracy, a plaintiff must demonstrate that
the conspirators have an agreement to inflict injury or harm upon him.” Sow v. Fortville Police
1

“[C]onspiracy is not an independent basis of liability in [Section] 1983 actions.” Smith v.
Gomez, 550 F.3d 613, 617 (7th Cir. 2008).
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Dep't, 636 F.3d 293, 304–05 (7th Cir. 2011).

“The agreement may be inferred from

circumstantial evidence, but only if there is sufficient evidence that would permit a reasonable
jury to conclude that a meeting of the minds had occurred and that the parties had an
understanding to achieve the conspiracy’s objectives.” Id. at 305 (quoting Hernandez v. Joliet
Police Dep't, 197 F.3d 256, 263 (7th Cir.1999)).
The complaint does not describe a meeting of the minds; rather, all Plaintiff offers is the
fact that each defendant participated in some way in the grievance process or had some contact
with Plaintiff in a general causal chain of events. For example, after Davis wrote the initial
disciplinary report, Sgt. Heiman and C/O Moll escorted Plaintiff to segregation (or at least to
where he was held pending his disciplinary hearing). Heiman and Moll said they did not know
why Plaintiff was being moved, only that they were ordered to move him. Clearly, there is
nothing from which to reasonably discern a conspiracy with Davis. Similarly, Lt. Veath and
Warden Harrington were drawn into the situation only in their respective roles in the
administrative disciplinary process. A conspiracy cannot stem merely from the fact that they did
not take Plaintiff’s side in the dispute.

The same can be said for the events surrounding the

second disciplinary report issued by Davis, the conditions of confinement, and Plaintiff’s transfer
to Pontiac. The complaint describes merely a chain of events, not a conspiracy. Each claim will
otherwise be addressed.
Count 1
Count 1 alleges that all defendants retaliated against Plaintiff for filing grievances in
violation of the First Amendment. The seminal events are the grievances Plaintiff lodged against
C/O Davis.

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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) (internal citations omitted).
Retaliation for filing a grievance violates the First Amendment. Id. The issuance of a
disciplinary report could be viewed as sufficient to chill one’s First Amendment activities.
Whether the filing of grievances against C/O Davis motivated Davis and the other defendants is
the key question.
Taking the allegations as true, a claim has been stated against C/O Davis. Davis’s
threatening statements to Plaintiff as Plaintiff was drafting the grievances, followed by the
issuance of disciplinary tickets, reasonably makes retaliation plausible, not merely possible,
which is the pleading threshold under Twombly, 550 U.S. at 557.

Therefore, Plaintiff’s

retaliation claim against C/O Davis shall proceed relative to the two disciplinary reports issued to
Plaintiff.
As already discussed, Plaintiff has failed to state any conspiracy or link extending
Davis’s retaliatory conduct to the other defendants, Warden Harrington, Adjustment Committee
Chairperson Veath, Adjustment Committee Chairperson Lt. Robert Hughes, Internal Affairs
Officer Kevin Riechert, C/O Moll, Sgt. Heiman or Counselor Oakley. Each of these defendants
merely performed their respective role in the grievance process without any suggestion of an
agreement with Davis or each other to retaliate against Plaintiff.

Therefore, Defendants

Harrington, Veath, Hughes, Riechert, Moll, Heiman and Oakley will all be dismissed from Count
1 without prejudice.

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Count 2
Count 2 alleges that Defendants Harrington, Davis, Moll, Heiman, Veath, Oakley,
Hughes and Riechert denied Plaintiff due process in connection with his two disciplinary
hearings, in violation of his right to due process under the Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment, by its very terms, applies only to
deprivations of life, liberty and property.

See Marion v. Radtke, 641 F.3d 874, 875 (7th Cir.

2011). Because Plaintiff’s good-time credits were never revoked, he cannot claim a right to
substantive due process under Wolff v. McDonnell, 418 U.S. 539, 558 (1974). Instead, the
procedural due process allegations must be analyzed under the approach of Sandin v. Conner,
515 U.S. 472 (1995). Under Sandin, a prisoner is entitled to procedural due process protections
before segregation imposing “an atypical and significant hardship” (Id. at 486), which includes
“conditions materially more onerous than ‘the ordinary incidents of prison life.’ ” Marion, 641
F.3d at 875 (quoting Sandin, 515 U.S. at 484). The relevant comparison is between the ordinary
conditions of a high-security prison in the state, and the conditions under which the prisoner is
actually held. See Lekas v. Briley, 405 F.3d 602, 608-09 (7th Cir. 2005).2
The two-day period Plaintiff was held in administrative detention prior to the first
disciplinary hearing on September 17, 2013, was too brief, even if the conditions were to meet
the Sandin standard—the denial of a mattress and unspecified hygiene products for two days is
insufficient to constitute a liberty interest. Moreover, temporary confinement in investigative
status does not implicate a liberty interest. See Lekas, 405 F.3d at 613 (citing Thomas v. Ramos,
130 F.3d 754, 761 (7th Cir. 1997)).
2

An extreme “frame-up,” where no subsequent procedural fairness could uncover the truth, can
constitute a substantive due process violation triggering the due process protections under Wolff.
See Langerstrom v. Kingston, 463 F.3d 621, 625 (7th Cir. 2006), but the complaint does not
sufficiently plead such a situation. Any such claim, particularly with respect to C/O Davis,
should be considered dismissed without prejudice.
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The conditions described in Plaintiff’s first and second stints in disciplinary segregation
do, however, suggest that the conditions could be worse than at a maximum security facility—
particularly relative to the diminished food portions and tainted food. Nevertheless, Plaintiff’s
September 18, 2013, disciplinary conviction only imposed placement in segregation for five
months. Even where extreme conditions are imposed in segregation, a term of six months has
been found insufficient to trigger due process protections. See Lekas, 405 F.3d at 613 (citing
Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995)).
The October 10, 2013, disciplinary conviction imposed a one-year term in segregation,
which is long enough to trigger a right to procedural due process. In a situation like this,
involving being sent to segregation under onerous conditions of confinement, due process only
requires that the inmate receive “advance written notice of the charges, the chance to present
testimony and documentary evidence to an impartial decisionmaker, and a written explanation,
supported by at least ‘some evidence’ in the record, for any disciplinary action taken.”
Langstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006) (citations omitted); see also Wolff v.
McDonnell, 418 U.S. 539 (1974); Wilkinson v. Austin, 545 U.S. 209, 224-229 (2005) (discussion
what level of process is due relative to a Sandin-based liberty interest). “[T]he relevant question
is whether there is any evidence in the record that could support the conclusion reached by the
disciplinary board.” “[T]he relevant question is whether there is any evidence in the record that
could support the conclusion reached by the disciplinary board.”

Superintendent, Mass.

Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455-56 (1985) (emphasis added).
The documentation attached to the complaint shows that the Adjustment Committee
interviewed inmate Rufus Neal, Sgt. Heinman, C/O Mezo, and C/O Moll (Doc. 1-2, p. 24). Neal
Heinman and Mezo did not see any assault by Plaintiff upon C/O Davis, which is not to say that

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the assault did not occur. C/O Moll saw Plaintiff “bump” C/O Davis, which constitutes “some
evidence” in support of the disciplinary conviction.
In this situation, with such a lenient standard of review, even though material exculpatory
evidence must be disclosed in a prison disciplinary proceeding (see Jones v. Cross, 637 F.3d
841, 847 (7th Cir. 2011)), the failure to disclose the video amounts to only harmless error (Id.). It
is not within the province of this Court to reweigh the evidence or make credibility
determinations. See Hill, 472 U.S. at 455. Furthermore, Plaintiff’s conclusory allegations of
some sort of conspiracy between prison staff is also insufficient to show that he was denied due
process. Therefore, Plaintiff has essentially pleaded himself out of Court on his due process
claim regarding Defendant Veath relative to the October 2013 disciplinary hearing and decision.
The Court further notes that no substantive or procedural due process right exists for
writing a false disciplinary report and/or malicious prosecution. See Langstrom, 463 F.3d at 625.
Plaintiff’s claim against C/O Davis rests solely upon the retaliation claim in Count 1.
Relative to Plaintiff’s allegations that his subsequent efforts to overturn his disciplinary
conviction, no due process claim has been recognized with respect to grievances that were
ignored or denied. See Owens v. Hinsley, 635 F.3d 950, 953–54 (7th Cir. 2011); Grieveson v.
Anderson, 538 F.3d 763, 772 n. 3 (7th Cir. 2008). And, merely ruling against a prisoner’s
grievance does not cause or contribute to the underlying constitutional violation. See George v.
Smith, 506 F.3d 605, 609-10 (7th Cir. 2007). As already discussed, Plaintiff has failed to plead
sufficient personal involvement by the other defendants named in Count 2, Defendants Warden
Harrington, Lt. Hughes, Lt. Riechert, C/O Moll, Sgt. Heiman and Counselor Oakley. Count 2
will therefore be dismissed with prejudice, as there is no apparent way to re-plead this claim to
state a viable claim.

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Count 3
Count 3 alleges that Defendants Harrington, Davis, Veath, Oakley, Hughes and Riechert
were deliberately indifferent to Plaintiff’s health relative to (a) Hepatitis C treatment, (b)
nutrition, (c) basic hygiene, and (d) conditions of confinement in segregation, all in violation of
the Eighth Amendment.
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).

Inmates are protected against prison officials being deliberately indifferent to

adverse conditions that deny “the minimal civilized measure of life's necessities,” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (citation omitted), including adequate sanitation and personal
hygiene items, and heating, cooling and ventilation. See Budd v. Motley, 711 F.3d 840, 842 43 (7th Cir. 2013). Such adverse conditions may violate the Eighth Amendment individually or
due to the combined effect, as long as they deny “a single, identifiable human need.” Wilson v.
Seiter, 501 U.S. 294, 304 (1991). Prison officials can also 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 medical condition need not be life-threatening to be serious; rather, it can be a condition that
would result in further significant injury or unnecessary and wanton infliction of pain if not
treated. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). “Deliberate indifference cannot
rest on negligent actions or inactions, but must instead rest on reckless indifference to the plight
of an inmate.” Cavalieri v. Shepard, 321 F.3d 616, 626 (7th Cir. 2003).
The allegations in the complaint suggest that transferring Plaintiff from Menard to
Pontiac may have somehow delayed Plaintiff’s scheduled Hepatits C treatment program.

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Although delayed medical treatment may violate the Eighth Amendment, there is insufficient
information pleaded to move this claim from the possible to the plausible, as required under the
Twombly pleading standard. Plaintiff does not indicate what happened at Pontiac—whether
there was a delay or adverse impact. Furthermore, the allegation is conclusory and offers no
details regarding how Warden Harrington and Counselor Oakley were involved. Aside from the
insufficient allegations of some sort of conspiracy, there is no other way to tie Defendants Davis,
Veath, Hughes and Riechert to this situation.
The allegations regarding inadequate nutrition, the denial of hygiene items, and the
overall conditions in segregation (such as heating, cooling and ventilation), are attributed to the
prison administration and unidentified guards, not Defendants Harrington, Oakley, Davis, Veath,
Hughes and Riechert.

A policy or practice attributable to Warden Harrington is also not

sufficiently alleged. For these reasons, Count 3 will be dismissed without prejudice.
Count 4
In Count 4, Plaintiff alleges a supplemental state law claim against Defendants for
intentional infliction of emotional distress relative to Counts 1-3. If there is federal jurisdiction,
then, theoretically, the Court can exercise supplemental jurisdiction over related state law claims
pursuant to 28 U.S.C. § 1367(a). At present, only Count 1, the First Amendment retaliation claim
against C/O Davis, is the only viable claim and basis for federal jurisdiction. Therefore, Count 4
may only proceed against C/O Davis relative to intentional infliction of emotional distresss
stemming from the two disciplinary reports issued by Davis. Count 4 shall, therefore, be
permitted to proceed in this limited respect.

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Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Defendants RICHARD
HARRINGTON, TIMOTHY VEATH, LT. ROBERT HUGHES, LT. KEVIN RIECHERT,
C/O ALEX MOLL, SGT. HEIMAN and LORI OAKLEY will all be DISMISSED from
COUNT 1 without prejudice. COUNT 1, the First Amendment retaliation claim regarding false
disciplinary reports, shall PROCEED against C/O RYAN DAVIS.
IT IS FURTHER ORDERED that COUNT 2, Fourteenth Amendment due process
claims against Defendants RICHARD HARRINGTON, RYAN DAVIS, TIMOTHY
VEATH, LT. ROBERT HUGHES, LT. KEVIN RIECHERT, C/O ALEX MOLL, SGT.
HEIMAN and LORI OAKLEY, is DISMISSED with prejudice.
IT IS FURTHER ORDERED that COUNT 3, an Eighth Amendment claim against
Defendants RICHARD HARRINGTON, RYAN DAVIS, TIMOTHY VEATH, LT.
ROBERT HUGHES, LT. KEVIN RIECHERT and LORI OAKLEY, is DISMISSED
without prejudice.
IT IS FURTHER ORDERED that COUNT 4, a supplemental claim regarding
intentional infliction of emotional distress, is DISMISSED without prejudice relative to
Defendants RICHARD HARRINGTON, TIMOTHY VEATH, LT. ROBERT HUGHES,
LT. KEVIN RIECHERT, C/O ALEX MOLL, SGT. HEIMAN and LORI OAKLEY.
COUNT 4 shall PROCEED against C/O RYAN DAVIS relative to COUNT 1.
The Clerk of Court is, accordingly, DIRECTED to terminate Defendants RICHARD
HARRINGTON, TIMOTHY VEATH, LT. ROBERT HUGHES, LT. KEVIN RIECHERT,
C/O ALEX MOLL, SGT. HEIMAN and LORI OAKLEY from this case.

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The Clerk of Court is DIRECTED to prepare for Defendant C/O RYAN 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 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 upon 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.
If Defendant who no longer can be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with Defendant’s current work address, or, if not known,
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 Defendant (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 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 C/O Davis 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

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Judge Philip M. Frazier for further pre-trial proceedings, including Plaintiff’s motion for
recruitment of counsel (Doc. 3).
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
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: July 14, 2014

s/ J. Phil Gilbert
United States District Judge
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