Brown v. Duncan et al

Filing 20

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge Staci M. Yandle on 1/23/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAURICE BROWN, #K-7247, and
STEVEN RUTLEDGE, #N-87582,

)
)
)
Plaintiff,
)
)
vs.
)
)
STEVEN DUNCAN,
)
SALVADOR GODINEZ, MRS. WEAVER, )
MRS. HOPPER, RODNEY HUGHES,
)
GALEN DELLINGER, and
)
COUNSELOR RAY
)
)
Defendants.
)

Case No. 14-cv-1266-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter comes before the Court for review of Plaintiffs’ First Amended Complaint
(Doc. 13) and Motion for Preliminary Injunction and/or Motion for Temporary Restraining
Order (Doc. 14) filed on January 8, 2015. Plaintiffs Maurice Brown and Steven Rutledge,
inmates who are currently incarcerated at Lawrence Correctional Center (“Lawrence”), bring this
civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs assert an Eighth Amendment claim
against Defendants Duncan, Weaver, Hopper, Hughes 1, Dellinger, Ray, and Godinez for their
deliberate indifference to Plaintiffs’ safety. Plaintiffs seek monetary damages and immediate
injunctive relief.
Procedural History
Plaintiff Maurice Brown originally attempted to initiate this case by filing a motion
1

Plaintiffs designate “Rodney Hughes” as a Defendant in the caption and under the section provided to name
defendants on the Court-provided form. (See Doc. 13, pp. 1-2). However, throughout the body of the complaint, the
only “Rodney” Plaintiffs refer to is “Rodney Rhodes.” Id. at 8.
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requesting immediate injunctive relief. (Doc. 1). In an Order dated November 18, 2014 (Doc. 3),
the Court advised Plaintiff Brown 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 delayed ruling on the motion for immediate
injunctive relief (Doc. 1) and ordered Brown to file a complaint by December 23, 2014. Plaintiff
Brown filed a complaint (Doc. 5) within the allotted time frame, but it was stricken for failure to
comply with Rule 8(a) of the Federal Rules of Civil Procedure. (See Doc. 11). However, the
Court granted Plaintiff Brown leave to refile an amended complaint on or before January 14,
2015.
On January 8, 2015, Plaintiff Brown filed his First Amended Complaint 2 (Doc. 13) and a
motion for preliminary injunction and/or temporary restraining order (Doc. 14).

The First

Amended Complaint seeks to join Steven Rutledge as a co-plaintiff and names several new
Defendants. Under the circumstances, the Court deems it necessary to address some preliminary
matters before reviewing this case pursuant to 28 U.S.C. § 1915A.
Group Litigation by Multiple Prisoners
Plaintiffs may bring their claims jointly in a single lawsuit if they so desire. However, the
Court must warn them as to the consequences of proceeding in this manner, including their filing
fee obligations, and give them the opportunity to withdraw from the case or sever their claims
into individual actions.
In Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), the Seventh Circuit addressed the
difficulties in administering group prisoner complaints. District courts are required to accept
joint complaints filed by multiple prisoners if the criteria of permissive joinder under Federal
2

As an aside, the Court notes that the Amended Complaint (Doc. 13) refers to several exhibits (i.e., exhibit C and
exhibits 1-6) that are not attached to the Complaint.
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Rule of Civil Procedure 20 are satisfied. Rule 20 permits plaintiffs to join together in one lawsuit
if they assert claims “arising out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to these persons will arise in the action.”
Nonetheless, a district court may turn to other civil rules to manage a multi-plaintiff case. If
appropriate, claims may be severed pursuant to Rule 20(b), pretrial orders may be issued
providing for a logical sequence of decision pursuant to Rule 16, parties improperly joined may
be dropped pursuant to Rule 21, and separate trials may be ordered pursuant to Rule 42(b).
Boriboune, 391 F.3d at 854.
In reconciling the Prisoner Litigation Reform Act with Rule 20, the Seventh Circuit
determined that joint litigation does not relieve any prisoner of the duties imposed upon him
under the Act, including the duty to pay the full amount of the filing fees, either in installments
or in full if the circumstances require it. Id. In other words, each prisoner in a joint action is
required to pay a full civil filing fee, just as if he had filed the suit individually.
The Circuit further noted at least two other reasons a prisoner may wish to avoid group
litigation. First, group litigation creates countervailing costs. Each submission to the Court must
be served on every other plaintiff and the opposing parties pursuant to Federal Rule of Civil
Procedure 5. This means that if there are three plaintiffs, the plaintiffs’ postage and copying costs
of filing motions, briefs or other papers in the case will be three times greater than if there was a
single plaintiff.
Second, a prisoner litigating on his own behalf takes the risk that “one or more of his
claims may be deemed sanctionable under Federal Rule of Civil Procedure 11.” Boriboune, 391
F.3d at 854-55. According to the Circuit, a prisoner litigating jointly assumes those risks for all
of the claims in the group complaint, whether or not they concern him personally. Furthermore,

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if the Court finds that the complaint contains unrelated claims against unrelated defendants, those
unrelated claims may be severed into one or more new cases. If that severance of claims occurs,
each Plaintiff will be liable for another full filing fee for each new case. Plaintiffs may wish to
take into account this ruling in determining whether to assume the risks of group litigation in the
federal courts of the Seventh Circuit going forward.
In the present case, both Plaintiffs have filed motions to proceed in forma pauperis. (See
Docs. 4 and 16). Moreover, both Plaintiffs have signed the complaint, as well as all subsequent
motions. The Court is convinced that each Plaintiff has sufficiently demonstrated his interest in
pursuing the present action. As such, each Plaintiff may not escape his obligation to pay the
filing fee for this action, which was incurred when the action was filed. See 28 U.S.C. §
1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467-68 (7th Cir. 1998).

Nonetheless, each

Plaintiff may still elect to voluntarily dismiss or sever his individual claims.
In addition, if Plaintiffs Brown and Rutledge desire to continue this litigation as a group,
any proposed amended complaint, motion, or other document filed on behalf of multiple
Plaintiffs must be signed by each of the Plaintiffs. As long as the Plaintiffs appear without
counsel in this action, each Plaintiff must sign documents for himself. See Lewis v. Lenc-Smith
Mfg. Co., 784 F.2d 829, 831 (7th Cir. 1986); FED. R. CIV. P. 11. 3 A non-attorney cannot file or
sign papers for another litigant. Plaintiffs are ADVISED that future group motions or pleadings
that do not comply with this requirement shall be stricken pursuant to Rule 11(a).
Plaintiffs are further advised that even if they elect to proceed together, the Court may
determine at some later stage that the case should be severed in accordance with the Federal
Rules of Civil Procedure. At this juncture, it is difficult to know whether severance will become
3

Rule 11 states, in pertinent part: “Every pleading, written motion, and other paper must be signed . . . by a party
personally if the party is unrepresented.” FED. R. CIV. P. 11(a).
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necessary.
Finally, the Amended Complaint requests leave to certify this cause as a class action in
the future. (Doc. 13, p. 14). Plaintiffs are advised that the Federal Rules of Civil Procedure
permit class actions to be maintained only if the class representative “will fairly and adequately
protect the interests of the class,” Fed. R. Civ. P. 23(a)(4), and “[e]very court that has considered
the issue has held that a prisoner proceeding pro se is inadequate to represent the interests of his
fellow inmates in a class action.” Lee v. Gardinez, No. 11-cv-570-GPM, 2012 WL 143612, at *1
n.1 (S.D. Ill., Jan. 18, 2012) (quoting Craig v. Cohn, 80 F. Supp. 2d 944, 946 (N.D. Ind. 2000)
(internal citations and quotation marks omitted)). Plaintiffs have filed a motion for recruitment
of counsel (Doc. 15), which shall be addressed in a separate order.

Until that motion is

addressed, a ruling on class certification is premature.
Merits Review Under 28 U.S.C. § 1915A
The amended complaint comes now before the Court for a preliminary review pursuant to
28 U.S.C. § 1915A.

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 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. At the same time, the

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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 carefully considering the allegations
in light of this standard, the Court finds that the complaint survives preliminary review under
§ 1915A.
The Complaint
Plaintiffs Brown and Rutledge each allege that over the last several months they have
repeatedly requested and been denied protective custody by officials at Lawrence Correctional
Center. (Doc. 13, pp. 7-11). The facts and circumstances surrounding each Plaintiff’s specific
situation differ, but the general allegations against the Defendants are largely the same. Each
Plaintiff claims that he feared for his safety in general population housing at Lawrence, notified
Defendants of this fear, and requested protective custody. Id. Plaintiffs assert that officials
ignored their requests to be placed in protective custody and instead attempted to house both
Plaintiffs in the general population, where their alleged enemies were housed. Plaintiffs both
refused to be placed in the general population housing unit and were issued disciplinary tickets
as a result. Subsequently, they each were sent to segregation for “refusing housing.” Id.
Plaintiffs filed emergency grievances with Defendant Duncan (warden at Lawrence).
Plaintiffs also maintain that Defendant Godinez has been notified that Lawrence does not offer
protective custody for its inmates, in violation of state administrative law and the Eighth
Amendment to the United States Constitution, and yet he has failed to intervene. Id. at 13.
Plaintiffs assert that by failing to intervene, Godinez has condoned the unconstitutional policy.
Plaintiff Brown also sent request slips to Defendants Weaver and Hopper
(assignment/placement officers) asking to be moved to protective custody. Id. at 7. Plaintiff
Brown alleges that his requests were “ignored.” Id. at 7. Plaintiff Brown next asked Rodney

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Rhodes 4 (housing wing correctional officer) to place him in protective custody. Allegedly
Rhodes told Brown that he needed to learn how to fight, issued Brown a disciplinary ticket for
“insolence,” and sent Brown to segregation. Id. at 8. Defendant Ray also ignored Brown’s
requests to be placed in protective custody. Id. Likewise, Brown informed Defendant Dellinger
of the situation and again requested protective custody.

Defendant Dellinger also denied

Plaintiff Brown’s request and issued Plaintiff Brown a disciplinary report for “refusing housing,”
which resulted in Brown being sent to segregation again. Id.
Similarly, Plaintiff Rutledge has been requesting protective custody for several months.
Id. at 10. Rutledge asserts that Defendant Duncan refused to notify Rutledge in writing that his
request for protective custody had been denied. Id. Further, Plaintiff Rutledge claims that
Defendant Ray interfered with his ability to grieve and appeal decisions related to protective
custody. Id. at 11. Rutledge also maintains that Defendants Weaver and Hopper refused to
review Rutledge’s request for protective custody and instead sent him to segregation for refusing
to be placed in general population housing. Id.
Analysis
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). In
order to state a failure to protect claim, a plaintiff must show that he is incarcerated under
conditions posing a substantial risk of serious harm, and that the defendants acted with
“deliberate indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must
prove that prison officials were aware of a specific, impending, and substantial threat to his
4

Plaintiffs refer to “Rodney Rhodes” in the body of the complaint, but do not name his as a defendant in the caption
or under the section designated for defendants. See footnote 1 herein.
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safety, often by showing that he complained to prison officials about a specific threat to his
safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996).
Plaintiffs seek monetary damages and injunctive relief. Treating Plaintiffs’ allegations as
true, as it must at this stage, the Court finds that the amended complaint sets forth two claims
under the Eighth Amendment against Defendants for their deliberate indifference to Plaintiffs’
safety. Plaintiff Brown may proceed on his failure to protect claim (Count 1) for monetary
damages against Defendants Duncan, Weaver, Hopper, Dellinger, and Godinez in their
individual capacities. Likewise, Plaintiff Rutledge may proceed on his failure to protect claim
(Count 2) for monetary damages against Defendants Duncan, Weaver, Hopper, Ray, and
Godinez in their individual capacities.
Although Plaintiffs name Defendant Rodney Hughes in the caption of the complaint, they
do not refer to him in the statement of the claim. Instead, Plaintiffs refer to Rodney Rhodes in
the statement of the claim (but do not name him as a defendant). Most likely “Rodney Hughes”
and “Rodney Rhodes” refer to the same individual, but the Court cannot be put in the position of
guessing the correct name of a defendant. For this reason, Defendant Hughes will be dismissed
from this action at this time without prejudice. Neither Rodney Hughes nor Rodney Rhodes will
be served. If Plaintiffs wish to reinstate Rodney Hughes or add Rodney Rhodes as a Defendant,
they must seek leave to amend the complaint.
Plaintiffs also seek injunctive relief. 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. Therefore, Defendant Duncan shall also remain as a Defendant

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in his official capacity as the WARDEN OF LAWRENCE for purposes of injunctive relief.
See FED. R. CIV. P. 21; FED. R. CIV. P. 17(d).
Motion for Preliminary Injunction and/or Temporary Restraining Order
Plaintiffs have also filed a motion for preliminary injunction and/or temporary restraining
order (Doc. 14) requesting, among other things, that they be placed in protective custody
immediately. In order to obtain this relief, Plaintiffs must demonstrate that: (1) their underlying
case has some likelihood of success on the merits; (2) no adequate remedy at law exists, and; (3)
Plaintiffs will suffer irreparable harm without the injunction. Woods v. Buss, 496 F.3d 620, 622
(7th Cir. 2007). If those three factors are shown, the district court must then balance the harm to
each party and to the public interest from granting or denying the injunction. Id.; Korte v.
Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.
1999).
Without expressing an opinion as to the ultimate merits of the motion, the Court’s
preliminary review dictates that Plaintiffs’ request for immediate injunctive relief deserves
prompt consideration.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), Plaintiffs’ request for
immediate injunctive relief (Doc. 14) is hereby REFERRED to United States Magistrate Judge
Frazier, who shall resolve the request for injunctive relief as soon as practicable. Any motions
filed after the date of this Order that relate to the request for injunctive relief or seek leave to
amend the complaint are also hereby REFERRED to Judge Frazier.
Other Pending Motions
Plaintiff Rutledge’s motion for leave to proceed in forma pauperis (Doc. 16) remains
PENDING and shall be addressed by the Court in a separate order.

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Plaintiffs’ motion for recruitment of counsel (Doc. 15) also remains PENDING and shall
be referred to United States Magistrate Judge Frazier for a decision.
The motion for service at government expense (Doc. 17) is unnecessary and, therefore,
shall be DENIED as MOOT.
Disposition
IT IS HEREBY ORDERED that each Plaintiff shall advise the Court in writing on or
before January 29, 2015, if he wishes to pursue his claims individually in a separate lawsuit.
IT IS HEREBY ORDERED that Plaintiff Brown’s claim for damages (Count 1) against
Defendants DUNCAN, WEAVER, HOPPER, DELLINGER, and GODINEZ in their
individual capacities and Plaintiff Rutledge’s claim for damages (Count 2) against Defendants
DUNCAN, WEAVER, HOPPER, RAY, and GODINEZ in their individual capacities shall
proceed. Plaintiffs may also proceed on their request for injunctive relief against Defendant
DUNCAN in his official capacity as WARDEN OF LAWRENCE.
IT IS FURTHER ORDERED that Defendant HUGHES is DISMISSED from this
action WITHOUT PREJUDICE.
The Clerk of Court is DIRECTED to complete, on Plaintiffs’ behalf, a summons and
form USM-285 for service of process on Defendants DUNCAN, WEAVER, HOPPER,
DELLINGER, RAY, and GODINEZ. The Clerk shall issue the completed summons, and
prepare a service packet for Defendants consisting of: the completed summons, the completed
form USM-285, a copy of the First Amended Complaint (Doc. 13), the Motion for Preliminary
Injunction and/or Motion for Temporary Restraining Order (Doc. 14), and this Memorandum and
Order. The Clerk shall deliver the service packets for each Defendant to the United States
Marshal Service for personal service on Defendants.

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Pursuant to Federal Rule of Civil Procedure 4, within 14 days of the date of this Order,
the United States Marshals Service SHALL personally serve upon each Defendant, the service
packets containing the summons, form USM-285, a copy of the First Amended Complaint (Doc.
13), the Motion for Preliminary Injunction and/or Motion for Temporary Restraining Order
(Doc. 14), and this Memorandum and Order. All costs of service shall be advanced by the
United States, and the Clerk shall provide all necessary materials and copies to the United States
Marshals Service. The Court will not require Defendants to pay the full costs of formal service,
as the Court is ordering personal service to expedite the resolution of Plaintiffs’ motion for
injunctive relief.
Plaintiffs 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.
Plaintiffs 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 each 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.
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 Frazier for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Frazier 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 Plaintiffs, and the judgment includes the payment of costs

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under § 1915, Plaintiffs will be required to pay the full amount of the costs, even if both of their
applications to proceed in forma pauperis are granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiffs are 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 applicants and their attorneys 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 plaintiffs and remit the balance to
plaintiffs. Local Rule 3.1(c)(1).
Finally, Plaintiffs are ADVISED that they are under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change of address; the Court will not
independently investigate Plaintiffs’ 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: January 23, 2015
s/ STACI M. YANDLE
United States District Judge

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