Freeman v. Atchison et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 6/24/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GEOFFREY W. FREEMAN, # N-40858,
Plaintiff,
vs.
MICHAEL ATCHISON,
SALVADOR GODINEZ,
and KIM BUTLER,
Defendants.

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Case No. 14-cv-614-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff is currently incarcerated at Menard Correctional Center (“Menard”), where he is
serving a life sentence. He brings this pro se civil rights action pursuant to 42 U.S.C. § 1983,
claiming that in 2012, Defendants implemented a racially-motivated policy to confiscate all
typewriters from Menard prisoners, which has had a disparate impact on African-American
inmates’ and older inmates’ ability to access the courts. Plaintiff’s typewriter was taken away
before this policy was adopted. After this, he filed numerous grievances, and was also involved
in state court litigation against prison officials. As retaliation for this protected activity, a false
disciplinary report was brought against Plaintiff and he was punished with segregation. The
named Defendants are Michael Atchison, Deputy Director of the Illinois Department of
Corrections (“IDOC”); Salvador Godinez, IDOC Director; and Kim Butler, the Menard Warden.
In his lengthy complaint1 (Doc. 5), Plaintiff first outlines a number of statistics gleaned
1

Plaintiff’s original complaint (Doc. 1) was filed with a number of exhibits randomly inserted in the
middle of the statement of claim. Several days after the instant case was filed, the Court received another
copy of the complaint, which was filed as a new case (No. 14-cv-629-NJR). However, when it was
discovered that the complaints were identical, the duplicate case was closed, and the later-submitted
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from a report of the John Howard Association, Menard’s Internal Audit Report, a statistical
report from the United States Department of Justice (“DOJ”) (2005-2014), and Halbert v.
Michigan, 545 U.S. 605, 621 (2005) (referencing DOJ statistical report as to the percentages of
state prisoners who are illiterate, have learning disabilities, or suffer from mental illness) (Doc. 5,
pp. 6-8). He states that between 2005 and 2012, the percentage of Menard inmates who are
African-American has greatly increased as the percentage of white prisoners has declined, and
the average age of all Menard prisoners has increased. Along with those changes in racial and
age makeup, the number of African-American Menard inmates who are illiterate, learningdisabled, or suffer from age-related impairments such as arthritis, has greatly increased. He
claims that between June 2012 (when prisoners’ typewriters were removed) and April 2014, the
number of pro se filings submitted by African-American Menard inmates, especially those over
age 50, has fallen. However, white prisoners’ pro se filings have increased over this same
period.
Plaintiff claims that the Defendants’ decision to confiscate Menard prisoners’ personal
typewriters was prompted by the increase in the numbers of elderly or illiterate AfricanAmerican inmates, who were disproportionately less able to hand-write their court documents,
rather than the security concerns that were the official rationale for the no-typewriter policy
(Doc. 5, pp. 8-11). Since Plaintiff’s typewriter was taken, he has had to hand-write his legal
documents with state-issued pens, which are difficult to write with and cause him joint pain due
to his arthritis (Doc. 5, p. 31). He notes that 70% of all the typewriters taken from Menard
inmates had been owned by African-American prisoners (Doc. 5, p. 11). Further, he claims that
the taking was “designed to cause an eruption of violence from the Black population” (Doc. 5,
complaint (along with its exhibits) was filed in this case as the First Amended Complaint (Doc. 5). This
amended pleading consists of a 39-page handwritten complaint and 42 pages of exhibits.
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pp. 12-13). He believes such a surge of violence was meant to support prison officials’ efforts to
keep the state supermax prison at Tamms open. The typewriter restriction had a disparate impact
on the ability of African-American and older inmates to complain to the courts or other agencies
about their conditions of confinement.
On June 3, 2012, just before the typewriters were taken, two Black inmates attacked a
white officer at Menard. Plaintiff claims those prisoners were then beaten by guards “at the
behest of [Defendant] Atchison” (Doc. 5, p. 12). Two days later, on June 5, 2012, Defendant
Atchison ordered all prisoners (including Plaintiff) removed from their cells. While the inmates
were kept in the prison chapel, Plaintiff’s typewriter was removed from his cell, as were those of
all other prisoners. This was done without any notice, and before the announcement of any rule
or policy – the official policy banning typewriters was not issued until July 23, 2012. Id.
Plaintiff also claims that he was improperly designated as having a mental health problem in
order to justify the taking of his typewriter (Doc. 5, p. 13).
Plaintiff filed a series of grievances against Defendant Atchison between June 5, 2012,
and February 5, 2013, over the confiscation of his typewriter and other matters (Doc. 5, pp. 1316). He notes that over the past 28 years of his incarceration, he had no history of assaultive
behavior or weapons violations (Doc. 5, p. 17).
Jumping ahead to April 10, 2014, Plaintiff states that on that date, Menard was on a
Level-1 lockdown, and Plaintiff knew that his housing unit was scheduled for a shakedown on
April 14. Id. After Plaintiff and his cellmate were moved to another area of the prison, the
search of their cell turned up a homemade knife sewn into a pillow, which was allegedly found
on Plaintiff’s bottom bunk (Doc. 5, pp. 18, 22, 24). Defendant Butler tried to coerce Plaintiff’s
cellmate to say he saw Plaintiff with the knife, but he refused (Doc. 1, p. 24). Plaintiff likewise

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denied responsibility for the weapon and refused to implicate his cellmate. Both were charged
and found guilty by Defendant Butler of a weapon violation, and each was punished with one
year in segregation (Doc. 1, pp. 25). He further complains that he was denied due process in the
disciplinary matter because he was not provided with a “Hearing Investigator,” he was not given
a polygraph test, and there was no investigation of the matter (Doc. 5, p. 19). In addition, he has
been threatened with criminal prosecution for the weapon violation (Doc. 5, p. 25).
Plaintiff claims that he was framed for the knife charge in retaliation for his grievance
activity that began with the June 2012 confiscation of his typewriter. A further motive for the
alleged retaliation was Plaintiff’s action of filing a motion to intervene in a pending state court
lawsuit, which had been brought by correctional officers represented by AFSCME to challenge
the Illinois Governor’s proposed closure of the Tamms Correctional Center (Doc. 5, pp. 20-22;
59-61). In his motion, he accused the guards of fraud, manufacturing evidence, and instigating a
fatal attack on a Menard prisoner (Doc. 5, pp. 23-24). Soon after filing his motion, Plaintiff was
verbally threatened, but does not say who issued the threat. He also sued Defendant Atchison in
state court.
Based on these factual allegations, Plaintiff asserts three claims: (1) Retaliation claim
(falsely charging Plaintiff with possession of a knife) for the exercise of his First Amendment
rights to file grievances and court documents, against Defendants Butler, Atchison, and Godinez
(Doc. 5, pp. 23-26; 33); (2) Racial and age discrimination claim against Defendants Atchison and
Godinez, who confiscated typewriters from Plaintiff and other African-American inmates in
order to obstruct them from seeking redress in court; African-American inmates and older
inmates were disproportionately affected by these Defendants’ July 2012 policy prohibiting
individual possession of typewriters in Menard and other maximum-security prisons (Doc. 5, pp.

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26-30; 34); (3) Access to courts claim against Defendants Atchison and Godinez, whose July 23,
2012, no-typewriter policy hinders African-American and elderly inmates such as Plaintiff (who
is an African-American over age 50) from seeking redress in the courts, in comparison to white
inmates and inmates in medium or minimum-security facilities (Doc. 5, pp. 30-32; 35-36).
Plaintiff does not seek monetary compensation. Instead, he seeks injunctive relief in
several forms. His requests include an order against Defendant Butler to show cause why
Plaintiff’s April 2014 disciplinary report should not be expunged as false and retaliatory and the
expungement of that report; an order preventing the enforcement of the July 23, 2012, notypewriter policy to all takings that occurred prior to that date (presumably, this would result in
the return of Plaintiff’s confiscated typewriter); and an order rescinding all policies that have a
disparate impact on African-American Menard inmates or on prisoners older than age 50 of any
race (Doc. 5, pp. 36-39).
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.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has articulated the
following colorable federal causes of action, which shall receive further review:
Count 1: Retaliation claim against Defendant Butler, for falsely charging Plaintiff with
possession of a knife and punishing him with segregation, because he filed grievances and
pursued court actions against Defendant Atchison and other prison employees;
Count 2: Racial and age discrimination claims against Defendants Atchison and
Godinez for confiscating Plaintiff’s typewriter on June 5, 2012, and adopting a policy on July 23,

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2012, prohibiting Menard inmates from possessing typewriters in their cells.
However, Count 3 of the complaint, alleging that the policy restricting inmates from
owning typewriters has infringed upon their right to access the courts, shall be dismissed without
prejudice, as discussed below.
Count 1- Retaliation
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,
866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000). Plaintiff claims that he experienced an adverse action (the disciplinary
charge and punishment, which he suggests was based on a planted weapon) that would likely
deter First Amendment activity in the future, and that his First Amendment activity was “at least
a motivating factor” in the decision to take the retaliatory action. See Bridges v. Gilbert, 557
F.3d 541, 551 (7th Cir. 2009).
According to Plaintiff’s factual allegations regarding the April 2014 charge for
possession of the knife, Defendant Butler was the only one of the named parties who was
personally involved in some fashion with the handling of that disciplinary matter. Plaintiff does
not describe any actions taken by either Defendant Atchison or Defendant Godinez with regard
to that matter. 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 does not indicate that the latter two
Defendants had any personal involvement in the alleged retaliation.
Furthermore, the doctrine of respondeat superior does not apply to actions filed under 42

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U.S.C. § 1983. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted);
see also Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Thus, neither Defendant
Atchison or Godinez can be held liable in their supervisory capacity for the unconstitutional
action of a subordinate prison official.
For these reasons, Count 1 shall proceed only against Defendant Butler; the retaliation
claim is dismissed without prejudice as to Defendants Atchison and Godinez.
Aside from Plaintiff’s claim that the disciplinary action was motivated by retaliation, he
asserts that his due process rights were violated during the disciplinary proceedings. However,
his description does not raise any due process concerns. Prison disciplinary hearings satisfy
procedural due process requirements where an inmate is provided: (1) written notice of the
charge against the prisoner twenty four (24) hours prior to the hearing; (2) the right to appear in
person before an impartial body; (3) the right to call witnesses and to present
physical/documentary evidence, but only when doing so will not unduly jeopardize the safety of
the institution or correctional goals; and (4) a written statement of the reasons for the action
taken against the prisoner. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974); Cain v. Lane,
857 F.2d 1139, 1145 (7th Cir. 1988). In addition, the decision of the disciplinary hearing board
must be supported by “some evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994).
Plaintiff objects to the disciplinary proceeding because he was not provided with a
“hearing investigator,” was not given a polygraph test, and there was no investigation of the
incident. However, Wolff does not require any of these measures. Thus, the alleged lack of
investigation or polygraph testing does not amount to a due process violation. Plaintiff may
proceed with his retaliation claim, but he has failed to state a cognizable claim for a due process
violation. Accordingly, to the extent he may have sought to bring a due process claim, it shall be

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dismissed with prejudice.
Count 2 – Racial and Age Discrimination
Racial discrimination by state actors violates the Equal Protection Clause of the
Fourteenth Amendment unless it is narrowly tailored to serve a compelling state interest. See
DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). Likewise, an equal protection claim may
be brought pursuant to 28 U.S.C. § 1983 for age discrimination. See Levin v. Madigan, 692 F.3d
607, 617 (7th Cir. 2012).
However, 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.
denied, 484 U.S. 935 (1987) (citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982)).
The gravamen of equal protection lies not in the fact of deprivation of a right but
in the invidious classification of persons aggrieved by the state's action. A
plaintiff must demonstrate intentional or purposeful discrimination to show an
equal protection violation. Discriminatory purpose, however, implies more than
intent as volition or intent as awareness of consequences. It implies that a
decisionmaker singled out a particular group for disparate treatment and selected
his course of action at least in part for the purpose of causing its adverse effects
on the identifiable group.
Nabozny v. Podlesny, 92 F.3d 446, 453-54 (7th Cir. 1996) (quoting Shango v. Jurich, 681 F.2d
1091, 1104 (7th Cir. 1982)).
At this stage of the litigation, Plaintiff’s claim that his typewriter was taken, and the notypewriter policy was adopted, in order to purposely frustrate his and other African-American
and elderly inmates’ efforts to raise complaints over their conditions of confinement, survives
§ 1915A review. He may proceed with Count 2 against Defendants Atchison and Godinez.
Dismissal of Count 3 – Access to the Courts
Prisoners have a fundamental right of meaningful access to the courts. Bounds v. Smith,
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430 U.S. 817 (1977). While prison officials have an affirmative duty to provide inmates with
reasonable court access, including use of a law library, materials, and assistance needed to
prepare legal papers, reasonable access does not mean unlimited access. Martin v. Davies, 917
F.2d 336, 338 (7th Cir. 1990) (citing Hossman v. Sprandlin, 812 F.2d 1019, 1021 (7th Cir.
1987)). The confiscation of Plaintiff’s typewriter no doubt was an inconvenience and perhaps a
hardship for him, but courts routinely accept handwritten documents from prison inmates.
Further, in order to maintain a claim for denial of access to the courts, a prisoner must
demonstrate that a non-frivolous legal claim has been frustrated or impeded. Lewis v. Casey, 518
U.S. 343, 352-53 (1996). In addition to showing that prison officials have failed to provide
resources necessary to prepare legal papers, he must be able to show “some quantum of
detriment caused by the challenged conduct of state officials resulting in the interruption and/or
delay of plaintiff’s pending or contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041
(7th Cir. 1994); see also Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). Mere delay or
inconvenience is not an unconstitutional detriment. To state a claim, a plaintiff must connect the
defendants’ conduct with his “inability to pursue a legitimate challenge to a conviction, sentence,
or prison conditions,” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal quotation and
citation omitted); accord Guajardo Palma v. Martinson, 622 F.3d 801, 805-06 (7th Cir. 2010).
This requires Plaintiff to identify the underlying claim that was lost. See Christopher v.
Harbury, 536 U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007).
Plaintiff has not described any lawsuit or claim that he was unable to bring because of his
lack of a personal typewriter. Indeed, he was able to clearly articulate his claims in the instant
complaint using pen and paper issued by the prison. He thus has not demonstrated that he
suffered any unconstitutional detriment or denial of his right to access the courts, and Count 3

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shall be dismissed with prejudice.
Furthermore, to the extent Plaintiff appears to assert a claim in Count 3 on behalf of other
inmates generally, or members of the classes of inmates to which he belongs (African-Americans
and those older than 50), he cannot do so. Plaintiff has not moved for certification of a class
action, but if he were to do so, certification would be denied. The Federal Rules permit class
actions to be maintained only if the class representative “will fairly and adequately protect the
interests of the class,” FED. R. CIV. P. 23(a)(4), and “[e]very court that has considered the issue
has held that a prisoner proceeding pro se is inadequate to represent the interests of his fellow
inmates in a class action.” Lee v. Gardinez, No. 11-cv-570-GPM, 2012 WL 143612, at *1 n.1
(S.D. Ill., Jan. 18, 2012) (quoting Craig v. Cohn, 80 F. Supp. 2d 944, 946 (N.D. Ind. 2000)
(internal citations and quotation marks omitted)). In addition, a plaintiff may not pursue a
§ 1983 claim alleging that inmates generally are treated in contravention to the Constitution,
where he himself did not suffer a constitutional deprivation. Higgason v. Farley, 83 F.3d 807,
810 (7th Cir. 1996). If other inmates were denied access to the courts as a result of the notypewriter policy, they must assert their own claims.
Disposition
COUNT 3 is DISMISSED with prejudice for failure to state a claim upon which relief
may be granted. The retaliation claim in COUNT 1 shall proceed only against Defendant Butler,
and is DISMISSED without prejudice as to Defendants Atchison and Godinez. The due process
portion of COUNT 1 is DISMISSED with prejudice.
The Clerk of Court shall prepare for Defendants ATCHISON, GODINEZ, and
BUTLER: (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

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

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Frazier 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 § 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: June 24, 2014
s/J. Phil Gilbert
United States District Judge

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