Neal v. Veath et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, denying 2 MOTION for Preliminary Injunction filed by Christopher Neal. Signed by Judge J. Phil Gilbert on 11/24/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER NEAL, # K-84358,
Plaintiff,
vs.
TIMOTHY R. VEATH,
JASON N. HART,
and REBECCA COWEN,
Defendants.

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Case No. 14-cv-01185-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff

Christopher

Neal,

an

inmate

who

is

currently

incarcerated

at

Menard Correctional Center (“Menard”), brings this action pursuant to 42 U.S.C. § 1983
(Doc. 1). Plaintiff claims that Menard’s adjustment committee added a “dangerous disturbance”
disciplinary charge to his record without his knowledge, following his admission of guilt to
fighting. Plaintiff spent five additional months in segregation as punishment for the undisclosed
charge, which was expunged after he served the time.

In connection with these events,

Plaintiff now sues three members of the adjustment committee, including Lieutenant Timothy
Veath (chairman), Jason Hart (member), and Rebecca Cowen (investigator). Plaintiff seeks
monetary damages (Doc. 1, p. 17). He also seeks a preliminary injunction in the form of a prison
transfer, in order to avoid retaliation by Menard officials for filing this action (Doc. 2).
Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under Section 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
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dismiss any portion of the complaint that is legally 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, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail to provide sufficient notice of a
plaintiff’s claim. 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).
After considering the allegations in light of this standard, the Court finds that the
complaint survives threshold review.
The Complaint
Plaintiff has allegedly been housed at Menard twice since 2005. He was first housed
there from March 2005 until June 2009 (Doc. 1, p. 6). While working in the healthcare unit

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(“HCU”), he was placed under investigation and sent to segregation on May 23, 2009.
During the investigation, Plaintiff was asked whether he had problems with any employees in the
HCU. He was also asked whether he had ever been in a closed office with a female staff
member. At the conclusion of the investigation, Plaintiff was released from segregation and
allowed to return to work in the HCU.
When Plaintiff reported to work on June 19, 2009, Defendant Veath asked him what he
was doing there. Plaintiff explained that he was returning to work. Defendant Veath allegedly
responded by stating, “I[nternal affairs] don’t run nothing. I run the healthcare and I sent you to
seg where you should have stayed” (Doc. 1, p. 6). Defendant Veath then ordered an officer to
escort Plaintiff to a shower, while he made several phone calls. On June 24, 2009, Plaintiff was
transferred from Menard.
Plaintiff returned to Menard on January 2, 2013 (Doc. 1, p. 6). More than ten months
later, Plaintiff was placed in segregation (Doc. 1, p. 7). He received a disciplinary ticket for 301Fighting. At his disciplinary hearing, Defendant Veath said, “Mr. Neal[,] I see you are back with
us[.] [L]ong time no see[.] [W]hat are you here for?” (Doc. 1, p. 7). Defendant Cowen
explained that Plaintiff was before the adjustment committee for a fighting charge. She handed
Defendant Veath the ticket.

After he read Plaintiff the charge for 301-Fighting,

Plaintiff indicated that he was guilty. Defendant Veath then instructed him to return to his cell.
At the time, Defendant Veath did not indicate what Plaintiff’s punishment would be.
However, Plaintiff allegedly made the decision to plead guilty after reviewing
Menard’s Inmate Manual, which indicated that the rule violation carried with it a punishment of
only thirty days in segregation. Plaintiff expected to be released from segregation around

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November 15, 2013 (Doc. 1, p. 7).

Due to delays in receiving the hearing summary,

Plaintiff was unaware of the exact terms of his punishment.
On October 30, 2013, Plaintiff asked an officer, C/O Davis, when he would be released
from segregation (Doc. 1, p. 8).

After looking into the issue, C/O Davis indicated that

Plaintiff would not be released until April 17, 2014. Rather than one month in segregation,
Plaintiff received six months of segregation, C-grade, and commissary restriction.
Plaintiff realized why when he saw a copy of the disciplinary ticket. It contained an
additional handwritten charge for 105-Dangerous Disturbance (Doc. 1, p. 9). This additional
charge was not included on the ticket that he received, and the charge was not mentioned at his
disciplinary hearing. He claims that a member of the adjustment committee added the charge
without his knowledge.
The Administrative Review Board (“A.R.B.”) ultimately agreed that Plaintiff should not
have been punished for the 105-Dangerous Disturbance charge (Doc. 1, p. 9). The A.R.B.
recommended expunging the dangerous disturbance charge from Plaintiff’s disciplinary record
and reducing his punishment to one month of segregation, C-grade, and commissary restriction
(Doc. 1, p. 20). Unfortunately for Plaintiff, this recommendation was made on July 7, 2014,
nearly three months after he served six months in segregation.
While in segregation, Plaintiff was confined to his cell for twenty-four hours per day. He
was denied contact visits, access to religious services, and all other privileges that an inmate in
the general population enjoys. He lost the opportunity to work and earn state pay of $10.00 per
month for five months (Doc. 1, p. 9). In January 2014, Plaintiff was also bitten by an insect, and
the wound “still hasn’t cleared up” after using an antibiotic ointment to treat it (Doc. 1, p. 11).

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After his release from segregation, Plaintiff was placed in a cell house that is set aside for
the most highly aggressive inmates (Doc. 1, p. 10). His cell was filthy. The toilet did not work,
and human feces lined the wall.

The light in the cell remained on at all times.

When Plaintiff complained, he was moved to a cell that was allegedly worse, although the
complaint provides no description of the conditions. Plaintiff’s grievances were ignored.
He now sues Defendants Veath, Hart, and Cowen for retaliation for filing grievances in
violation of the First Amendment, for cruel and unusual punishment in violation of the
Eighth Amendment, and for the denial of due process in violation of the Fourteenth Amendment
(Doc. 1, pp. 10-12).
Warden Harrington

Although not named in the case caption, Plaintiff also names
and

Sergeant

Shultz

in

connection

with

the

Eighth

and

Fourteenth Amendment claims (Doc. 1, pp. 13-14). Plaintiff seeks monetary damages, and an
immediate prison transfer (Doc. 2).
Discussion
The Court finds it convenient to divide the complaint into three counts. 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.
Count 1:

Defendants Veath, Hart, Cowen, Sergeant Shultz, and
Warden Harrington violated Plaintiff’s right to due process of
law in connection with the 105-Dangerous Disturbance charge
and in violation of the Fourteenth Amendment;

Count 2:

Defendants Veath, Hart, Cowen, Sergeant Shultz, and
Warden Harrington subjected Plaintiff to unconstitutional
conditions
of
confinement
in
violation
of
the
Eighth Amendment; and

Count 3:

Defendants Veath, Hart, and Cowen retaliated against
Plaintiff for filing grievances in violation of the
First Amendment.

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Count 1 – Fourteenth Amendment Due Process Claim
After carefully considering the allegations, the Court finds that the complaint states a
colorable Fourteenth Amendment procedural due process claim (Count 1) against
Defendants Veath, Hart, and Cowen in connection with their handling of his 2013 disciplinary
charges.

However, Plaintiff shall not be allowed to proceed with the claim against

Sergeant Shultz or Warden Harrington.
An “inmate’s liberty interest in avoiding segregation is limited.”

Hardaway v.

Meyerhoff, et al., 734 F.3d 740 (7th Cir. 2013) (quoting Marion v. Columbia Corr. Inst.,
559 F.3d 693, 697 (7th Cir. 2009)). Under certain circumstances, however, an inmate punished
with segregation can pursue a claim for deprivation of a liberty interest without due process of
law. See Marion, 559 F.3d at 697-98. Those circumstances are arguably present in this case.
The complaint alleges that Plaintiff was denied due process in the conduct of his
disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974) (to satisfy due
process concerns, inmate must be given advance written notice of the charge, the right to appear
before the hearing panel, the right to call witnesses if prison safety allows, and a written
statement summarizing the reasons for the discipline imposed); Black v. Lane, 22 F.3d 1395
(7th Cir. 1994) (disciplinary decision must be supported by “some evidence”). According to the
allegations, Defendants Veath, Hart, and Cowen forged a disciplinary charge against Plaintiff
and found him guilty without first notifying him of the charge or addressing it at a hearing.
The complaint suggests that this violated the requirements for due process set forth in Wolff.
In addition, Plaintiff was punished with six months of segregation, C-grade, and
commissary restriction. He claims that he should not have been required to serve five of these
months. Whether a protected liberty interest is implicated by Plaintiff’s confinement depends on

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whether that confinement “imposed an ‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’” Hardaway, 734 F.3d at 743 (citing Sandin v.
Conner, 515 U.S. 472, 484 (1995)). Courts must consider two factors in determining whether
disciplinary segregation imposes atypical and significant hardships: “the combined import of the
duration of the segregative confinement and the conditions endured.” Id. at 743 (citing Marion,
559 F.3d at 697-98) (emphasis in original)).
In this case, Plaintiff was placed in segregation for six months—that is, five months
longer than he allegedly should have been.

He also claims that he was subjected to

unconstitutional conditions of confinement during this time period. Under the circumstances
presented as a whole in the complaint, the Court finds that further factual inquiry into the
conditions of Plaintiff’s confinement is warranted. Accordingly, Plaintiff shall be allowed to
proceed with Count 1 at this time.
However, he shall only be allowed to proceed with this claim against Defendants Veath,
Hart, and Cowen. They were the only defendants directly involved in the disciplinary charge
and subsequent hearing. No Fourteenth Amendment due process claim has been stated against
Sergeant Shultz or Warden Harrington.
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). As a result, the doctrine of respondeat superior does not
apply to actions filed under Section 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692
(7th Cir. 2008). No allegations suggest that either of these defendants played a role in bringing
the dangerous disturbance charge, depriving Plaintiff of a hearing on it, or imposing the

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punishment for it. By all indications, neither of these individuals knew about the incident until
after it occurred.
Further, liability for the alleged due process violation does not attach to
Warden Harrington, based solely on his subsequent denial of a grievance.

In addition,

Sergeant Shultz’s somewhat vague agreement to “look into [the] matter” does not give rise to
liability (Doc. 1, p. 8). Prison grievance procedures are not constitutionally mandated and thus
do not implicate the Due Process Clause per se. As such, 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). See also Grieveson v. Anderson,
538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007);
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
Based on the foregoing discussion, Count 1 shall proceed against Defendants Veath,
Hart, and Cowen, but not Sergeant Shultz or Warden Harrington.
Count 2 – Eighth Amendment Conditions of Confinement Claim
The complaint fails to articulate a viable claim against any Defendants under the
Eighth Amendment

for

unconstitutional

conditions

of

confinement

(Count

2).

The Eighth Amendment prohibits cruel and unusual punishment and is applicable to the states
through the Fourteenth Amendment. It has been a means of improving prison conditions that
were constitutionally unacceptable. See, e.g., Robinson v. California, 370 U.S. 660, 666 (1962);
Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994). Jail officials violate the
Eighth Amendment when they show deliberate indifference to adverse conditions that deny
“the minimal civilized measure of life’s necessities,” including “adequate sanitation and personal
hygiene items.” Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (citing Farmer v. Brennan,

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511 U.S. 825, 834 (1994) (citation omitted); Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650,
664 (7th Cir. 2012); Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006); Vinning-El v. Long, 482
F.3d 923, 924 (7th Cir. 2007)). “[C]onditions of confinement, even if not individually serious
enough to work constitutional violations, may violate the Constitution in combination when they
have a ‘mutually enforcing effect that produces the deprivation of a single, identifiable human
need.’” Id. (citing Wilson v. Seiter, 501 U.S. 294, 304 (1991); Gillis, 468 F.3d at 493; Murphy v.
Walker, 51 F.3d 714, 721 (7th Cir. 1995)). In this case, Plaintiff has identified numerous
conditions, such as an unclean cell, insect problems, lighting issues, and plumbing problems that
may support an Eighth Amendment claim. See Thomas v. Illinois, 697 F.3d 612, 614-15
(7th Cir. 2012) (depending on the severity, duration, nature of risk, and susceptibility of the
inmate, prison conditions may violate the Eighth Amendment if they caused either physical,
psychological, or probabilistic harm).
However, he has failed to demonstrate that any Defendant exhibited deliberate
indifference toward the conditions he faced. To establish deliberate indifference, a prisoner must
demonstrate that a prison official “kn[ew] of and disregard[ed] an excessive risk to inmate health
or safety.” Farmer, 511 U.S. at 837. The complaint offers only conclusory statements about
Defendants’ knowledge of his conditions—somehow suggesting that Defendants must have
known that he would face bad conditions by forging the disciplinary charge and triggering a
chain of events that led to his confinement in deplorable conditions. This is not enough to
establish deliberate indifference on the part of any particular Defendant.

And while the

complaint does allege that Plaintiff “complained to officers” about his cell and was moved a
“few days later,” this vague reference to “officers” is insufficient to establish knowledge or
deliberate indifference on the part of any specific Defendant (Doc. 1, p. 10).

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Accordingly, Count 2 shall be dismissed without prejudice.
Count 3 – Retaliation Claim
Finally, the Court will allow Plaintiff to proceed with a retaliation claim (Count 3)
against Defendants Veath, Hart, and Cowen at this early stage. In the prison context, where an
inmate is alleging retaliation, the inmate must identify the reasons that retaliation has been taken,
as well as “the act or acts claimed to have constituted retaliation,” so as to put those charged with
the retaliation on notice of the claim(s). Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
The inmate need not plead facts to establish the claim beyond doubt, but need only provide the
bare essentials of the claim, and in a claim for retaliation the reason for the retaliation and the
acts taken in an effort to retaliate suffice. Id.
The allegations describe a history of poor relations between Defendant Veath and
Plaintiff. In the process of doing so, the complaint suggests that Defendant Veath may have
retaliated against Plaintiff for filing grievances against him over the years by denying him a fair
hearing on the dangerous disturbance charge, thereby triggering the chain of events described in
the complaint, i.e. Plaintiff’s movement to segregation and increasingly worse living conditions.
The complaint suggests that Defendants Cowen and Hart played a role in this incident, although
it is not altogether clear at this point who did what. For now, the Court will allow Plaintiff to
proceed with Count 3 against Defendants Veath, Hart, and Cowen, although the Court expresses
no opinion regarding the ultimate merits of this claim. Plaintiff does not name anyone else in
connection with this claim.

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Pending Motions
1.

Motion for Recruitment of Counsel (Doc. 4)
Plaintiff has filed a motion for recruitment of counsel, which shall be referred to a

United States Magistrate Judge for a decision.
2.

Motion for Preliminary Injunction (Doc. 2)
Plaintiff has also filed a motion for preliminary injunctive relief pursuant to Federal Rule

of Civil Procedure 65(a). In it, he seeks a prison transfer. Plaintiff “feels that he will be
retaliated against if he remains in Menard Corr. Center” because he “filed a complaint against
Menard Corr. Center[’s] Adjustment Committee” (Doc. 2, p. 2). He also “feels that he will never
have a fair hearing at Menard Corr. Center if Plaintiff had to hear any tickets” (Id.).
A preliminary injunction is issued only after the adverse party is given notice and an
opportunity to oppose the motion. FED. R. CIV. P. 65(a)(1). “A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 20 (2008) (citations omitted). See also Korte v. Sebelius, 735 F.3d 654,
665 (7th Cir. 2013); Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007); Cooper v. Salazar,
196 F.3d 809, 813 (7th Cir. 1999).
Plaintiff’s request for injunctive relief must be denied. There is virtually no likelihood
that he would succeed on the merits of this argument because Plaintiff’s request for relief is
based on conduct that has not yet occurred and, by all indications, has not been threatened or
suggested by anyone. Plaintiff speculates that the filing of this lawsuit against the adjustment
committee will result in retaliation in the form of future unfair disciplinary hearings. If that

11

happens, he can seek recourse through the prison grievance system and then, if necessary,
the Court. If a more immediate concern arises during the pendency of this lawsuit that is directly
related to the claims herein, Plaintiff can bring a second motion for injunctive relief. However,
the Court cannot grant this prisoner’s request for a prison transfer, based on fear of retaliation for
filing a lawsuit, without running the risk that every prisoner seeking a transfer will simply file a
lawsuit and make the same request. Accordingly, the request for a preliminary injunction is
hereby DENIED.
Disposition
The CLERK is DIRECTED to add SERGEANT SHULTZ as a DEFENDANT to this
action.
IT IS HEREBY ORDERED that Plaintiff’s motion for preliminary injunction (Doc. 2)
is DENIED without prejudice.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without prejudice for
failure to state a claim upon which relief can be granted.
AS

TO

COUNTS

DEFENDANTS TIMOTHY

1

and

VEATH,

3,

the

JASON

Clerk

of

HART,

Court

shall

REBECCA

prepare

for

COWEN,

and

SERGEANT SHULTZ: (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

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authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
Magistrate Judge for further pre-trial proceedings, including a decision on Plaintiff’s motion for
recruitment of counsel (Doc. 4).

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 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.

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See 28 U.S.C.

§ 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: November 24, 2014
s/ J. Phil Gilbert
U.S. District Judge

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