Henderson v. Harrington et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 3/30/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARREN HENDERSON,
No. R40280,
Plaintiff,
vs.
WARDEN HARRINGTON,
TRUST FUND OFFICE SUPERVISOR,
LAW LIBRARY SUPERVISOR,
COUNSELOR NIPIN,
C/O SLAVENS,
C/O BROCK,
C/O FITZGERALD,
LORI OAKLEY,
LT. PAGE,
MAJOR OLEN,
LT. VEATH,
SHERRY BENTON, and
SGT. EOVALDI,
Defendants.

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Case No. 14-cv-00664-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Darren Henderson, an inmate in Stateville Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on an array of
alleged constitutional violations that occurred while he was confined at Menard Correctional
Center (“Menard”). The original 194-page complaint against 24 defendants was dismissed, and
a 68-page amended complaint against 13 defendants has been filed (Doc. 6).
The amended complaint is now before the Court for a preliminary review pursuant to 28
U.S.C. § 1915A. The Court is required to dismiss any portion of the complaint that is legally

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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).
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).
Discussion
The Court’s review will generally track the seven claims framed by Plaintiff (see Doc. 6,
pp. 17-19). There is a general thread that runs through the amended complaint: retaliation for
filing grievances and having pursued litigation against prison personnel. Although each claim
will be addressed in the order presented in the amended complaint in order to appreciate why
each claim is addressed narrowly, it will be stated now that an overarching conspiracy to retaliate
against Plaintiff is not properly pleaded.

Furthermore, insofar as the amended complaint

suggests other possible claims, the Court has deferred to Plaintiff and only recognized the claims
he identified.
Count 1
According to the amended complaint, in 2012 this district court gave Plaintiff a
December 24, 2012, deadline for filing an amended complaint in Henderson v. Rednour, Case

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No. 12-cv-1113-GPM (S.D. Ill. 2012). 1 On November 19, Plaintiff submitted a request that he
be placed on the law library’s “court deadline list,” and asked for two books: The Prison SelfHelp Litigation Manual and the Federal Rules of Civil Procedure. His request went unanswered,
and he learned that the law library did not have him on the “court deadline list”—as though his
request had never been received. Plaintiff notes, however, that despite purportedly not being on
the list, a law clerk appeared at his cell to pick up his pleading, suggesting the law library was
aware of his deadline. In any event, Plaintiff was forced to file his amended complaint without
adequate access to the law library and legal materials.
Plaintiff characterizes the denial of access to the law library and legal materials as
“deliberate indifference” and a violation of his rights under the First Amendment by the
unnamed Law Library Supervisor. On its face, Count 1 fails because there is insufficient
personal involvement alleged on the part of the Law Library Supervisor (regardless of his or her
name). 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).
Merely naming a defendant in the caption is insufficient to state a claim. See Collins v.
Kibort, 143 F.3d 331, 334 (7th Cir. 1998). The failure to put Plaintiff on the “court deadline list”
and to get him the requested materials is not attributed to anyone, and the respondeat superior
doctrine—liability merely because one is a supervisor—does not apply to Section 1983 actions.
See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). “[S]upervisors must know
about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they
1

A review of the record in Case No. 12-cv-1113-GPM reveals that on preliminary review three out of
four original claims were dismissed with prejudice, and Plaintiff was given another chance to plead a
colorable First Amendment retaliation claim (Doc. 5).

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might see.

They must in other words act either knowingly or with deliberate, reckless

indifference.” Backes v. Village of Peoria Heights, Illinois, 662 F.3d 866, 870 (7th Cir. 2011).
This claim is also fatally flawed because, in order to state a First Amendment violation,
Plaintiff would have to allege that he suffered an actual injury, such as showing that his pleading
was dismissed due to a technical deficiency which, due to the denial of assistance from the law
library personnel, he was unaware of or could not cure. See Lewis v. Casey, 518 U.S. 343, 35152 (1996) (discussing Bounds v. Smith, 430 U.S. 817, 821-25 (1977)). The amended complaint
in Case No. 12-cv-1113-GPM was dismissed on the merits because Plaintiff failed to state a
colorable retaliation claim—there was no allegation that Plaintiff was engaged in protected
activity, so First Amendment protections are not triggered. See Case No. 12-1113-GPM, Doc.
11.
For these reasons, Count 1 will be dismissed with prejudice.
Count 2
Between December 19, 2012, and January 2, 2013, Plaintiff sent out seven letters to be
mailed, accompanied by three money vouchers to cover the postage. Among the materials sent
out for mailing was his amended complaint in Case No. 12-cv-1113-GPM, which was due on
December 24, 2012. Prison regulations require money vouchers to be processed within ten
working days, but Plaintiff did not learn until January 31, 2013, that his money vouchers were all
rejected due to insufficient funds. As a result, the amended complaint supposedly was not filed
on time, which Plaintiff asserts contributed to the dismissal of the amended complaint.
Noting that a trust fund statement indicates that he had $10 or more in his trust fund
account during the relevant time period (see Doc. 6-1, p. 12), Plaintiff attributes the rejection of
his vouchers, and resulting interference with his mail and the filing of his amended complaint, as

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retaliation and an attempt to suppress his speech and litigation—all in violation of the First
Amendment. He seeks to hold the unnamed Trust Fund Supervisor liable.
Insofar as Plaintiff takes issue with his money vouchers not being processed within the
time frame prescribed by prison regulations, the violation of a prison rule or regulation is not, by
itself, a constitutional violation. See Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). The
three trust fund vouchers at issue do not reflect who actually stamped them “insufficient funds”
(Doc. 6-1, pp. 8-10). There is no actual allegation that the Trust Fund Supervisor was involved,
so there is insufficient personal involvement alleged.
The assertion of interference with litigation also is undercut by the fact that the amended
complaint was actually filed on December 21, 2014, well before the deadline. The amended
complaint was dismissed because Plaintiff failed to state a colorable retaliation claim—there was
no allegation that he was engaged in protected activity (see Case No. 12-1113-GPM, Doc. 11),
so First Amendment protections were not triggered. Lewis v. Casey, 518 U.S. at 351-52 (an
actual injury is required for this type of First Amendment claim).
Relative to the other letters Plaintiff was attempting to mail, he has failed to state a
colorable claim. There is no suggestion that the letters were legal mail or otherwise privileged.
Practices affecting non-legal mail are also covered by the First Amendment. Thornburgh v.
Abbott, 490 U.S. 401, 409 (1989). It has long been established, however, that inmates do not
even have a right to unlimited free legal postage. Gaines v. Lane, 790 F.2d 1299, 1308 (7th
Cir.1986)(citing Bach v. Coughlin, 508 F.2d 303, 307 (7th Cir. 1974)). And short-term, isolated,
non-content-based delays in receiving mail do not implicate the First Amendment. See Rowe v.
Shake, 196 F.3d 778, 782 (7th Cir. 1999). The delay in Plaintiff’s situation—about a month—
does not offend the Constitution.

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With all that said, an act taken in retaliation for the exercise of free speech or the right to
seek redress under the First Amendment violates the Constitution. Surita v. Hyd, 665 F.3d 860,
874 (7th Cir. 2011).
“In order to establish a prima facie case of First Amendment retaliation, a plaintiff
must demonstrate that (1) his conduct was constitutionally protected; and (2) his
conduct was a ‘substantial factor’ or ‘motivating factor’ in the defendant's
challenged actions.” Abrams v. Walker, 307 F.3d 650, 654 (7th Cir. 2002). The
protected conduct “ ‘cannot be proven to motivate retaliation[ ] if there is no
evidence that the defendants knew of the protected [activity].’ ” Stagman v. Ryan,
176 F.3d 986, 1000–01 (7th Cir.1999) (quoting O'Connor v. Chicago Transit
Auth., 985 F.2d 1362, 1369–70 (7th Cir. 1993)).
Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th Cir. 2003).
Relative to the materials being mailed in connection with Case No. 12-1113-GPM, as
already explained, Plaintiff is clearly mistaken—his amended complaint was sent and timely
filed. Therefore, no retaliation is evident and that aspect of Count 2 fails.
The rejection of Plaintiff’s payment vouchers and delay in mailing other non-privileged
mail could have been due to his litigation activity. As pleaded, however, the amended complaint
does not satisfy the Twombly pleading standard. Again, it appears that the Trust Fund Supervisor
is only named as a defendant to this claim under a theory of supervisor liability, which is
insufficient for liability.
The retaliation aspects of Count 2 will be dismissed without prejudice; the free speech
and interference with litigation aspects will be dismissed with prejudice.
Counts 3 and 4
In February 2013, Plaintiff conveyed to Counselor Nipin grievances regarding the library
and mail issues discussed relative to Counts 1 and 2. Plaintiff was subsequently moved from cell
to cell, so he checked with Nipin to learn the status of his grievances and to alert Nipin to his cell
change. Apparently, not all grievances were processed, so in April Plaintiff sent four more
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grievances regarding the same issues. One month later, Counselor Phoenix, not Counselor
Nipin, told Plaintiff that only one grievance was pending.
Eventually, Plaintiff received notice that one of his February 2013 grievances had been
rejected.

More specifically, what Plaintiff labeled as an emergency grievance, Warden

Harrington had concluded was not an emergency. Plaintiff also describes (in a somewhat
confusing and disjointed fashion) that pages were missing from the documents he submitted, and
his prison mail was sent to the wrong cell.
Count 3 is brought against Counselor Nipin, and Count 4 is against Warden Harrington.
These two Counts are considered together because Plaintiff perceives the handling (or
mishandling) of his grievances as a conspiracy among the warden, counselors, and mailroom
staff to interfere with Plaintiff’s efforts to redress his grievances, in retaliation for Plaintiff’s
prior litigation, and in violation of the First Amendment.
Claims of conspiracy necessarily require a certain amount of factual underpinning to
survive preliminary review. See Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). The assertion in the amended complaint
that there was a conspiracy fails to satisfy 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 Dept., 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 Dept., 197 F.3d 256, 263 (7th Cir.1999)). Plaintiff

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describes confusion and possible negligence, but nothing that reasonably indicates that there was
a meeting of the minds. This aspect of Counts 3 and 4 will be dismissed without prejudice.
Regarding retaliation and interference with Plaintiff’s grievances, at this early juncture
the Court cannot fully assess the viability of these claims against Warden Harrington and
Counselor Nipin. Those aspects of Counts 3 and 4 shall proceed.
Counts 5-7
Counts 5-7 are considered together because those claims stem from the following events
drawn from the very muddled amended complaint and attached documentation.
Plaintiff, who suffers from asthma and allergies, was moved back and forth between an
“open” cell with bars and a “closed” cell with a solid steel door. The closed cell aggravated his
medical conditions. Plaintiff opines that the constant cell switching is used to retaliate against
those who file grievances and to disrupt the grievance process (see Count 2). Some of Plaintiff’s
grievances regarding being in a closed cell were denied by Lori Oakley; other grievances that
were given to Counselor Nipin went unanswered.
After Plaintiff began filing grievances, C/O Slavens, Sgt.. Eovaldi, along with Lt. Page,
Major Olson, and R. Cowan (who is not a named defendant), strip searched Plaintiff and his
cellmate and searched their cell. No disciplinary report was issued at that time. Plaintiff asserts
that he was being harassed.

Approximately a week later, Plaintiff was called before the

Adjustment Committee for a hearing on charges regarding the possession of contraband. Lt.
Veath, chairperson of the Committee, did not give Plaintiff notice of the charges until the hearing
started; consequently, Plaintiff was unable to properly prepare and put on a defense. C/O Brock
falsely stated that Plaintiff had refused to sign for receipt of the disciplinary reports charging him
with disobeying an order and possessing dangerous contraband. It was only after the hearing that

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the disciplinary reports and a “shakedown slip” were slid under Plaintiff’s cell door. The falsity
of Lt. Veath’s hearing report is purportedly apparent because C/O Brock indicated Plaintiff was
served with the charges at 4:42 p.m., but Eovaldi and Slavens did not complete their reports until
5:00 p.m. and 5:05 p.m., respectively.
Plaintiff filed a grievance regarding his Adjustment Committee hearing. From his
perspective, Grievance Officer Lori Oakley denied the grievance based on her own version of
events, mirroring Lt. Veath’s findings.
The documents Plaintiff asserts prove his disciplinary conviction was concocted were
sent for copying. Plaintiff was transferred from Menard to Pontiac Correctional Center before
his documents, and copies were returned to him. Officials at Pontiac contacted Menard about the
documents, to no avail—they were never located.

Consequently, Plaintiff was unable to

meaningfully appeal the denial of his grievance (and disciplinary conviction). Sherry Benton
denied the appeal and affirmed the disciplinary conviction for possession of dangerous
contraband, despite insufficient evidence, and despite finding irregularities in the process,
including that the investigation occurred after the disciplinary hearing.
A second disciplinary incident occurred a few months later. C/O Fitzgerald charged
Plaintiff with disobeying an order after Plaintiff allegedly failed to stop flushing papers down a
toilet. Plaintiff contends that C/O Fitzgerald issued the disciplinary report in retaliation for
Plaintiff having filed grievances. Lt. Veath and the Adjustment Committee found Plaintiff guilty
of the offense, which Plaintiff asserts was just another act of retaliation.
Plaintiff appears to allege that all of the prison officials mentioned above conspired to
deny him due process, all in retaliation for seeking redress of his grievances.

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Count 5 alleges that Lt. Veath did not give Plaintiff notice of the charges against him 24
hours in advance of the hearing, and convicted him without proper investigation and sufficient
evidence, all in violation of the Fourteenth Amendment. This due process and retaliation claims
shall be permitted to proceed.
Count 6 alleges that Sherry Benton denied Plaintiff a meaningful way to challenge his
disciplinary conviction(s), in violation of the First Amendment and the Due Process Clause of
the Fourteenth Amendment. Merely “[r]uling against a prisoner on an administrative complaint
does not cause or contribute to the [constitutional] violation.” George v. Smith, 507 F.3d 605,
609 (7th Cir.2007; see also McGee v. Adams, 721 F.3d 474, 485 (7th Cir. 2013). Therefore, as
pleaded, the claim against Sherry Benton will be dismissed without prejudice. The retaliation
claim, however, shall proceed.
Count 7 presents the allegation that all those involved in the cell search, who wrote
disciplinary reports, and who were involved in the disciplinary and grievance processes, acted in
conspiracy to deny Plaintiff due process and to retaliate against him for seeking redress of his
grievances. “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, 636 F.3d at 304–05.
Ultimately, there must be “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.

Again, a mere assertion is insufficient to allege a

conspiracy. There is nothing from which to reasonably infer the requisite meeting of the minds.
Count 7 will be dismissed without prejudice.

Consequently, Defendants Law Library

Supervisor, Trust Fund Supervisor, C/O Slavens, C/O Brock, C/O Fitzgerald, Lori Oakley, Lt.

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Page, Major Olsen and Sgt. Eovaldi will all be dismissed without prejudice, as no other claims
remain against them.
Disposition
The Clerk of Court is DIRECTED to ensure that the record mirrors the style of the case
set forth in this Order.
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1 against Defendant
LAW LIBRARY SUPERVISOR is DISMISSED with prejudice.
IT IS FURTHER ORDERED that claims against TRUST FUND SUPERVISOR in
COUNT 2 regarding free speech and interference with litigation are DISMISSED with
prejudice, and the First Amendment retaliation claim is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the conspiracy claims against COUNSELOR
NIPIN in COUNT 3 are DISMISSED without prejudice, but the First Amendment retaliation
claim shall proceed.
IT IS FURTHER ORDERED that the conspiracy claims against WARDEN
HARRINGTON in COUNT 4 are DISMISSED without prejudice, but the First Amendment
retaliation claim shall proceed.
IT IS FURTHER ORDERED that the First Amendment retaliation claim and the
Fourteenth Amendment due process claim against Defendant LT. VEATH in COUNT 5 shall
proceed.
IT IS FURTHER ORDERED that the Fourteenth Amendment due process claim
against Defendant SHERRY BENTON in COUNT 6 is DISMISSED without prejudice, but
the First Amendment retaliation claim shall proceed.

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IT IS FURTHER ORDERED that COUNT 7, the conspiracy claim against ALL
DEFENDANTS, is DISMISSED without prejudice.
IT IS FURTHER ORDERED that Defendants LAW LIBRARY SUPERVISOR,
TRUST FUND SUPERVISOR, C/O SLAVENS, C/O BROCK, C/O FITZGERALD, LORI
OAKLEY, LT. PAGE, MAJOR OLSEN and SGT. EOVALDI are DISMISSED without
prejudice.
The Clerk of Court shall prepare for Defendants WARDEN HARRINGTON,
COUNSELOR NIPIN and LT. VEATH: (1) Form 5 (Notice of a Lawsuit and Request to
Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is
DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and Order to
each Defendant’s place of employment as identified by Plaintiff.

If a Defendant fails to sign

and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date
the forms were sent, the Clerk shall take appropriate steps to effect formal service on that
Defendant, and the Court will require that Defendant to pay the full costs of formal service, to
the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.

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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 WARDEN HARRINGTON, COUNSELOR NIPIN and LT. VEATH 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 Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States Magistrate for
disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to
such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis may have 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).

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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: March 30, 2015

NANCY J. ROSENSTENGEL
United States District Judge

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