Talley v. Butler

Filing 13

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier and DENYING as MOOT 12 MOTION for Status Update MOTION to Copy. Salvador Godinez, Jennifer Clendenin, and Counselor Ms Nippi are DISMISSED from this action with prejudice. Plaintiff m ay proceed on COUNT 1 against Defendants BUTLER, PREVIOUS WARDEN, DIETARY SUPERVISOR, and HEAD CHAPLAIN; COUNT 2 against Defendants BUTLER, PREVIOUS WARDEN, SEGREGATION PROPERTY OFFICER, and HILL;COUNT 3 against Defendant BUTLER; and COUNT 4 against Defendant BUTLER andPREVIOUS WARDEN. Signed by Judge J. Phil Gilbert on 12/22/2014. (mkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DURWYN TALLEY, #B-52081,
Plaintiff,
vs.
WARDEN BUTLER, ET AL.,
Defendants.

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Case No. 14-cv-976-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Durwyn Talley, currently incarcerated at Menard Correctional Center
(“Menard”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
initially filed only a motion requesting immediate injunctive relief. (Doc. 1). In an Order dated
September 30, 2014 (Doc. 10), the Court advised Plaintiff that he must first file a complaint in
compliance with Rule 3 of the Federal Rules of Civil Procedure, before the Court could conduct
a preliminary review of the case, as required by 28 U.S.C. § 1915(A). The Court explained in
detail the importance of the complaint and provided guidance on what the complaint should
contain. The Court denied without prejudice the motion for immediate injunctive relief (Doc. 1)
and ordered Plaintiff to file a complaint by November 4, 2014. Plaintiff has complied. (See Doc.
11).
The matter is now before the Court for review of Plaintiff’s complaint. (Doc. 11). The
complaint outlines multiples claims against nine Defendants.

Under § 1915A, the Court is

required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C.
§ 1915A(a).

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). 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. Conversely, a
complaint is plausible on its face “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual
allegations as true, some factual allegations may be so sketchy or implausible that they fail to
provide sufficient notice of a plaintiff’s claim. Smith v. Peters, 631 F.3d 418, 419 (7th Cir.
2011); Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not
accept as adequate abstract recitations of the elements of a cause of action or conclusory legal
statements.” Id. At the same time, however, the factual allegations of a pro se complaint are to be
liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
2009).
Upon careful review of the complaint, the Court finds it appropriate to exercise its
authority under § 1915A; portions of this action fail to state a claim and are thus subject to
dismissal.
Discussion
Plaintiff’s complaint asserts multiple claims, many of which are wholly unrelated except
for his assertion that Defendant Butler (head warden) is responsible for supporting, condoning,

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or perpetuating policies that resulted in the various violations. Plaintiff is reminded that he may
not bring several unrelated claims against different Defendants. Such unrelated matters are
subject to severance into one or more separate actions. See George v. Smith, 507 F.3d 605 (7th
Cir. 2007) (unrelated claims against different defendants belong in separate lawsuits). In the
future, Plaintiff is warned that if he wishes to avoid severance, and the filing fees which shall
attach, he should limit his complaint to claims that are factually and legally related.
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
finds it appropriate to organize the claims in Plaintiff’s pro se complaint, as shown below. The
parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of these counts does not
constitute an opinion as to their merit. The facts related to each claim are summarized below:
Count 1:

Denial of Kosher Diet

Plaintiff claims that he was denied his religious kosher diet from April 9, 2014 until July
1, 2014. (Doc. 11, p. 10). Plaintiff asserts that the head chaplain and “warden”1 ignored his
requests and grievances during that time.

In July 2014, Plaintiff received a kosher diet.

However, beginning in August 2014 until the present time, Plaintiff maintains that he has been
served “spoiled, nasty-smelling, and nasty-tasting non-kosher” food that has made him vomit,
given him headaches and severe stomach pain, and caused him to lose over 20 pounds. Id.
Plaintiff further states that this is a custom or policy adopted by Defendants Butler (head
warden), previous warden, dietary supervisor, the head chaplain, and Godinez (director of
Illinois Department of Corrections (“IDOC”)). Id.

1

Plaintiff names Warden Butler and the “previous warden” as Defendants; it is unclear which “warden” Plaintiff is
referring to here.
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Count 2:

Conditions of Confinement

Plaintiff claims that while in segregation he has been denied the right to purchase basic
necessities (i.e., t-shirt, underwear, and shower shoes). Id. He also asserts that Defendant Hill
and the segregation property officer have not allowed him to retrieve such necessities from his
personal property. Id. Moreover, Plaintiff states that he has been forced to sleep on a “urine and
feces-stained mattress with no mattress covering” for the past six months. Id. In addition,
Plaintiff asserts that he has been denied sufficient cleaning supplies and the water in his cell is
“foul-smelling.” Id. at 12. He also complains that there are no security buttons inside the cells
and that there are no correctional officers stationed on the galleries. Id. Plaintiff maintains that
these conditions are a result of policies adopted by Defendant Butler and the previous warden.
Id. at 11. Plaintiff has filed grievances with Defendant Butler and the previous warden regarding
the conditions, but they have ignored his grievances and failed to address the issues. Id.
Count 3:

Retaliation

Plaintiff asserts that various prison officials have retaliated against him for filing
grievances and lawsuits. Specifically, Plaintiff alleges that Defendant Butler has a policy of
allowing inmates in segregation who have gone 60 days without a ticket access to their
television, but that Butler has denied Plaintiff his television and other audio-visuals in retaliation
for Plaintiff filing grievances and lawsuits. Id. Plaintiff alleges that other inmates with similar
or worse charges have received their televisions within two months, whereas Plaintiff has been in
segregation for seven months and still has not been given access to his television. Id.
Plaintiff further maintains that “prison staff” at Menard and Danville conspired against
him by confiscating his books and “adult magazines by women” when he was transferred from
Danville to Menard as “part of a state-wide custom and policy of retaliation against the plaintiff.”

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Id.
Count 4:

Delays in Incoming and Outgoing Mail

Plaintiff claims that Defendants Butler, the previous warden, and Godinez have adopted a
policy of delaying the incoming and outgoing mail of Plaintiff and other inmates in segregation,
sometimes for over a month. Id.
Count 5:

Interference with Access to Courts

Plaintiff alleges that Defendants Butler, the previous warden, Counselor Hill, Clendenin
(law librarian), and Godinez have also established a policy of denying Plaintiff and other
segregation inmates sufficient (and/or timely) access to pens, paper, money vouchers,
grievances, legal research, and his own legal documents, which hampers Plaintiff’s access to the
courts. Id. at 11. Moreover, Plaintiff claims that Defendants allow Plaintiff (and other inmates
in segregation) to spend only $15.00 a month at the commissary in violation of IDOC’s own
rules and regulations. This limit on spending at the commissary, Plaintiff asserts, further hinders
his ability to access the courts because he is unable to buy the supplies he needs to litigate. Id.
Count 6:

Mishandling of Grievances

Plaintiff alleges that “prison staff” have thrown away or ignored every emergency
grievance Plaintiff has submitted. Id. at 12. Plaintiff maintains that this is a policy and practice
adopted by the institution.
Discussion
Accepting Plaintiff’s allegations as true, as the Court must do at this preliminary stage,
the Court finds that Plaintiff has articulated the following colorable federal claims, which shall
receive further review:

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Count 1: Against Defendants Butler, the previous warden, dietary supervisor, and head
chaplain2 for denying him a kosher diet in violation of the First Amendment.

The Religious

Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.,3 does not
provide a cause of action for money damages against officials in their individual capacity, see
Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009), or official capacity, see Sossamon v.
Texas, 131 S. Ct. 1651, 1655 (2011). Therefore, Plaintiff may not pursue a claim for damages
against any Defendants under RLUIPA. However, Plaintiff may pursue injunctive relief under
both the First Amendment and RLUIPA against Defendant Butler, in her official capacity only;4
Count 2: Against Defendants Butler, the previous warden, the segregation property
officer,5 and Hill for unconstitutional conditions of confinement in violation of the Eighth
Amendment;
Count 3: Against Defendant Butler for treating Plaintiff differently than other inmates in
segregation in retaliation for Plaintiff filing grievances and lawsuits in violation of the First
Amendment. Plaintiff also asserts a general claim against “prison staff” at Danville and Menard
Correctional Centers, but does not name them as Defendants in the caption. Under 28 U.S.C. §
1983, only individuals may be held liable, not groups. See Will v. Michigan Dep't of State

2

Plaintiff has not provided the name of the previous warden, the dietary supervisor, and head chaplain. The Seventh
Circuit has held, however, that where a prisoner’s complaint states specific allegations describing conduct of
individual prison staff members sufficient to raise a constitutional claim, but the names of those defendants are not
known, the prisoner should have the opportunity to engage in limited discovery to ascertain the identity of those
defendants. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). “[E]ventually the plaintiff
must discover the names of the defendants in order to serve summonses on them . . . . But his initial inability to
identify the injurers is not by itself a proper ground for the dismissal of the suit.” Billman v. Indiana Dept. of Corr.,
56 F.3d 785, 789 (7th Cir. 1995).
3
Plaintiff also refers to the Religious Freedom and Restoration Act, but the Supreme Court has held that RFRA may
not be applied against state or local governments. See City of Boerne v. Flores, 521 U.S. 507 (1997).
4
Typically, in a claim for injunctive relief, the government official who is responsible for carrying out the requested
relief would be named as a defendant in his or her official capacity. See Gonzalez v. Feinerman, 663 F.3d 311, 315
(7th Cir. 2011). In the context of prison litigation, the official is usually the warden of the institution where the
inmate is incarcerated.
5
As with the other unnamed Defendants, Plaintiff will be afforded an opportunity to engage in limited discovery to
identify this individual by name.
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Police, 491 U.S. 58, 70 (1989). All claims against “prison staff” shall be dismissed without
prejudice to Plaintiff filing an amended complaint identifying individual staff members who he
asserts were responsible.
Count 4: Against Defendants Butler and the previous warden for adopting a policy of
delaying Plaintiff’s incoming and outgoing mail in violation of the First Amendment.
Dismissed Claims
Plaintiff fails to state a claim upon which relief may be granted for interfering with
Plaintiff’s ability to access the courts (Count 5) and for failing to properly handle his grievances
(Count 6). These claims shall be dismissed from this action for the reasons that follow.
In addition, Plaintiff fails to state a claim upon which relief may be granted against
Defendant Godinez. Plaintiff includes Godinez as a defendant in several of the counts, but he
fails to explain how Godinez was personally involved in any of the alleged unconstitutional
activities. Presumably he names Godinez as a Defendant simply because he is director of the
Illinois Department of Corrections.
However, there is no supervisory liability in a § 1983 action; thus 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). A civil rights action against state officials under 42
U.S.C. § 1983 is “a cause of action based upon personal liability and predicated upon fault; thus,
liability does not attach unless the individual defendant caused or participated in a constitutional
deprivation.” Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994) (citing Wolf-Lillie v.
Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)); see also Pepper v. Village of Oak Park, 430 F.3d
809, 810 (7th Cir. 2005). Unlike Warden Butler and the previous warden, Plaintiff does not

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claim that he informed Defendant Godinez about any of his claims or that Defendant Godinez
ignored his requests for relief. As such, all claims against Defendant Godinez shall be dismissed
and he shall be dismissed as a Defendant from this action.
Further, Plaintiff lists Counselor Nippi and C/O Fitzgerald6 as Defendants in the caption,
but makes no allegations against either of them in the body of the complaint. Plaintiffs are
required to associate specific defendants with specific claims, so that defendants are put on
notice of the claims brought against them and so they can properly answer the complaint. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a)(2). Where a
plaintiff has not included a defendant in his statement of the claim, the defendant cannot be said
to be adequately put on notice of which claims in the complaint, if any, are directed against him.
Furthermore, merely invoking the name of a potential defendant is not sufficient to state a claim
against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Accordingly,
Defendants Nippi and Fitzgerald will also be dismissed from this action.
Count 5:

Interference with Access to Courts

In order to proceed on an access to courts claim, a prisoner must show actual substantial
prejudice to specific litigation. Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir. 1992), cert. denied,
506 U.S. 1062 (1993). “[T]he mere denial of access to a prison law library or to other legal
materials is not itself a violation of a prisoner’s rights; his right is to access the courts, and only
if the defendants’ conduct prejudices a potentially meritorious challenge to the prisoner’s
conviction, sentence, or conditions of confinement has this right been infringed.” Marshall v.
Knight, 445 F.3d 965, 968 (7th Cir. 2006).

6

Although C/O Fitzgerald is listed in the caption, Plaintiff states at the end of his complaint, “C/O Fitzgerald will
not be in this complaint.” (Doc. 11, p. 16).
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Although Plaintiff describes several policies adopted by Defendants that he believes
interferes with his ability to litigate, Plaintiff does not allege, and the complaint does not suggest,
that he has suffered actual prejudice in any of his pending cases. Accordingly, Count 5 shall be
dismissed without prejudice against all Defendants. As this is the only claim against Defendant
Clendenin, she will also be dismissed from this action.
Count 6:

Failure to Respond to Grievances

“[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). See also Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); Grieveson v.
Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th Cir.
2007).

As such, Plaintiff’s allegation that prison officials have failed to respond to his

grievances fails to state a claim. Count 6 shall be dismissed against all Defendants.
Request for Immediate Injunction
In his prayer for relief, Plaintiff requests monetary damages, as well as “an immediate
injunction on all of the aforementioned.” (Doc. 11, p. 17). This is the only mention of immediate
injunctive relief made throughout the entire complaint, and except for a request for an immediate
transfer to another prison, Plaintiff fails to specify what precisely he seeks to enjoin.
The United States Supreme Court has emphasized that a “preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 870
(7th Cir. 2006) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in

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original)). As to the serious nature of Plaintiff’s request, the Court notes that in both Plaintiff’s
motion for immediate injunctive relief (Doc. 1), which the Court denied without prejudice, as
well as the present complaint (Doc. 11), Plaintiff makes no attempt to discern between claims
where more immediate injunctive relief might be appropriate (i.e., his claim that he has been
denied a kosher diet) and claims that clearly do not warrant immediate relief (i.e., lack of access
to his television). The Court cannot be put in the position of guessing what relief Plaintiff seeks.
Moreover, Plaintiff offers no documentation to support his request for this drastic remedy. As
such, without expressing any opinion on the merits of any of Plaintiff’s other claims for relief,
the Court is of the opinion that neither a TRO nor a preliminary injunction should be issued in
this matter at this time.
If Plaintiff wishes to pursue a preliminary injunction or temporary restraining order, he
may request either or both in a separate motion. However, the motion should specifically
identify what Plaintiff seeks to enjoin and any relevant facts in support of the motion. Plaintiff
should bear in mind that a TRO is an order issued without notice to the party to be enjoined that
may last no more than 14 days. FED. R. CIV. P. 65(b)(2). A TRO may issue without notice only
if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B) the movant’s attorney
certifies in writing any efforts made to give notice and the reasons why it should
not be required.
FED. R. CIV. P. 65(b)(1) (emphasis added). Likewise, in considering whether to grant injunctive
relief, a district court must weigh the relative strengths and weaknesses of a plaintiff’s claims in
light of a five-part test that has long been part of the Seventh Circuit’s jurisprudence.

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Specifically, a plaintiff must establish: (1) that there is a reasonable or substantial
likelihood that he would succeed on the merits; (2) that there is no adequate remedy at law; (3)
that absent an injunction, he will suffer irreparable harm; (4) that the irreparable harm suffered
by plaintiff in the absence of the injunctive relief will outweigh the irreparable harm that
defendants will endure were the injunction granted; and (5) that the public interest would be
served by an injunction. Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking, 176 F.3d
1004, 1011 (7th Cir. 1999); Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010); Pro’s Sports Bar
& Grill, Inc. v. City of Country Club Hills, 589 F.3d 865, 872-73 (7th Cir. 2009).
Pending Motions
Plaintiff has filed a motion for status update in which he requests copies of any filings by
the Court or attorneys. (Doc. 12). Since the Court’s last Order (Doc. 10), which Plaintiff
confirms he received, no additional Orders or documents have been filed. The current order
serves as an update on the status of this case, and will be delivered to Plaintiff. As such,
Plaintiff’s motion is DENIED as MOOT.
Disposition
IT IS HEREBY ORDERED that Defendants GODINEZ, NIPPI, and CLENDININ
are DISMISSED from this action with prejudice.
IT IS FURTHER ORDERED that Plaintiff may proceed on his claim for damages on
the following claims: COUNT 1 against Defendants BUTLER, PREVIOUS WARDEN,
DIETARY SUPERVISOR, and HEAD CHAPLAIN; COUNT 2 against Defendants
BUTLER, PREVIOUS WARDEN, SEGREGATION PROPERTY OFFICER, and HILL;
COUNT 3 against Defendant BUTLER; and COUNT 4 against Defendant BUTLER and
PREVIOUS WARDEN.

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IT IS FURTHER ORDERED that Plaintiff may proceed on his claims for injunctive
relief on COUNTS 1, 2, 3, and 4 against Defendant BUTLER, in her official capacity.
COUNT 5 is DISMISSED without prejudice and COUNT 6 is DISMISSED with
prejudice for failure to state a claim upon which relief may be granted.
The Clerk of Court shall prepare for Defendants BUTLER and HILL: (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 PREVIOUS WARDEN, DIETARY SUPERVISOR,
HEAD CHAPLAIN, and SEGREGATION PROPERTY OFFICER until such time as
Plaintiff has identified these Defendants by name in a properly filed amended complaint.
Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide the Court with the name and
service address 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 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.

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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 a United States
Magistrate Judge 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 a United States Magistrate Judge 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).

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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: December 22,2014
s/J. Phil Gilbert
United States District Judge

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