West v. Atchison et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS FURTHER ORDERED that, should Plaintiff wish to proceed on his retaliation claim in COUNT 4, Plaintiff shall file an amended complaint within 35 days of the entry of this order. The Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form, in order to assist him in preparing an amended complaint. (Amended Pleadings due by 9/8/2014). Signed by Judge Michael J. Reagan on 8/1/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENTES WEST, # K-82893,

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Plaintiff,
vs.
MICHAEL P. ATCHISON,
CEDRIC A. McDONNOUGH,
C. JUDD, A. HOOD,
C/O ULEN, HUDSON,
C/O BAKER, TIMOTHY VEATH,
LINDA WHITESIDE, GROGG,
and UNKNOWN PARTY
(Health Care Officials),
Defendants.

Case No. 14-cv-788-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff, currently incarcerated at Menard Correctional Center (“Menard”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving sentences
for murder and armed robbery. He claims that while he was confined at Menard in 2012, various
Defendants failed to protect him from two gang-related attacks perpetrated by other inmates, and
he was denied pain medication for his injuries.
More specifically, Plaintiff states that beginning on April 17, 2012, and
continuing through late June 2012, he made repeated written and verbal requests to Menard
officials for protection from other inmates (Doc. 1, pp. 10-14). He had been threatened by
members of the Latin Folks gang, who had ordered a “hit” on him (Doc. 1, p. 18). On April 17,
while Plaintiff was housed in Menard’s North 2 Unit, he wrote to then-Warden Defendant
Atchison and to Defendant Whiteside (Menard Mental Health Director) asking for protection.
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He received no response from either.
On April 25, 2012, Plaintiff was moved back to the East cell house, where the
threat was greater. On May 9, 2012, he explained his concerns to Defendant McDonnough (a
correctional officer), and requested to be placed in protective custody (Doc. 1, p. 10). Defendant
McDonnough sent Plaintiff downstairs to wait. Defendant McDonnough returned with the cell
house sergeant and Defendant Judd. Plaintiff was handcuffed and Defendant Judd took him to
North 2 wing. On the way, Plaintiff learned he was being taken to segregation, not protective
custody, and the sergeant stated this was because Plaintiff had “refused housing” (Doc. 1, p. 11).
Plaintiff protested because he feared he was in greater danger of a “hit” from the problem
inmates in segregation. Defendant Judd became angry and tightened Plaintiff’s handcuffs to the
extent he had pain and numbness for several days. Defendant McDonnough issued Plaintiff a
disciplinary ticket for disobeying an order to lock up in his cell (Doc. 1, pp. 2, 29). Plaintiff
contends the ticket was fabricated, because he merely requested protective custody and did not
disobey any order or refuse housing.
As soon as Plaintiff was placed in segregation, he requested to speak to an
Internal Affairs officer about his safety. Over the next several days, Defendants Hood, Baker,
and Ulen put off Plaintiff’s requests, even though Plaintiff fully explained to them the basis for
his fear of an attack.
On May 11, 2012, Plaintiff appeared before Defendant Veath, who chaired the
disciplinary committee, for a hearing on the ticket issued by Defendant McDonnough (Doc. 1,
pp. 12, 29). Plaintiff stated that he had not refused housing, and explained his safety concerns.
Under Defendant Veath’s questioning, Plaintiff said that the officers were lying about the
incident. Defendant Veath became angry and found Plaintiff guilty of the infraction. He was

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punished with two months in segregation.
Soon after the hearing, Plaintiff was told by Defendant Ulen that Internal Affairs
would be coming to see Plaintiff, but the promised meeting did not happen on May 12. The next
day, Plaintiff wrote to Internal Affairs requesting an interview, and sent a second letter to
Defendant Atchison.
On May 15, 2012, Plaintiff sent an emergency grievance to Defendant Atchison
stating that he was in fear of imminent harm. He saw Defendant Hudson (Internal Affairs
officer) in passing, explained his concerns, and asked if he could stay in his single-man cell until
his segregation term was over. Defendant Hudson said he would look into the matter. On May
16, Plaintiff personally told Defendant Whiteside of his safety concerns, hoping for assistance
and to have those concerns documented (Doc. 1, p. 13).
On May 22, 2012, Plaintiff was moved to a different segregation cell, where he
was housed with another inmate (Martinez) whom he suspected of being a Latin Folks gang
member. He then found out Martinez was indeed a member of that gang, so Plaintiff lied to him
about his name. Plaintiff declined the opportunity to go out of the cell for recreation, to avoid
being noticed.
On June 10, 2012, Plaintiff wrote to his counselor (Rowold, who is not a
Defendant) to inquire about the emergency grievance he had sent to Defendant Atchison on May
15. On June 20, 2012, Plaintiff wrote to his new counselor (Paine), again inquiring about his
grievances, to which he had received no response. On June 22 and 24, 2012, Plaintiff contacted
his newest counselor, Defendant Grogg, about his missing grievances (Doc. 1, p. 14). Soon after
this, Plaintiff learned that a Latin Folks member known as “Smokey” was housed near him.
Plaintiff had specifically mentioned Smokey when he told Defendant Hudson about his fear that

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he would be harmed.
On July 2, 2012, Martinez (the Latin Folks cellmate) attacked Plaintiff in their
cell, hitting him repeatedly with a fan. Plaintiff did not fight back. He was taken to the Health
Care Unit with pain in his arm, knee, and shoulder, but the John/Jane Doe who treated him failed
to give Plaintiff any pain medication.
On July 4, Plaintiff wrote to Defendant Whiteside asking to move up his
appointment with her so he could tell her about the assault. He wrote another emergency
grievance to Defendant Atchison on July 12, and sent a copy to Defendant Grogg, informing
them of the assault by Martinez. In the grievance, he complained that his pleas for protection
had been ignored, and that officials had failed to protect him out of retaliation for an earlier
grievance Plaintiff had filed when he first arrived at Menard (Doc. 1, p. 14). Plaintiff does not
further describe the nature of that earlier grievance or its date.
On July 17, 2012, while Plaintiff was outside, he was assaulted for a second time
by “Smokey” and another Latin Folks member. This time, when no officers intervened to stop
the attack, Plaintiff eventually fought back, hitting Smokey while the other inmate was punching
Plaintiff on the back of his head. 1 Plaintiff was taken to Health Care with an eye injury,
headache, bruises, and minor bleeding. Again, he was not given any pain medication by the
unidentified health care worker. The next day (July 18, 2012), Plaintiff was transferred to
Pontiac Correctional Center.
In December 2012, Plaintiff had a video hearing before the Administrative
Review Board on his protective custody request, which had been denied by Pontiac officials
(Doc. 1, p. 15). Plaintiff was eventually approved for protective custody (Doc. 1, p. 9).
Plaintiff was issued tickets for fighting after both assaults and was found guilty in both cases, receiving
one month in segregation for each case (Doc. 1, pp. 30-31). He does not raise any claims in reference to
these disciplinary actions.

1

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Plaintiff seeks compensatory and punitive damages for the Defendants’ failure to
protect him from the two assaults despite his requests for protection; for denying him access to
the court by failing to answer his grievances; and for inadequate medical care after the assaults
(Doc. 1, p. 16).
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: Eighth Amendment claim for failure to protect Plaintiff from
the two assaults (on July 2 and July 17, 2012), against Defendants Atchison,
Whiteside, McDonnough, Hood, Ulen, Hudson, and Baker, and against Defendant
Grogg for failure to protect Plaintiff from the July 17 attack;
Count 2: Eighth Amendment claim for deliberate indifference to
Plaintiff’s need for pain medication following the two assaults, against the
Unknown (John/Jane Doe) Health Care Officials who treated Plaintiff on July 2
and July 17, 2012.
However, Plaintiff’s allegations regarding denial of access to the courts by those
Defendants who ignored his grievances (Count 3), and retaliation (Count 4) fail to state a claim
upon which relief may be granted, and shall be dismissed.
Count 1 – Failure to Protect from Assault
“[P]rison officials have a duty . . . to protect prisoners from violence at the hands
of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations omitted);
see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). In order to succeed on a claim
for failure to protect, a plaintiff must prove that prison officials were aware of a specific,

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impending, and substantial threat to his safety, often by showing that he complained to prison
officials about a specific threat. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words,
Defendants had to know that there was a substantial risk that those who attacked Plaintiff would
do so, yet failed to take any action. See Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir.
2001). However, conduct that amounts to negligence or inadvertence is not enough to state a
claim. Pinkston, 440 F.3d at 889 (discussing Watts v. Laurent, 774 F.2d 168, 172 (7th Cir.
1985)).
According to Plaintiff’s complaint, he explained his concerns about the threat
posed by the Latin Folks, and requested the Defendants listed in Count 1 above to protect him.
He did so in writing on four occasions to Defendant Atchison. It appears that Plaintiff only
asked Defendant Grogg for protection following the first attack, when he sent her a copy of his
emergency grievance on July 12, 2012. None of these Defendants took any steps to protect
Plaintiff or even to investigate his claims. At this stage of the litigation, this claim merits further
review.
However, Count 1 shall not proceed against Defendants Judd or Veath.
Defendant Judd merely escorted Plaintiff to segregation after the cell house sergeant ordered him
there. Plaintiff does not allege that he told Defendant Judd about the danger he believed he was
in or that he asked Defendant Judd to protect him – he merely states that he told Defendant Judd
he thought he was being sent to protective custody (Doc. 1, p. 11). While Plaintiff described the
pain he experienced after Defendant Judd tightened his handcuffs, he does not attempt to raise an
excessive force claim in this complaint. The factual statements regarding Defendant Judd do not
support a claim against him for failing to protect Plaintiff from a known, specific risk of attack.
Defendant Judd shall therefore be dismissed from the action without prejudice.

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Plaintiff’s only described encounter with Defendant Veath was the May 11, 2012,
hearing on the disciplinary ticket, where Plaintiff was charged with refusing housing/disobeying
an order (Doc. 1, pp. 12, 29). Plaintiff raised the defense that he had simply requested protective
custody and had not refused housing, but there is no indication that Plaintiff asked Defendant
Veath to protect him from any specific threat. Nor do the circumstances suggest that Defendant
Veath, who was presiding over Plaintiff’s disciplinary hearing, had any duty to take action to
secure protection for Plaintiff – instead, his responsibility was to determine whether Plaintiff was
guilty of the charged conduct. See Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009) (a
plaintiff may not impose liability on every prison official who is made aware of a possible
constitutional violation). Defendant Veath shall also be dismissed from the action without
prejudice.
One final point – in addition to the claim that Defendant Warden Atchison
personally failed to protect Plaintiff, he alleges that Defendant Atchison was “negligent” in
managing the staff under his supervision (Doc. 1, pp. 1, 15). Defendant Atchison may only be
held individually liable for his own action (or inaction) in response to Plaintiff’s requests for
protection. He cannot be held vicariously liable for any constitutional violations committed by
those under his supervision. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (the
doctrine of respondeat superior is not applicable to § 1983 actions).
Count 2 – Deliberate Indifference to Medical Needs
On both occasions following the attacks on Plaintiff, he informed the health care
workers who treated him that he was in pain, yet was given no medication for pain relief. This
claim also survives § 1915A review – however, the claim cannot proceed until Plaintiff identifies
by name the individuals who refused to provide pain treatment. In order to facilitate Plaintiff’s

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ability to conduct discovery to identify these Unknown Defendants, the current Warden of
Menard (Kimberly Butler) shall be added as a party so that she may respond to Plaintiff’s
discovery requests. See Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 555-56 (7th Cir.
1996) (collecting cases) (court may employ various means to facilitate pro se prisoner’s
discovery of identities of parties who may have violated his rights).
Dismissal of Count 3 – Denial of Access to Courts
Plaintiff asserts that the failure of Defendants Atchison, Grogg, and others to
respond to his grievances denied him access to the courts (Doc. 1, pp. 13, 16). However,
Plaintiff has succeeded in bringing this lawsuit, and fails to identify any way in which any
Defendant has hindered him from doing so. In order to sustain an access-to-courts claim,
Plaintiff 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 Ortiz v. Downey,
561 F.3d 664, 671 (7th Cir. 2009) (plaintiff must connect defendants’ conduct to his “inability to
pursue a legitimate challenge to a conviction, sentence, or prison conditions”); Lehn v. Holmes,
364 F.3d 862, 868 (7th Cir. 2004). Plaintiff makes no such connection.
It is true that prisoners are required to exhaust their administrative remedies
through the grievance procedure before bringing a civil rights suit. 42 U.S.C. § 1997e(a). A
defendant who believes a plaintiff failed to do so may raise non-exhaustion as an affirmative
defense. If such a defense is raised, the alleged lack of response to Plaintiff’s grievances will be
relevant to the question of exhaustion. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.
2002) (the failure to respond to inmate grievances makes the administrative remedy process
“unavailable”).

However, the failure to respond to grievances does not amount to an

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independent constitutional claim. Prison grievance procedures are not constitutionally required,
and the failure of state prison officials to follow their own grievance procedures does not, of
itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v.
Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). Therefore, Count 3 shall be dismissed with
prejudice.
Dismissal of Count 4 – Retaliation
Finally, Plaintiff asserts that the officials who failed to protect him from the
attacks were motivated by the desire to retaliate against him for a grievance he had filed when he
arrived at Menard. However, he does not describe that grievance – there is no indication of the
subject, the date it was filed, or which Defendant(s) were named in the grievance. Further,
Plaintiff does not say whether one, some, or all of the named Defendants engaged in retaliation
on account of the grievance.
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). The pleading requirements for a retaliation claim are not
onerous – a plaintiff merely needs to identify the protected act that prompted the retaliation, the
act of retaliation, and state which defendant(s) retaliated against him. “All that need be specified
is the bare minimum facts necessary to put the defendant on notice of the claim so that he can
file an answer.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
As pled, Plaintiff’s retaliation claim is too vague regarding the earlier grievance to
put any Defendant on notice of the basis for the claim. Further, Plaintiff did not indicate which
Defendant(s) allegedly had a retaliatory motive when they refused to take protective measures.

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Therefore, if Plaintiff wishes to pursue his retaliation claim, he must submit an amended
complaint that includes this additional information.

Count 4 shall be dismissed without

prejudice, with leave to amend.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the
United States Magistrate Judge for further consideration.
Disposition
The Clerk is DIRECTED to add Menard Warden KIMBERLY BUTLER as a
Defendant for the purpose of responding to Plaintiff’s discovery requests.
COUNT 3 is DISMISSED with prejudice for failure to state a claim upon which
relief may be granted. COUNT 4 is DISMISSED without prejudice and with leave to amend,
for failure to state a claim upon which relief may be granted. Defendants JUDD and VEATH
are DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that, should Plaintiff wish to proceed on his
retaliation claim in COUNT 4, Plaintiff shall file an amended complaint (to be labeled “First
Amended Complaint”), within 35 days of the entry of this order (on or before September 8
2014). If the amended complaint still fails to state a claim as to Count 4, or if Plaintiff does not
submit an amended complaint, the dismissal of Count 4 shall become a dismissal with prejudice.
The amended complaint shall be subject to review pursuant to § 1915A.
An amended complaint supersedes and replaces the original complaint, rendering
the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638
n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must stand on its own, and in addition to Count 4, must also

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contain the allegations in Counts 1 and 2, which shall receive further review as determined
above. In other words, all the claims must be presented in a single document. Plaintiff must also
re-file any exhibits he wishes the Court to consider along with the First Amended Complaint.
Plaintiff may proceed with his claims in Counts 1 and 2 even if he chooses not to submit an
amended complaint as to Count 4.
The Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form, in
order to assist him in preparing an amended complaint.
The Clerk of Court shall prepare for Defendants ATCHISON, McDONNOUGH,
HOOD, ULEN, HUDSON, BAKER, WHITESIDE, GROGG 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 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.
Service shall not be made on the Unknown (John/Jane Doe) Defendants until such
time as Plaintiff has identified them by name in a properly filed amended complaint. Plaintiff is
ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and service
addresses for these individuals.
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

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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 Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams 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

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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: August 1, 2014
s/ MICHAEL J. REAGAN
United States District Judge

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