Postlewaite v. Tredway et al

Filing 12

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, denying 9 MOTION for Preliminary Injunction filed by Jarvis Lamar Postlewaite and 10 MOTION for Hearing re 8 Amended Complaint, filed by Jarvis Lamar Postlewaite.. Signed by Judge J. Phil Gilbert on 12/10/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JARVIS LAMAR POSTLEWAITE,
No. R25461,

)
)
)
Plaintiff,
)
)
vs.
)
)
WARDEN TREDWAY,
)
WARDEN MOORE,
)
CHAPLIN VAUGHN,
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COUNSELOR WILLIAMS,
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SALVADOR GODINEZ.
)
WARDEN DUNCAN,
)
UNKNOWN DIETARY SUPERVISORS,
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UNKNOWN MAILROOM SUPERVISORS, )
JOHN COE,
)
PHILLIP MARTIN,
)
)
Defendants.
)

Case No. 14-cv-00930-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Jarvis Lamar Postlewaite, an inmate in Lawrence Correctional Center, initiated
this action in August 2014. His original complaint sought only injunctive relief, in the form of
medical and mental health treatment, and a transfer to another prison in order to avoid physical
injury and retaliation. However, the pleading also outlined eight counts, suggestive of a civil
rights complaint pursuant to 42U.S.C. § 1983 and supplemental state law tort claims. The
complaint failed to state a claim upon which relief could be granted and was dismissed without
prejudice (see Doc. 5). Plaintiff was granted leave to file an amended complaint. He was
warned that failure to file an amended complaint would result in the dismissal of this action and
the assessment of a strike for purposes of 28 U.S.C. § 1915(g). Plaintiff attempted to file an

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amended complaint by interlineation, asserting only a claim that he was denied access to the
commissary, but it was stricken (see Doc. 7).
Plaintiff’s most recent amended complaint (Doc. 8) is now before the Court for a
preliminary review of the pleading pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must
cross “the line between possibility and plausibility. Id. at 557.

At this juncture, the factual

allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Amended Complaint
The amended complaint (Doc. 8) has dropped a few defendants named in the original
complaint and added others. Plaintiff now asserts six separate claims, similar to the eight civil
rights claims in the original complaint:

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Count 1: Phillip Martin, Elizabeth Tredway, and “Jane/John Doe” denied
Dr. Coe’s request that Plaintiff be permitted to see an ear
specialist, in violation of the Eighth Amendment;
Count 2: Chaplain Vaughn denied Plaintiff’s request to be placed on a
Ramadan diet and eating schedule, in violation of the First
Amendment; as a result, Plaintiff received inadequate nutrition in
violation of the Eighth Amendment;
Count 3: Counselor Williams did not respond to Plaintiff’s grievances, in
violation of the Fourteenth Amendment;
Count 4: Mailroom officials opened several legal letters in violation of
IDOC rules and regulations;
Count 5: Knowing that Plaintiff was allergic to tomatoes, Dr. John Coe
failed to issue an order directing the Dietary Department to not
serve Plaintiff tomatoes, in violation of the Eighth Amendment;
and
Count 6: IDOC Director Salvador Godinez has not responded to any of
Plaintiff’s letters complaining about his constitutional claims.
Plaintiff seeks declaratory relief, compensatory and punitive damages, and injunctive
relief.
Discussion
Count 1
Plaintiff alleges that Phillip Martin, Elizabeth Tredway, and “Jane/John Doe” denied Dr.
Coe’s request that Plaintiff be permitted to see an ear specialist, in violation of the Eighth
Amendment. The claim, as stated, is no more than an assertion. The amended complaint does
not offer minimum amount of factual underpinnings necessary to state a claim that is plausible,
not merely possible.
Prison officials can 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
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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). There are no allegations suggesting a serious medical need,
let alone deliberate indifference by Martin, Tredway and the unidentified “Jane/John Doe,” who
is not even listed as a defendant. Therefore, Count 1 will be dismissed without prejudice.
Plaintiff acknowledges that Count 1 is tangentially related to another pending action in
this district, Postelwaite v. Cole, Case No. 14-cv-717-NJR (S.D. Ill. 2014). At this juncture, the
Court cannot discern whether Count 1 belongs as part of that other case.
Count 2
Count 2 alleges that Chaplain Vaughn denied Plaintiff’s request to be placed on a
Ramadan diet and eating schedule in violation of the First Amendment; as a result, Plaintiff
received inadequate nutrition in violation of the Eighth Amendment.

Under the liberal notice

pleading standard, the Court will permit Count 2 to proceed.
Count 3
As framed in Count 3, it is alleged that Counselor Williams failed to respond to
Plaintiff’s grievances, in violation of the Fourteenth Amendment. As a result, Plaintiff contends
he was unable to exhaust administrative remedies, as is required under 42 U.S.C. § 1997e(a).
The Seventh Circuit has made it clear that “a state’s inmate grievance procedures do not
give rise to a liberty interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d
1422, 1430 (7th Cir. 1996). The Constitution requires no procedure at all, and the failure of state
prison officials to follow their own 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). Furthermore, Plaintiff does not need a response from his counselor to move forward

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with a grievance, and then a lawsuit. See 20 Ill. Admin. Code § 504.810(a); Owens v. Hinsley,
635 F.3d 950, 955 (7th Cir. 2011). Furthermore, Plaintiff has also failed to allege any prejudice
suggesting a First Amendment claim. Therefore, Count 3 will be dismissed with prejudice.
Count 4
Count 4 pertains to the general assertion that “several legal letters [were] opened by
officials in the mailroom” (Doc. 8, p. 8). This claim is flawed in that no named defendant is
involved. 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 violation of IDOC rules and regulations, alone, does not
violate the Constitution. See 42 U.S.C. § 1983. The claim also lacks the minimal factual
underpinnings required under the Twombly pleading standard.

Count 4, therefore, will be

dismissed without prejudice.
Count 5
Count 5 pertains to the allegation that, knowing that Plaintiff was allergic to tomatoes,
Dr. John Coe failed direct the Dietary Department to not serve Plaintiff tomatoes, thereby
violating the Eighth Amendment.

According to the amended complaint, Dr. Coe merely

instructed Plaintiff to tell the Dietary Department not to serve him tomatoes.

Given that

tomatoes are an ingredient in so many foods and an allergic reaction can be life threatening, and
considering Coe’s flippant response, Plaintiff has stated a colorable Eighth Amendment claim
against Dr. Coe.

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Count 6
Count 6 is premised upon the allegation that Plaintiff wrote to IDOC Director Salvador
Godinez regarding “all the acts taken against him,” but Godinez never responded. As pleaded,
the amended complaint does not sufficiently indicate what knowledge was imparted to Director
Godinez. Also, as previously noted, failing to answer letters and grievances, does not, alone,
violate Plaintiff’s constitutional rights. “[A] state’s inmate grievance procedures do not give rise
to a liberty interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422,
1430 (7th Cir.1996). In order to be held individually liable, a defendant must be “personally
responsible for the deprivation of a constitutional right.” 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)). The
alleged mishandling of grievances “by persons who otherwise did not cause or participate in the
underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011).
Therefore, Count 6 will be dismissed without prejudice.
Personal Involvement
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 amended complaint does not state claims against
Warden Duncan, the Unknown Dietary Supervisors, the Unknown Mailroom Supervisors, or
Warden Moore. Although letters from Plaintiff to “the Mailroom,” “Dietary Supervisor,” and
Warden Moore” are attached to the amended complaint, the Court is not responsible for wholly
creating claims on Plaintiff’s behalf.

Therefore, Warden Duncan, the Unknown Dietary

Supervisors, the Unknown Mailroom Supervisors and Warden Moore will be dismissed without
prejudice.

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Severance
Count 2, the religious diet/nutrition claim against Chaplain Vaughn, and Count 5, the
deliberate indifference claim against Dr. Coe, both state colorable claims. However, “[u]nrelated
claims against different defendants belong in different suits[.]” George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007). Otherwise, prisoners easily could sidestep the requirements of the Prison
Litigation Reform Act of 1995 (“PLRA”), Pub.L. No. 104–134, 110 Stat. 1321 (1996), in
particular the PLRA’s provisions regarding filing fees. See id. Rule 18 provides, in relevant
part, that “[a] party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as
independent or alternative claims, as many claims as it has against an opposing party.”
Fed.R.Civ.P. 18(a). Accordingly, “multiple claims against a single party are fine, but Claim A
against Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George,
507 F.3d at 607.
Rule 20 of the Federal Rules of Civil Procedure similarly applies with as much force to
cases brought by prisoners as it does to any other kind of case. See id. Under Rule 20, persons
may be joined in one action as defendants if: “(A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (B) any question of law or fact common
to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2). Both of the requirements of
Rule 20(a) must be satisfied in order to sustain party joinder under the rule. See Intercon
Research Associates., Ltd. v. Dresser Industries, 696 F.2d 53, 57 (7th Cir. 1982). Accordingly,
“[a] buckshot complaint that would be rejected if filed by a free person—say, a suit complaining
that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E
infringed his copyright, all in different transactions—should be rejected if filed by a prisoner.”

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George, 507 F.3d at 607.
The amended complaint, as a whole, is the sort of buckshot complaint George prohibits.
Count 2 and Count 5 state colorable claims, but each count is brought against a different
defendant, and those two claims have nothing to do with each other. Counts 1, 4 and 6 are being
dismissed without prejudice—meaning that Plaintiff is not foreclosed from attempting to replead those claims. However, even if the pleading errors are corrected, those claims would have
to proceed in separate, new cases.
Consistent with George, Count 2 will proceed in this action, and Count 5 will be severed
from this case.

A separate case will be opened for Count 5.

Plaintiff will be given an

opportunity to voluntarily dismiss the newly severed case (Count 5) if he does not wish to
proceed or incur the additional filing fee that must be assessed for that new case.
Counts 1, 4 and 6, will be dismissed without prejudice—meaning that Plaintiff can,
theoretically, re-plead those claims. As already noted, if Plaintiff elects to proceed with those
claims, he will have to open one or more new cases.
Pending Motions
Counsel
Plaintiff’s motion for appointment of counsel (Doc. 2) will be referred to a magistrate
judge for consideration.
Preliminary Injunction
A review of Plaintiff’s motion for preliminary injunction (Doc. 9) reveals that it pertains
to defendants and issues not relevant to Count 2 (or any of the claims in the amended complaint,
for that matter). More specifically, Plaintiff seeks: (1) a permit to order headphones, as
opposed to ear buds; (2) a transfer to a facility that provides protective custody; (3) a transfer to

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Shawnee Correctional Center, “if protective custody is restricted due to clear signs of
discrimination and retaliation”; and (4) mental health treatment or a transfer. Count 2 pertains to
Chaplain Vaughn (to whom the motion is not directed) and the denial of a Ramadan diet and
resulting nutritional inadequacies. Count 5 pertains to Dr. Coe and his failure to ensure that
Plaintiff is not served tomatoes. Because the motion for a preliminary injunction is not relevant
to either Count 2 or Count 5, it will be denied as moot.
Status Hearing
Plaintiff’s motion for a status hearing regarding the amended complaint (Doc. 10) will be
denied as moot, as this order addresses the amended complaint in full.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNTS 1, 4 and 6 and
Defendants WARDEN DUNCAN, WARDEN TREDWAY, UNKNOWN DIETARY
SUPERVISORS, UNKNOWN MAIL SUPERVISORS, PHILLIP MARTIN, WARDEN
MOORE and SALVADOR GODINEZ are all DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNT 3 and Defendant COUNSELOR
WILLIAMS are DISMISSED with prejudice.
IT IS FURTHER ORDERED that COUNT 2, the religious diet claim against
Defendant CHAPLAIN VAUGHN shall PROCEED in this action.
IT IS FURTHER ORDERED that COUNT 5, the medical deliberate indifference claim
against Defendant JOHN COE is SEVERED into a new case. The Clerk is DIRECTED to file
the following documents in the newly created case:
1.

This Memorandum and Order; and

2.

The Amended Complaint (Doc. 8).

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Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with the newlyopened cases, he must notify the Court in writing on or before January 16, 2015. Service will
not be ordered on Defendant JOHN COE until after the deadline for Plaintiff’s response.
However, the Clerk shall TERMINATE JOHN COE as a defendant in the instant action.
Unless Plaintiff notifies the Court that he does not wish to pursue the newly opened
actions, Plaintiff will be responsible for an additional filing fee for the new case (relative to
Count 5). If Plaintiff elects to proceed with the severed case, he must either pay the full $400
filing fee when he makes that election, or file a motion to proceed in formal pauperis.
Plaintiff will have to file anew any motion(s) filed in the present case that he desires to
pursue in the newly severed case—no motions are being carried over into the new case.
IT IS FURTHER ORDERED that Plaintiff’s motion for a preliminary injunction (Doc.
9) and motion for status hearing (Doc. 10) are both DENIED as moot.
The Clerk of Court shall prepare for Defendant CHAPLAIN VAUGHN: (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 Vaughn’s place of employment as identified by
Plaintiff.
If Defendant Vaughn 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 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 Vaughn 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,

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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 Vaughn 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

a United States

Magistrate Judge for further pre-trial proceedings, including consideration of Plaintiff’s motion
for appointment of counsel (Doc. 2).
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

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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: December 10, 2014
s/J. Phil Gilbert
United States District Judge

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