Bailey v. Stover et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 2/6/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER BAILEY, # R-71263,
Plaintiff,
vs.
JESSICA STOVER, THOMAS HOLT,
ZACHARY ROECKEMAN, and
SALVADOR GODINEZ,
Defendants.

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Case No. 15-cv-0072-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Christopher Bailey, who is confined at the Big Muddy River Correctional
Center (“Big Muddy”) after having been adjudicated a Sexually Dangerous Person, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff claims
that Defendants have violated his First, Fourth, Fifth, and Fourteenth Amendment rights by
confiscating certain publications and a personal list. Plaintiff seeks compensatory and punitive
damages, return of his personal property, a declaratory judgment, as well as preliminary and
permanent injunctive relief. (Doc. 1, p. 20). Plaintiff’s request for immediate injunctive relief
will be considered in conjunction with the Court’s preliminary review of the complaint pursuant
to 28 U.S.C. § 1915A. 1
Merits Review Pursuant to 28 U.S.C. § 1915
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
1

Civilly committed sex offenders in Illinois are subject to the PLRA (28 U.S.C. § 1915 et seq). Kalinowski v. Bond,
358 F.3d 978, 978-79 (7th Cir. 2004).
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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 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).
Legal Standard for Sexually Dangerous Person Claims
Plaintiff is confined at Big Muddy under the Illinois Sexually Dangerous Persons
Act (“SDPA”), 725 ILL. COMP. STAT. 205/0.01 et seq. Persons civilly committed under the
SDPA are deemed to be pretrial detainees, not convicted prisoners. See Allison v. Snyder, 332
F.3d 1076, 1078-79 (7th Cir. 2003).

The Due Process Clause prohibits conditions of

confinement for pretrial detainees that amount to punishment. Board v. Farnham, 394 F.3d 469,
477 (7th Cir.2005). But “[a] condition of confinement may be imposed on a pretrial detainee
without violating the Due Process Clause if it is reasonably related to a legitimate and nonpunitive governmental goal.” Antonelli v. Sheahan, 81 F.3d 1422, 1427–28 (7th Cir.1996).
The Complaint
Plaintiff has filed a 91-page complaint (including exhibits), detailing his claims.
The basic facts relevant to the Court’s threshold review are as follows: Plaintiff has been found
to be a Sexually Dangerous Person (“SDP”) under the Illinois Sexually Dangerous Persons Act,

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725 ILL. COMP. STAT. 205/0.01 et seq. As such, Plaintiff is confined to the Sexually Dangerous
Person Program at Big Muddy. (Doc. 1, p. 17).
The complaint concerns the confiscation of two types of property: 1) a 100-page
list created by Plaintiff containing the title of books, bands, music, movies, and other mediarelated items of interest to Plaintiff (“List”); and 2) several copies of the magazine, Maxim,
which Plaintiff held a subscription for. In March 2013, officers conducted a shakedown of
Plaintiff’s cell and confiscated the List and the December 2012 issue of Maxim, which had been
delivered to Plaintiff through the institutional mail system. (Doc. 1, p. 9). Plaintiff received a
shakedown slip, which referenced these two items, but Plaintiff was never given the opportunity
to pay for the items to be shipped home. Id.
In January 2013, Plaintiff received a notification of unauthorized mail related to
the January/February 2013 issue of Maxim. Id. at 9. The form is filled out by Defendant Howe
(publication review officer) and notes that the publication is disapproved because it contains
material that is detrimental to Plaintiff’s rehabilitation. Id. at 44.
Over the course of the next several months, each time a new issue of Maxim
arrived for Plaintiff, the issue was taken by the officer assigned to Plaintiff’s housing unit per
instructions given by Defendant Stover (SDP program staff). Id. at 9-17. Each time, Plaintiff
was issued a shakedown slip. In addition, he asserts that he usually was not given an option to
send the publication home. Id.
In October 2013, when the latest issue of Maxim arrived, Officer Schuler (officer
with internal affairs) called Plaintiff to his office and notified him that the magazine had not been
approved. Id. at 13. Officer Schuler gave Plaintiff a Publication Review Determination and
Course of Action form, which indicated that the magazine was being denied because the material

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was found to be “otherwise detrimental to security, good order, rehabilitation, or discipline, or it
might facilitate criminal activity or be detrimental to mental health.” Id. at 80. In addition,
Officer Schuler wrote, “It is the policy of the sex offender program @ BMRCC that no
individual committed to BMRCC as Sexually Dangerous Person (SDP) be permitted use of or
possession of obscene material. . . .” 2

Plaintiff claims that Officer Schuler made this

determination without the approval of the Chief Administrative Officer (Defendant Roeckeman),
as required by department regulations.

Id. at 13.

Plaintiff further alleges that Defendant

Roeckeman later altered paperwork to cover-up this error. Id.
Plaintiff maintains that Maxim magazine is on the approved list of publications at
Big Muddy, and that there is no reason why he should not be able to receive the magazine. In
fact, on occasion, he has received the magazines without any interference.

However, he

maintains that even those issues, which had been approved through the institutional mail system,
were later confiscated during cell shakedowns per orders given by Defendant Stover. Id. at 15.
He asserts that Defendant Stover has “arbitrarily decided that I cannot have the magazines, based
on her own personal opinions and prejudices, and without legitimate cause of authority.” Id. at
17. In addition, he claims that Defendant Holt (director of the SDP program) and Defendant
Roeckeman (warden at Big Muddy) are personally responsible because they have repeatedly
affirmed and condoned Defendant Stover’s orders to confiscate Plaintiff’s property in violation
of his First, Fourth, Fifth, and Fourteenth Amendment rights. Id. at 17-18.
Discussion
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 amended complaint, as shown
2

The note indicates other materials that are prohibited, but the Court is unable to decipher the writing.
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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.
Count 1: First Amendment Claim
“A prison's refusal to allow an inmate access to a book ‘presents a substantial
First Amendment issue. Freedom of speech is not merely freedom to speak; it is also freedom to
read.’” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012) (quoting King v. Fed. Bureau of
Prisons, 415 F.3d 634, 638 (7th Cir.2005)). However, in Turner v. Safley, the United States
Supreme Court held that “when a prison regulation impinges on inmates' constitutional rights,
the regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S. 78,
89 (1987).
In Lane v. Williams, the Seventh Circuit indicated, in dicta, that tailoring the
Turner standard to the special government interest involved in civil commitment cases may be
appropriate: “[b]ecause Turner tells courts to consider the challenged regulation in relation to the
government's legitimate interests, it would not be too difficult to adapt its standard for claims by
civil detainees. To do so, courts would only have to recognize the different legitimate interests
that governments have with regard to prisoners as compared with civil detainees.” Lane v.
Williams, 689 F.3d 879, 884 (7th Cir. 2012) (concluding it was unnecessary in that case to
“decide whether and, if so, how to make such an adjustment to the Turner standard.”).
Under Illinois Department of Corrections regulations, materials may be prohibited
if they are deemed to be “obscene” or “detrimental to security, good order, rehabilitation, or
discipline or if it might facilitate criminal activity, or be detrimental to mental health needs of an
offender as determined by a mental health professional.” Ill. Admin. Code tit. 20, § 525.230. In
the present case, Plaintiff does not claim that the regulation itself violates the First Amendment;

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rather, he asserts that the regulation as applied to him is unconstitutional. Plaintiff claims that
Maxim magazine is on the list of approved publications at the facility and that other inmates are
allowed unfettered access to it. Of course, Plaintiff is a participant in the SDP program at Big
Muddy, and therefore, additional restrictions may legitimately be applied to him. Whether the
application of the regulation to Plaintiff serves a legitimate penological interest is a factual
determination that cannot be resolved at this stage. As such, Plaintiff may proceed on his First
Amendment claim for damages against the defendants he claims ordered, implemented, and
approved of the confiscations: Defendants Stover, Holt, and Roeckeman. In addition, he may
pursue his claim for injunctive relief against Defendant Roeckeman, in his official capacity as
warden of Big Muddy. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (holding
that in a claim for injunctive relief, the government official who is responsible for carrying out
the requested relief should be named as a defendant in his or her official capacity).
However, Plaintiff may not proceed on his claim against Defendant Godinez.
Although Plaintiff lists Godinez (director of the Illinois Department of Corrections) in the
caption, he makes no allegations against him 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. 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). And in the case of defendants in supervisory positions, the
doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266

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F.3d 724, 740 (7th Cir. 2001) (citations omitted). Plaintiff has not alleged that Godinez is
“personally responsible for the deprivation of a constitutional right,” id., and he cannot be liable
merely because he supervised a person who caused a constitutional violation. Accordingly,
Defendant Godinez will be dismissed from this action without prejudice.
Count 2: Fourth Amendment Claim
The United States Supreme Court has held that a prisoner has no expectation of
privacy in his prison cell.
[S]ociety is not prepared to recognize as legitimate any subjective expectation of
privacy that a prisoner might have in his prison cell and that, accordingly, the
Fourth Amendment proscription against unreasonable searches does not apply
within the confines of the prison cell. The recognition of privacy rights for
prisoners in their individual cells simply cannot be reconciled with the concept of
incarceration and the needs and objectives of penal institutions.
Hudson v. Palmer, 468 U.S. 517, 526 (1984). Accordingly, Plaintiff has no Fourth Amendment
claim regarding the search of his cell. Count 2 shall be dismissed against all Defendants.
Count 3: Due Process Claim
Plaintiff additionally asserts that confiscation of his magazines and his list
constitutes an unlawful seizure of his property. The only constitutional right that might be
implicated by these facts is Plaintiff’s right, under the Fourteenth Amendment, to be free from
deprivations of his property by state actors without due process of law. To state a claim under
the due process clause of the Fourteenth Amendment, Plaintiff must establish a deprivation of
liberty or property without due process of law; if the state provides an adequate remedy, Plaintiff
has no civil rights claim. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984) (availability of
damages remedy in state claims court is an adequate, post-deprivation remedy). The Seventh
Circuit has found that Illinois provides an adequate post-deprivation remedy in an action for

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damages in the Illinois Court of Claims. Sorrentino v. Godinez, No. 13-3421, 2015 WL 294383,
at *3 (7th Cir. Jan. 23, 2015); Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999);
Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8 (1995). As
such, Count 3 shall be dismissed against all Defendants.
Request for Preliminary Injunctive Relief
In his prayer for relief, Plaintiff seeks compensatory and punitive damages, return
of his personal property, a declaratory judgment, as well as preliminary and permanent injunctive
relief. (Doc. 1, p. 20). Plaintiff makes no other mention of a preliminary injunction throughout
the body of his complaint, nor does he file a separate motion or documentation in support of his
request for immediate injunctive relief.
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
original)). 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.
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
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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).
Without expressing any opinion on the merits of Plaintiff’s other claims for relief,
the Court is of the opinion that a preliminary injunction should not be issued in this matter at this
time. A preliminary injunction is typically intended to “preserve the status quo until the merits
of a case may be resolved.” Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766, 770 (7th
Cir. 2001). Here, Plaintiff requests a preliminary injunction ordering Defendants to “strictly
adhere to [Illinois Department of Corrections Authorized Publication regulation], and
particularly to allow those housed in the civil commitment program in this facility to access and
possess any publications which are on the approved publications list in accordance with [Illinois
Department of Corrections Authorized Publication regulation].” (Doc. 1, p. 20).
The Seventh Circuit has repeatedly upheld prison administrator’s decisions
restricting inmates’ speech. See e.g., Van den Bosch v. Raemisch, 658 F.3d 778, 788 (7th
Cir.2011) (banning newsletter that accused parole commission of manipulating and lying to
inmates); Toston v. Thurmer, 689 F.3d 828, 830–31 (7th Cir.2012) (banning possession of Black
Panther's Ten–Point Program, calling for freedom of all blacks in prison). Furthermore, even if
Plaintiff did in fact succeed on his First Amendment claim, he would be entitled to both the
confiscated List and the past issues of Maxim magazine.
demonstrate how he would suffer irreparable harm.

Thus, Plaintiff has failed to

Accordingly, Plaintiff’s request for a

preliminary injunction (Doc. 2) is DENIED.
Additional Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) remains PENDING and
shall be referred to United States Magistrate Judge Williams for a decision.

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The motion for service at government expense (Doc. 4) is GRANTED IN PART
AND DENIED IN PART. Service shall be ordered below for those Defendants who remain in
the action. No service shall be made on the dismissed Defendant.
Disposition
IT IS HEREBY ORDERED that Defendant GODINEZ is DISMISSED
without prejudice.
IT IS FURTHER ORDERED that Plaintiff may proceed on his First
Amendment claim (Count 1) for monetary relief against Defendants STOVER, HOLT, and
ROECKEMAN, in their individual capacities. He may also proceed on his First Amendment
claim (Count 1) for injunctive relief against Defendant ROECKEMAN, in his official capacity.
Counts 2 and 3 are DISMISSED with prejudice for failure to state a claim upon
which relief may be granted.
The Clerk of Court shall prepare for Defendants STOVER, HOLT, and
ROECKEMAN:

(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

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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 United States
Magistrate Judge Williams 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 Williams 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.

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§ 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: February 6, 2015
s/ MICHAEL J. REAGAN
Chief District Judge

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