Green v. Goodwin et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 1/14/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT L. GREEN, # K-71866,
Plaintiff,
vs.
C/O GOODWIN,
J. BELFORD,
and C/O BUMGARNER,
Defendants.

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Case No. 14-cv-1364-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff, currently incarcerated at Shawnee Correctional Center (“Shawnee”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, based on events that
occurred while he was confined at Pinckneyville Correctional Center (“Pinckneyville”).
On June 19, 2013, Plaintiff sued the same Defendant Belford named above, along with
several other Pinckneyville officials, because they subjected him to a series of strip searches that
he alleges violated his constitutional rights. Green v. Belford, et al., Case No. 13-cv-587-MJRSCW (that case shall be referred to herein as Green I). Green I is still pending before this Court.
Among other claims, Plaintiff asserts in the instant case that Defendants retaliated against him
and harassed him because he pursued the claims in Green I, in an effort to deter him from
prosecuting that matter.
The Complaint
Plaintiff’s complaint (Doc. 1) is 59 pages long, most of which consists of copies of

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Plaintiff’s grievances, letters, administrative responses, and affidavits from fellow inmates. 1 His
statement of claim begins on page 50, and includes the following information.
On the evening of June 26, 2013, Defendants Goodwin and Bumgarner singled Plaintiff
out because of his sexual orientation and forbade him from showering with the other inmates in
his housing unit. Plaintiff was required to shower alone, despite his claim that there are no rules,
regulations, or memos specifying that homosexual inmates are not allowed to shower with their
fellow prisoners. He complains that the only single showers in the facility are in segregation
(Doc. 1, p. 50).
On July 23, 2013, Plaintiff returned from his evening college class along with a group of
his classmates and used the showers with those other inmates. After he finished, Defendant
Goodwin confronted him and accused him of violating her direct order to shower alone. She
threatened that if he did not shower alone in the future, she would issue him a disciplinary ticket
and get him kicked out of class and sent to segregation. Plaintiff claims this was the second time
he was harassed and threatened in retaliation for the lawsuit he had filed against Defendant
Belford and others (Green I).
The following evening (July 24, 2013), Defendant Goodwin allowed the group of
students who lived on the top deck of their housing area to shower as a group. When she came
to the bottom deck, where Plaintiff was housed, she let the inmates out cell by cell, in order to
discourage Plaintiff and cut short his shower time.
Plaintiff claims that the above incidents involving Defendants Goodwin and Bumgarner
were motivated in part by retaliation for Plaintiff’s lawsuit in Green I. He states that Defendant
Belford started working in Plaintiff’s housing unit on or about June 20, 2013, and must have
1

Plaintiff also includes several documents previously filed in Green I, which are not necessary to the
adjudication of the claims in this case (Doc. 1, pp. 21-25). Plaintiff is advised to refrain from filing
unnecessary exhibits such as this in the future.

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informed the other Defendants about the pending suit (Doc. 1, pp. 50-51).
The harassment continued on September 11, 2013, when Defendant Goodwin searched
Plaintiff’s cell and property and threatened to write disciplinary tickets (Doc. 1, p. 51).
Following that incident, Defendant Goodwin on a daily basis attempted to get Plaintiff to “react
to her tactics” so that she could write him a ticket and send him to segregation. He never
responded, and apparently he was not subjected to disciplinary action.
On September 13, 2013, when Plaintiff was leaving the vocational building, Defendant
Belford called out to him to ask if he got good time for attending school. Plaintiff answered that
he did not, whereupon Defendant Belford said, “Good, because you wasn’t gonna get it anyway
for filing that bogus ass law suit on me [sic]” (Doc. 1, p. 51). Plaintiff claims this was a threat to
his liberty interest as well as further retaliation for bringing Green I.
Several months later, on April 3, 2014, Defendant Belford was again assigned to
Plaintiff’s unit during a morning count. He came to Plaintiff’s cell and loudly announced, “the
only reason they single cell inmates is either he’s a predator or vulnerable [sic].” Id. Later on,
Defendant Belford told Plaintiff he was taking note of his name and cell number, “so I’ll
remember where you live and won’t say something I’ll be sued for later.” Id. Plaintiff asserts
this conversation was a violation of his HIPAA rights, as well as further retaliation, and an
attempt to subject Plaintiff to harm from other inmates who overheard the exchange.
Based on these facts, Plaintiff asserts that his rights under the First, Eighth, and
Fourteenth Amendments were violated and that the threats made against him were equivalent to
“the torts of a ‘hate crime’” based on his sexual orientation (Doc. 1, p. 54). He seeks declaratory
and injunctive relief, as well as compensatory and punitive damages (Doc. 1, p. 56).

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Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
For the convenience of the Court, Plaintiff’s claims shall be designated as follows. 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.
Count 1: Defendants Goodwin (and Defendant Bumgarner on June 26, 2013,
only) singled out Plaintiff for unequal treatment because of his sexual orientation,
by preventing him from showering with other inmates, shortening his shower
time, and threatening him with disciplinary action in June and July 2013, violating
his Fourteenth Amendment right to equal protection;
Count 2: Defendant Goodwin and Defendant Bumgarner retaliated against
Plaintiff for pursuing legal action in Green I, by imposing special showering rules
on him; Defendant Goodwin’s retaliation included threatening Plaintiff with
disciplinary action, searching his cell, and attempting to goad him into a conduct
violation, between June and September 2013, in violation of the First
Amendment;
Count 3: Defendant Belford retaliated against Plaintiff for suing him in Green I,
by telling Plaintiff he would not be eligible for good conduct time because of that
lawsuit, in violation of the First Amendment;
Count 4: Defendant Belford retaliated against Plaintiff for suing him in Green I,
by suggesting to other inmates that Plaintiff was a predator or a vulnerable
inmate;
Count 5: Defendant Belford’s comment that Plaintiff was either a predator or a
vulnerable inmate subjected Plaintiff to a risk of harm in violation of the Eighth
Amendment;
Count 6: Defendant Belford’s comment that Plaintiff was either a predator or a
vulnerable inmate violated his privacy rights under HIPAA;
Count 7: All Defendants’ threats and actions against Plaintiff constituted “hate
crimes” against him.
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Accepting Plaintiff’s allegations as true, Plaintiff’s claims in Counts 1, 2, 4 and 5
survive review under § 1915A and shall proceed for further review. However, Counts 3, 6 and
7 shall be dismissed as discussed below. Furthermore, the claims in Counts 1 and 2 cannot
proceed in the same action as Counts 4 and 5, because these groups of claims involve different
Defendants and are not legally or factually related to one another. Counts 4 and 5 shall therefore
be severed into a separate action, but Plaintiff shall have an opportunity to voluntarily dismiss
the newly severed case if he does not wish to proceed on those claims or incur the additional
filing fee.
Count 1 – Equal Protection Claim
Plaintiff’s allegations that Defendant Goodwin interfered with his access to the showers
on three occasions in June and July 2013, treating him differently from other inmates on account
of his sexual orientation, state a cognizable claim for an equal protection violation at this early
stage of the litigation. Plaintiff may have a viable claim either as a member of an identifiable
class, see Meriwether v. Faulkner, 821 F.2d 408, 415 n.7 (7th Cir.), cert. denied, 484 U.S. 935
(1987); Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982), and/or as a class-of-one. See
Swanson v. City of Chetek, 719 F.3d 780, 783-84 (7th Cir. 2013).
Although Defendant Bumgarner was involved only in the June 26, 2013, incident,
Plaintiff’s claims against both Defendants are combined in Count 1 for the convenience of the
Court. While it is unclear at this stage whether Plaintiff suffered any more than a de minimis
injury, Count 1 shall proceed for further review against Defendants Goodwin and Bumgarner.
Count 2 – Retaliation Claims Against Defendant Goodwin and Bumgarner
Prison officials may not retaliate against inmates for engaging in protected First
Amendment activity such as pursuing grievances or lawsuits over prison conditions or alleged
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mistreatment.

See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); Walker v.

Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000).
Here, Plaintiff has identified the lawsuit (Green I) that allegedly triggered the retaliation, and he
has also identified several acts of retaliation by Defendant Goodwin; thus he has sufficiently
stated a claim against her that merits further review. See Bridges v. Gilbert, 557 F.3d 541, 551
(7th Cir. 2009); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
As to the single incident involving Defendant Bumgarner (the June 26, 2013, order
requiring Plaintiff to shower alone), Plaintiff suggests that this event was the first act of
retaliation based on his lawsuit against Defendant Belford, although the complaint is not entirely
clear on this point (Doc. 1, p. 50). Giving liberal construction to the complaint, Defendant
Bumgarner is therefore included in the retaliation claim under Count 2 at this stage.
Count 3 – Retaliation Claim Against Defendant Belford (September 2013 incident)
This claim is based on Defendant Belford’s comment to Plaintiff on September 13, 2013,
that Plaintiff would not be eligible for good time credit for his school attendance, because of
Plaintiff’s “bogus” pending lawsuit against Defendant Belford.

While this exchange was

obviously triggered by the fact that Plaintiff had sued Defendant Belford in Green I, Plaintiff’s
account fails to suggest that Defendant Belford took any adverse action against Plaintiff. See
Bridges, 557 F.3d at 552 (to state a retaliation claim, plaintiff must have experienced an adverse
action that would likely deter similar protected activity in the future) (emphasis added).
According to his own description, Plaintiff did not stand to earn any sentence credit at all
by attending school. Therefore, Defendant Belford’s statement that Plaintiff would not have
received any good time from the class because he had filed a “bogus” lawsuit was entirely

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speculative and could not have affected Plaintiff’s eligibility for earlier release. 2

Despite

Plaintiff’s characterization of Defendant Belford’s comment as a “direct threat to his liberty
interest,” there simply was no such threat. Mere verbal harassment such as this, that could not
possibly lead to adverse consequences to the plaintiff, does not amount to an “adverse action”
sufficient to support a claim for unconstitutional retaliation. Accordingly, Count 3 shall be
dismissed with prejudice.
Count 4 – Retaliation Claim Against Defendant Belford (April 2014 incident)
In comparison with Count 3, Defendant Belford’s remark to Plaintiff on April 3, 2014,
which implied that Plaintiff was either a predator or a “vulnerable” inmate, may rise to the level
of an “adverse action” in retaliation for Plaintiff’s protected activity. Defendant Belford made
his statement loudly and apparently in the vicinity of other inmates who heard his comment. He
thus labeled Plaintiff in the eyes of his fellow prisoners as either a predator or as vulnerable to a
potential attack, presumably because of Plaintiff’s sexual orientation. This interaction may be
viewed as a retaliatory act, beyond mere verbal harassment, because it could lead to potential
adverse consequences to Plaintiff. As such, Plaintiff may proceed with the retaliation claim
against Defendant Belford in Count 4.
Count 5 – Eighth Amendment Claim Against Defendant Belford (April 2014 incident)
In addition to constituting a possible retaliatory action, Defendant Belford’s statement
that Plaintiff was either a predator or vulnerable could have placed Plaintiff in danger of being a
target for violence at the hands of other prisoners. Depending on the circumstances, a threat of

2

The Illinois statute does provide for the possible revocation of up to 180 days of good conduct credit if
a court specifically finds that a prisoner has filed a frivolous pleading or motion. 730 ILL. COMP. STAT.
5/3-6-3(d). However, Defendant’s reference to this possible consequence of Plaintiff’s suit does not
constitute an act of retaliation, because Defendant has no ability to impose this consequence on Plaintiff.
Furthermore, Plaintiff’s complaint in Green I survived the initial frivolity review by this Court.

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harm may support a claim for cruel and unusual punishment where it involves a “credible threat
to kill, or to inflict any other physical injury.” Dobbey v. Ill. Dep’t of Corr., 574 F.3d 443, 446
(7th Cir. 2009). Allegations that a prison officer has provoked or persuaded other inmates to
cause harm to a plaintiff may support an inference that the officer attempted to inflict injury on
the plaintiff in violation of the Eighth Amendment. See, e.g., Irving v. Dormire, 519 F.3d 441,
449 (8th Cir. 2008) (officer’s attempt to have other inmates attack plaintiff may violate Eighth
Amendment, even where the plaintiff was not actually assaulted).
Further factual development will be necessary in order to determine whether this incident
rose to the level of a constitutional claim. Plaintiff may therefore proceed against Defendant
Belford on Count 5.
Count 6 – HIPAA Claim
Plaintiff appears to believe that Defendant Belford’s comment that he was either a
predator or “vulnerable” amounted to a disclosure of private health information as defined under
HIPAA (the Health Insurance Portability and Accountability Act of 1996). Pub. L. No. 104-191,
110 Stat. 1936 (1996). It is not at all clear that Defendant Belford’s statement made any
reference to Plaintiff’s protected health information. Regardless of whether or not there was an
improper disclosure, Plaintiff’s HIPAA claim shall be dismissed with prejudice for failure to
state a claim upon which relief may be granted. Even where protected health information has
been wrongly disclosed, there is no private right of action for a HIPAA violation. See Carpenter
v. Phillips, 419 F. App’x 658, 659 (7th Cir. 2011) (collecting cases).
Count 7 - “Hate Crimes”
Finally, Plaintiff asserts that all of the threats, harassment, and retaliatory actions against
him by each Defendant amounted to “hate crimes” based on his sexual orientation (Doc. 1, p.

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54). Although he does not elaborate further, it appears that he wishes to bring a state tort law
“hate crime” claim along with his federal constitutional claims.
The Illinois Hate Crime statute provides that a person who has suffered “injury to his
person or damage to his property as a result of [a] hate crime may bring a civil action for
damages, injunction or other appropriate relief.” 720 ILL. COMP. STAT. 5/12-7.1(b-10). The
statutory definition of a hate crime includes assault, battery, and other enumerated crimes
committed “by reason of” the actual or perceived sexual orientation or other listed characteristics
of the victim. 720 ILL. COMP. STAT. 5/12-7.1(a); (d). While Plaintiff appears to fall within at
least one of the groups protected under this statute, his allegations do not show that any
Defendant committed one of the listed crimes. More to the point, none of the allegations suggest
that Plaintiff suffered an assault or battery or was the victim of any other criminal act on the part
of a Defendant that resulted in physical injury or property damage. 3 For these reasons, he fails to
state a claim upon which relief may be granted for a “hate crime” claim under the Illinois statute.
Count 7 shall therefore be dismissed without prejudice.
Injunctive Relief
Plaintiff’s request for injunctive relief, contained in his complaint (Doc. 1, p. 56), has
become moot. “[W]hen a prisoner who seeks injunctive relief for a condition specific to a
particular prison is transferred out of that prison, the need for relief, and hence the prisoner’s
claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004). See also Higgason v.
Farley, 83 F.3d 807, 811 (7th Cir. 1995).
In his complaint, Plaintiff indicates that he has been incarcerated at Shawnee at least

3

Plaintiff describes only verbal harassment, which is a criminal offense under the statute only if the
harassment occurred by telephone or electronic communications. Harassment cannot form the basis for a
civil action pursuant to the statute in the absence of a physical injury or damage to Plaintiff’s property,
neither of which is alleged in this case. See 720 ILL. COMP. STAT. 5/12-7.1(a); (c).

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since June 13, 2014 (Doc. 1, p. 4). Therefore, he would have had no further contact with the
Defendants since that time. Only if Plaintiff can show a realistic possibility that he would again
be incarcerated at the Pinckneyville Correctional Center, where Defendants are employed, would
it be proper for the Court to consider injunctive relief. See Maddox v. Love, 655 F.3d 709, 716
(7th Cir. 2011) (citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)). Accordingly,
Plaintiff’s request for injunctive relief shall not be considered further at this time.
Severance of Counts 4 and 5
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that
unrelated claims against different defendants belong in separate lawsuits, “not only to prevent the
sort of morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners
pay the required filing fees” under the Prison Litigation Reform Act. George, 507 F.3d at 607,
(citing 28 U.S.C. § 1915(b), (g)). Plaintiff’s complaint contains two sets of unrelated claims
against different Defendants: Counts 1 and 2 against Defendants Goodwin and Bumgarner, and
Counts 4 and 5 against Defendant Belford. The fact that the retaliation claims in Counts 2 and 4
are alleged to have been triggered by the same event (Plaintiff’s lawsuit in Green I) does not
sufficiently link these claims in light of George. The purported acts of retaliation were distinct
from one another, took place on different dates, and were committed by different Defendants;
thus severance is appropriate.
Consistent with the George decision and Federal Rule of Civil Procedure 21, the Court
shall sever Counts 4 and 5 of Plaintiff’s complaint and open a new case with a newly-assigned
case number for those claims against Defendant Belford. Plaintiff shall have an opportunity to
voluntarily dismiss the newly severed case, however, if he does not wish to proceed on those
claims or incur the additional filing fee.

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Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration, as to Counts 1 and 2, which shall remain
in this action.
The motion for service of process at government expense (Doc. 4) shall be GRANTED
in part AND DENIED in part. Service shall be ordered below on the two Defendants who
remain in this action. No service shall be ordered in the severed case until after Plaintiff notifies
the Court regarding his intentions to pursue or withdraw those claims.
Disposition
COUNTS 3 and 6 are DISMISSED with prejudice for failure to state a claim upon
which relief may be granted. COUNT 7 is DISMISSED without prejudice for failure to state a
claim upon which relief may be granted.
IT IS HEREBY ORDERED that Plaintiff’s retaliation and Eighth Amendment claims
against Defendant Belford (COUNTS 4 and 5), which are unrelated to the claims in Counts 1
and 2, are SEVERED into a new case. That new case shall be: Claims against DEFENDANT
BELFORD for retaliation and cruel and unusual punishment.
In the new case, the Clerk is DIRECTED to file the following documents:
(1)
(2)
(3)

This Memorandum and Order
The original Complaint (Doc. 1)
Plaintiff’s motion to proceed in forma pauperis (Doc. 2)

Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with the newlyopened case, he must notify the Court in writing within 35 days (on or before February 18,
2015). Unless Plaintiff notifies the Court that he does not wish to pursue the newly opened
action, he will be responsible for an additional $350.00 filing fee in the new case. Service

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shall not be ordered on Defendant Belford until after the deadline for Plaintiff’s response.
IT IS FURTHER ORDERED that the only claims remaining in this action are
COUNT 1 and COUNT 2 against Defendants GOODWIN and BUMGARNER, for equal
protection violations and retaliation.

This case shall now be captioned as: ROBERT L.

GREEN, Plaintiff, vs. C/O GOODWIN and C/O BUMGARNER, Defendants.
IT IS FURTHER ORDERED that Defendant J. BELFORD is TERMINATED from
this action with prejudice.
As to COUNTS 1 and 2, which remain in the instant case, the Clerk of Court shall
prepare for Defendants GOODWIN and BUMGARNER: (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.
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

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entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson 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).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk

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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: January 14, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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