Henderson v. Butler et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. One of the exhibits to the complaint is a motion for appointment of counsel, which the CLERK is hereby DIRECTED to DOCKET in CM/ECF. (Doc. 1-1, pp. 27-30). This motion will be REFERRED to a United States Magistrate Judge for a decision. Signed by Judge J. Phil Gilbert on 11/5/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAUN HENDERSON, #R40853,

)
)
Plaintiff,
)
)
vs.
)
)
KIMBERLY BUTLER, SUE HILL,
)
SALVADOR GODINEZ, LORI OAKLEY, )
ALEX JONES, BRANDON ANTHONY,
)
G. HAYNES, L. PHELPS, DR. TROST,
)
INTERNAL AFFAIRS UNIT,
)
)
J. SHOENBECK, 1 VICKI PAYNE,
LINDA CARTER, J. HART, C. FLEMING, )
K. BROOKMAN, PAT QUINN, T.S. KEEN, )
WEXFORD HEALTH SOURCES, INC.,
)
ILLINOIS DEPARTMENT OF
)
CORRECTIONS, C. SUMNER,
)
and UNKNOWN PARTIES,
)
)
Defendants.
)

Case No. 15-00529-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Shaun Henderson, who is currently incarcerated at Menard Correctional Center
(“Menard”), brings this civil rights action pursuant to 42 U.S.C. § 1983. He is serving a 150year sentence for murder. In the complaint, Plaintiff claims that he was unlawfully held in
segregation for two false disciplinary tickets in 2013 and one false disciplinary ticket in 2014.
He now sues twenty-one known and numerous unknown defendants for retaliating against him in
violation of the First Amendment, subjecting him to cruel and unusual punishment in violation of
the Eighth Amendment, and depriving him of a protected liberty interest without due process of

1

Although this defendant is identified as “J. Shoen” in CM/ECF, the complaint identifies the defendant as
“J. Shoenbeck.” Therefore, the CLERK will be DIRECTED to change the name of this party to
“J. Shoenbeck” on the docket sheet in CM/ECF.
Page 1 of 19

law in violation of the Fourteenth Amendment. He seeks monetary damages and injunctive
relief.
The complaint is ripe for preliminary review pursuant to 28 U.S.C. § 1915A.2
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious
claims. 28 U.S.C. § 1915A(a). The Court must 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). Portions of the complaint survive preliminary review under this standard.
The Complaint
The complaint (Doc. 1) focuses on events that occurred at Menard in 2013 and 2014,
when prison officials discovered two cellular phones in Plaintiff’s prison cell. (Doc. 1, p. 6).
Plaintiff and his cellmate were placed in segregation on May 4, 2013. (Id.). Officer Haynes
issued each inmate a disciplinary ticket for possession of contraband (“first ticket”).
At a disciplinary hearing before Menard’s adjustment committee on May 7, 2013,
Plaintiff’s cellmate admitted that both phones were his. Chairperson Veath and Officer Hart
found Plaintiff not guilty of the rule violation and expunged his first ticket.

(Id.).

Warden Harrington signed off on this decision. (Doc. 1-1, p. 15).

2

Plaintiff commenced this action in May 2015 without prepaying the $400.00 filing fee, despite having
sufficient funds to do so. Instead, he filed a complaint (Doc. 1), a motion for temporary restraining order
and/or preliminary injunction (Doc. 2), and a motion for leave to proceed in forma pauperis (“IFP”)
(Doc. 3). The Court immediately considered his request for a TRO, but found no basis for granting it.
(Doc. 5). The Court also denied Plaintiff’s request for IFP status and ordered him to prepay the filing fee
no later than June 18, 2015, or the action would be dismissed. (Doc. 6). Plaintiff asked the Court to
reconsider its decision to deny his IFP motion. (Doc. 7). The Court denied the request on June 22, 2015,
but granted Plaintiff additional time (until July 20, 2015) to pay his filing fee. (Doc. 8).
On July 14, 2015, Plaintiff filed a motion seeking a second extension of the payment deadline. (Doc. 9).
Before ruling on the motion, the Court received Plaintiff’s full filing fee of $400.00.
Page 2 of 19

Plaintiff received a second false disciplinary ticket on May 4, 2013, for “test[ing] positive
for THC” (“second ticket”). (Doc. 1, p. 7; Doc. 1-1, p. 15). Officers Anthony and Shoenbeck
allegedly issued Plaintiff the ticket in retaliation for denying any knowledge of the phones.
(Doc. 1, p. 9). When the results of his drug test came back negative, Chairperson Veath and
Officer Hart again found Plaintiff not guilty of this rule violation. They expunged the second
disciplinary ticket. Warden Harrington also signed off on the decision. (Doc. 1-1, p. 15).
Plaintiff maintains that he should have been released from segregation as soon as the
adjustment committee found him not guilty of the rule violations and expunged his first and
second tickets on May 7, 2013. (Doc. 1, pp. 8-9). Instead, he remained in segregation for
approximately seventy days. (Id. at 29-30). He was held in “disciplinary” or “temporary
confinement” status until June 11, 2013.

His status was changed to “investigative” on

June 11, 2013, and he was not released from segregation until July 11, 2013. (Id. at 9, 11, 30).
During the investigation, Menard’s Internal Affairs Unit informed Plaintiff that an officer
was suspected of bringing the phones into the prison, and they “needed a name.”

(Id.).

Plaintiff insisted that he knew nothing about the phones. The Internal Affairs Unit officers did
not accept this response and told Plaintiff that he was “going down hard [and] fast” for failing to
cooperate with them. (Id. at 7).
While in segregation, Plaintiff was placed behind a “steel door” in the “heart of the
summer.” (Id.). Temperatures regularly soared above ninety degrees. For the first twelve days,
Plaintiff was denied access to his fan, legal materials, bedding, clothing, and toiletries. He was
forced to sleep on a urine-stained mattress that caused him to break out in a rash. His request for
medical attention was denied. He was also denied access to cleaning supplies.

Page 3 of 19

Even after his status changed to “investigative,” Plaintiff was denied access to audiovisual items. (Id.). His legal documents were removed from his property box. (Id.). His request
for a prison transfer was denied. (Id. at 14). And he was permanently denied contact visits with
several family members, who were accused of conspiring to bring contraband into the prison.
(Id. at 14-15).
Plaintiff wrote to Director Godinez, Warden Butler, Assistant Warden Jones, Counselor
Payne, Counselor Sumner, Counselor Hill, and Officer Brookman to complain about his
continued confinement in segregation, the conditions of his confinement, the denial of medical
care, and harassment by prison officials. (Id. at 10). All of his grievances were ignored,
destroyed, or denied. 3 Sometimes, prison officials ripped up his grievances in his presence.
Other times, he received the following response: “Offender failed to provide evidence to
substantiate his claim of staff misconduct.” 4 (Id.). No investigation was conducted into his
complaints. (Id. at 13, 16).
The investigation culminated in a search of Officer Fleming’s home.

(Id. at 17).

The officer blamed Plaintiff for this and targeted him for harassment. In September 2014,
Officer Fleming wrote Plaintiff a third disciplinary ticket (“third ticket”) for unauthorized
movement, disobeying a direct order, and rule violations, which Plaintiff claims was also false.
(Id. at 36). An emergency grievance that Plaintiff filed as an exhibit to the complaint indicates
that he was found guilty of the third disciplinary ticket and punished with three months in
segregation, following an unfair disciplinary hearing. (Doc. 1-1, pp. 12-14). Officer Fleming

3

Plaintiff alleges that Menard employees adhere to the “blue code,” which he describes as an unwritten
policy of “stick[ing] together to protect one another” from allegations of misconduct by inmates.
(Id. at 13). Consistent with this policy, his grievances were destroyed, ignored, or denied.
4
Plaintiff admits that he intentionally omitted the names of prison officials in grievances because he
feared retaliation. (Id. at 18).
Page 4 of 19

also “threaten[e]d” Plaintiff and, along with Officer Smith, confiscated his identification card on
two occasions. (Id. at 17).
Plaintiff now sues twenty-one known and numerous unknown defendants for retaliation
under the First Amendment, cruel and unusual punishment under the Eighth Amendment, and
the deprivation of liberty without due process of law under the Fourteenth Amendment.
Plaintiff seeks monetary damages. He also seeks a prison transfer to avoid harassment and
retaliation by Menard officials. Finally, he seeks the appointment of a hearing investigator to
oversee the disciplinary ticket and hearing process at Menard.
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 has
organized the claims in Plaintiff’s pro se complaint into the following enumerated counts:
Count 1:

Fourteenth Amendment claim against the defendants for
depriving Plaintiff of a protected liberty interest without due
process of law by placing him in segregation for approximately
seventy days in 2013 for the first and second tickets;

Count 2:

Fourteenth Amendment claim against the defendants for
depriving Plaintiff of a protected liberty interest without due
process of law by placing him in segregation for approximately
ninety days in 2014 for a third ticket;

Count 3:

Eighth Amendment claim against the defendants for subjecting
Plaintiff to unconstitutional conditions of confinement in
segregation from May 4 - July 11, 2013;

Count 4:

Eighth Amendment claim against the defendants for exhibiting
deliberate indifference to Plaintiff’s medical needs when he
broke out in a rash in 2013;

Count 5:

Fourteenth Amendment claim against the defendants for
mishandling Plaintiff’s grievances;

Page 5 of 19

Count 6:

Fourteenth Amendment denial of access to courts claim against
the defendants for confiscating Plaintiff’s legal papers and
writing materials while he was in segregation;

Count 7:

Conspiracy claim against the defendants; and

Count 8:

First Amendment retaliation claim against the defendants for
issuing Plaintiff a disciplinary ticket because of his
participation (or lack thereof) in the cellular phone
investigation.

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 regarding their merit. Any other claim that is mentioned in the complaint
but not addressed in this Order should be considered dismissed without prejudice.
As discussed in more detail below, Counts 2, 3, 7, and 8 shall receive further review.
Counts 1, 4, and 6 shall be dismissed without prejudice for failure to state a claim upon which
relief may be granted, and Count 5 shall be dismissed with prejudice for the same reason.
Counts 1 & 2 – Deprivation of a Protected Liberty Interest Without Due Process
Standing alone, the receipt of a false disciplinary ticket does not give rise to a due process
violation.

This is because “due process safeguards associated with prison disciplinary

proceedings are sufficient to guard against potential abuses[,] [and a] hearing before a
presumably impartial Adjustment Committee terminates an officer’s possible liability for the
filing of an allegedly false disciplinary report.”

Hadley v. Peters, 841 F. Supp. 850, 856

(C.D. Ill. 1994), aff’d, 70 F.3d 117 (7th Cir. 1995) (citations omitted).
Due process safeguards that are associated with prison disciplinary hearings include:
(1) advance written notice of the charges; (2) the opportunity to appear before an impartial
hearing body to contest the charges; (3) the opportunity to call witnesses and present
documentary evidence as a defense (if prison safety allows and subject to the discretion of
Page 6 of 19

correctional officers); and (4) a written statement summarizing the reasons for the discipline
imposed. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974). In addition, the decision of the
adjustment committee must be supported by “some evidence.” Black v. Lane, 22 F.3d 1395
(7th Cir. 1994).
But even if an inmate’s due process rights are violated, he still may not have a
Fourteenth Amendment claim.
segregation is limited.”

This is because an “inmate’s liberty interest in avoiding

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)). A protected liberty
interest arises only when Plaintiff’s confinement in segregation “impose[s] 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)). When making
this determination, Courts consider “the combined import of the duration of the segregative [sic]
confinement and the conditions endured.” Id. at 743 (citing Marion, 559 F.3d at 697-98)
(emphasis in original). Fourteenth Amendment due process protections are only triggered when
the duration of confinement is sufficiently long and the conditions in segregation are particularly
harsh. Against this backdrop, the Court will consider the merits of Counts 1 and 2.
Count 1 – First and Second Tickets
Plaintiff challenges his placement in segregation, following the issuance of two
disciplinary tickets on May 4, 2013 (Count 1). Defendants Haynes, Anthony, and Shoenbeck
issued the tickets. Following a hearing on May 7, 2013, Defendants Veath, Hart, and Harrison
found Plaintiff not guilty of the rule violations and expunged both tickets. Despite this outcome,
Plaintiff remained in segregation for a total of 68 days (i.e., May 4 - July 11, 2013). He spent the
first 38 days in “disciplinary” segregation (i.e., May 4 - June 11, 2013). He spent the next 30

Page 7 of 19

days in “investigative” segregation (i.e., June 11 - July 11, 2013). Plaintiff maintains that he
endured conditions in segregation that fell below constitutional standards.
A liberty interest does not arise unless the length of confinement in segregation is
substantial and the record reveals that the conditions of confinement are unusually harsh.
Marion, 559 F.3d at 697-98, n. 2. A term of segregation that is lengthy requires scrutiny of the
actual conditions of segregation, whereas a shorter period of confinement may not. Id. (citing
Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005) (analyzing conditions of confinement but
noting that inmate’s segregation “was still not so long as to work an atypical and significant
hardship) (90 days); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1998) (holding that no liberty
interest was implicated and noting “it was obviously a relatively short period when one considers
his 12 year prison sentence”) (approximately 70 days)).
Plaintiff’s confinement in disciplinary segregation for 38 days qualifies as a short period
of confinement and gives rise to no protected liberty interest under the Fourteenth Amendment.
The same can be said of his confinement in “investigative” segregation for 30 days, or, for that
matter, the combined 68-day period of confinement in segregation. The Constitution itself “does
not create an interest in avoiding transfer[s] within a correctional facility.” Townsend v. Fuchs,
522 F.3d 765, 771 (7th Cir. 2008) (citing Wilkinson v. Austin, 545 U.S. 209, 222-24 (2005);
Meachum v. Fano, 427 U.S. 215, 225 (1976)). In fact, “inmates have no liberty interest in
avoiding

transfer[s]

to

discretionary

segregation—that

is,

segregation

imposed

for

administrative, protective, or investigative purposes.” Sandin, 515 U.S. at 483-84 (citing Lekas,
405 F.3d at 608-09 n. 4 (“[R]eassignment from the general population to discretionary
segregation does not constitute a deprivation of a liberty interest.”)); Crowder v. True, 74 F.3d
812, 815 (7th Cir. 1996).

Discretionary, or administrative, segregation is not considered

Page 8 of 19

“atypical,” but rather an “ordinary incident of prison life” that inmates should anticipate during
their time in prison. Townsend, 522 F.3d at 771.
Given this precedent, the Court finds that Plaintiff’s confinement in segregation
following the issuance of the first and second disciplinary ticket triggers no due process
protections.

And he complains of no due process violations associated with the hearing.

Both tickets were expunged following a presumably fair hearing. Accordingly, Count 1 shall be
dismissed without prejudice. To the extent that any claim arises from Plaintiff’s confinement in
segregation in 2013, it should be addressed under the Eighth Amendment (see Count 3 below).
Count 2 – Third Ticket
Count 2 shall receive further review. Plaintiff claims that he was deprived of a protected
liberty interest without due process of law when he was punished with 90 days in segregation for
the false disciplinary ticket that he received from Defendant Fleming in September 2014.
Plaintiff complains of numerous Wolff violations at the disciplinary hearing on the ticket.
Among other things, he was allegedly denied the opportunity to testify or call witnesses.
Although the complaint does not describe the conditions that Plaintiff endured in segregation
during that 90-day period, the Court cannot dismiss this claim without further factual inquiry into
those

conditions

to

determine

whether

due

process

protections

were

triggered.

Accordingly, Count 2 shall proceed against Defendant Fleming, the only defendant named in
connection with this ticket. The claim shall be dismissed without prejudice against all other
defendants.
Count 3 – Conditions of Confinement
The Eighth Amendment conditions of confinement claim (Count 3) against Defendants
Godinez, Butler, Jones, Payne, Sumner, Hill, and Brookman shall also receive further review.

Page 9 of 19

This claim arises from the conditions Plaintiff endured in segregation between May 4 and
July 11, 2013. Plaintiff allegedly notified each of these individuals about the conditions he
faced, but maintains that they “turned a blind eye” to his complaints.
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). Prison 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,
511 U.S. 825, 834 (1994) (citation omitted)).
The Seventh Circuit has observed that “conditions of confinement may violate the
Constitution in combination when they have a ‘mutually enforcing effect that produces the
deprivation

of

a

single,

identifiable

human

need.’”

Budd,

711

F.3d

at

842

(quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991); see also Murphy v. Walker, 51 F.3d 714,
721 (7th Cir. 1995)). At this stage, the allegations in the complaint suggest that Plaintiff endured
conditions in segregation in 2013 that may have violated constitutional norms. However, the
analysis does not end there.
In order to survive preliminary review on a claim of unconstitutional conditions of
confinement, the complaint must also suggest that a particular prison official had a sufficiently
culpable state of mind. Wilson, 501 U.S. at 298. The relevant state of mind is deliberate
indifference to inmate health or safety; the official must be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he also must draw the

Page 10 of 19

inference. See, e.g., Farmer, 511 U.S. 837; Wilson, 501 U.S. at 303; Estelle v. Gamble, 429 U.S.
97, 104 (1976); Del Raine v. Williford, 32 F.3d 1024, 1032 (7th Cir. 1994). Plaintiff alleges that
he notified Defendants Godinez, Butler, Jones, Payne, Sumner, Hill, and Brookman about the
soaring temperatures, denial of a fan, issuance of a filthy mattress, resulting rash, and denial of
clothing, bedding, hygiene items and cleaning supplies. They neither looked into his complaints
nor took any action to address the conditions. At this early stage, the Court will allow Plaintiff to
proceed with Count 3 against Defendants Godinez, Butler, Jones, Payne, Sumner, Hill, and
Brookman. This claim shall be dismissed without prejudice against the remaining defendants.
Count 4 – Deliberate Indifference to Rash
The complaint articulates no Eighth Amendment deliberate indifference to medical needs
claim (Count 4) against the defendants for failing to treat Plaintiff’s rash. The Supreme Court
has recognized that “deliberate indifference to serious medical needs of prisoners” may
constitute cruel and unusual punishment under the Eighth Amendment. Estelle, 429 U.S. at 104;
see Erickson v. Pardus, 551 U.S. 89, 94 (2006) (per curiam). To state a claim, an inmate must
show that the: (1) medical condition was objectively serious, and (2) state officials acted with
deliberate indifference to the inmate’s health or safety, which is a subjective standard.
Farmer, 511 U.S. at 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).
The complaint does not satisfy either requirement.
A serious medical need is one that is obvious to a lay person or one that has been
diagnosed by a physician as requiring treatment. Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997).

The allegations do not suggest that Plaintiff’s rash was serious.

Beyond mentioning the condition, Plaintiff offers no additional information about it, such as the

Page 11 of 19

size of the rash, the length of time he endured it, or other symptoms associated with it. Given the
lack of information, the Court cannot assess the objective seriousness of the condition.
Further, the Court cannot determine whether any particular defendant responded to
Plaintiff’s requests for treatment of the rash with deliberate indifference.

The complaint

mentions no one in connection with this claim. Therefore, the Court is unable to conclude that
any particular defendant responded to Plaintiff’s request for medical care with the requisite state
of mind. Under the circumstances, Count 4 shall be dismissed without prejudice against all of
the defendants.
Count 5 – Mishandling of Grievances
The complaint also supports no Fourteenth Amendment due process claim (Count 5)
against the defendants for mishandling Plaintiff’s grievances. Prison grievance procedures are
not constitutionally mandated and thus do not implicate the Due Process Clause per se.
“[A] state’s inmate grievance procedures do not give rise to a liberty interest protected by the
Due Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Therefore, 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). The Court finds no
basis for allowing Plaintiff to proceed against anyone on this claim. Count 5 shall be dismissed
with prejudice.
Count 6 – Denial of Access to the Courts
The complaint also fails to articulate a claim against the defendants for denying Plaintiff
access to the Courts (Count 6), based on the denial of access to his legal materials in
segregation. The Seventh Circuit uses a two-part test to decide if prison administrators have

Page 12 of 19

violated the right of access to the courts. Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004).
First, the plaintiff must show that prison officials failed “to assist in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.” Jenkins v. Lane, 977 F.2d 266, 268 (7th Cir. 1992)
(quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). Second, he must be able to show “some
quantum of detriment caused by the challenged conduct of state officials resulting in the
interruption and/or delay of plaintiff’s pending or contemplated litigation.” Alston v. DeBruyn,
13 F.3d 1036, 1041 (7th Cir. 1994); see also Lehn, 364 F. 3d at 868. That means that a detriment
must exist, a detriment resulting from illegal conduct that affects litigation. It does not mean that
any delay is a detriment. Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir. 1992), cert. denied,
506 U.S. 1062 (1993). Regardless of the length of an alleged delay, a prisoner must show actual
substantial prejudice to specific litigation. Id. at 603.
The complaint does not meet these requirements. Plaintiff mentions the temporary denial
of access to writing materials and legal paper. He also mentions the confiscation of legal
documents. But he draws no connection between this conduct and his ability to pursue a nonfrivolous legal claim. The complaint simply does not suggest that Plaintiff suffered substantial
prejudice. Count 6 shall be dismissed without prejudice against all of the defendants.
Count 7 – Conspiracy
With one exception, Plaintiff’s catch-all conspiracy claim (Count 7) against the
defendants is unsupported by the allegations in the complaint. To state a conspiracy claim under
§ 1983, the plaintiff must plead conspiracy in some detail and provide some factual basis that
supports the existence of a conspiracy. Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204,
1206-07 (7th Cir. 1980). But “[m]ere conjecture that there has been a conspiracy is not enough

Page 13 of 19

to state a claim.” Id. Plaintiff’s allegations of a conspiracy are conclusory.
The only exception is Plaintiff’s claim against Defendants Anthony and Shoenbeck for
issuing Plaintiff the second ticket for use of THC, after he failed to provide them with
information about the two cellular phones. The allegations suggest that these two defendants
reached an agreement to issue Plaintiff the false disciplinary ticket, knowing that he would not
test positive for drugs. At this stage, Count 7 shall proceed only against Defendants Anthony
and Shoenbeck. It shall be dismissed without prejudice against all other defendants.
Count 8 – Retaliation
Finally, Plaintiff’s First Amendment retaliation claim (Count 8) shall receive further
review against Defendants Anthony, Shoenbeck, and Fleming. Plaintiff claims that each of these
prison officials issued him a false disciplinary ticket because of his participation (or lack thereof)
in the cellular phone investigation. In the prison context, where an inmate is alleging retaliation,
the inmate must identify the reasons for the retaliation, 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 Plaintiff must have engaged in some
protected activity, experienced an adverse action that would likely deter such protected activity
in the future, and must allege that the protected activity was “at least a motivating factor” in the
decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009).
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. at 439. The complaint satisfies minimum pleading
standards for a retaliation claim against each of these three defendants.
However, the same cannot be said of the retaliation claim against any other defendant.

Page 14 of 19

Although Plaintiff names numerous others in connection with this claim, he includes little more
than conclusory allegations against them. See Brooks v. Ross, 578 F.3d 574, 580-81 (7th Cir.
2009) (plaintiffs may not “merely parrot the statutory language of the claims that they are
pleading (something that anyone could do, regardless of what may be prompting the lawsuit)”
but must provide “some specific facts to ground those legal claims”). The complaint does not set
forth a chronology of events suggesting that any other defendant actually took steps to retaliate
against Plaintiff. This includes the Internal Affairs Unit officers, who told Plaintiff that he would
“go down hard [and] fast” for failing to provide information about the cellular phones; no
allegations suggest that they ever took any action against Plaintiff after making the threats.
(Doc. 1, p. 7). This also includes the denial of contact visits with Plaintiff’s siblings; here again,
the complaint included insufficient allegations suggesting that these restrictions were placed on
visits unjustifiably and for the purpose of retaliating against Plaintiff. 5 Count 8 shall proceed
against Defendants Anthony, Shoenbeck, and Fleming and be dismissed without prejudice
against the remaining defendants.
Pending Motions
1.

Motion for Preliminary Injunction (Doc. 2)
Along with the complaint, Plaintiff filed a motion for a temporary restraining order

(“TRO”) and/or preliminary injunction. (Doc. 2). In the motion, he sought the appointment of a
hearing investigator to oversee the disciplinary ticket and hearing process at Menard. He also
requested a prison transfer to avoid harassment and retaliation by Menard officials. (Id. at 6).

5

Plaintiff challenges the denial of contact visits on due process grounds as well. However, a due process
claim is unsupported by precedent. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454 (1989)
(inmates did not have a due process liberty interest in visitation privileges); Block v. Rutherford, 468 U.S.
576, 589 (1984) (“[T]he Constitution does not require that detainees be allowed contact visits when
responsible, experienced administrators have determined, in their sound discretion, that such visits will
jeopardize the security of the facility.”).
Page 15 of 19

Because Plaintiff requested a TRO, the Court immediately considered the motion, but found no
basis for granting him relief.

See Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680

(7th Cir. 2012). Accordingly, the Court denied Plaintiff’s request for a TRO. (Doc. 5).
The Court now reaches the same conclusion regarding Plaintiff’s request for a
preliminary injunction. “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 Res. Def. 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 primarily challenges the disciplinary procedures at Menard. To be clear, he
complains of three disciplinary tickets. The first two tickets were issued in 2013 and expunged
following a fair disciplinary hearing three days later. The third ticket was issued in 2014 and
resulted in punishment with ninety days in segregation. Plaintiff did not disclose more recent
tickets. And the Court finds no basis for issuing a preliminary injunction because of one unfair
disciplinary hearing that occurred more than a year ago.

By all indications, Plaintiff was

released from segregation after serving 90 days on the third disciplinary ticket.

There is no

present need, based on the motion and the complaint, for the Court to enter an interim order in
this matter.
Plaintiff’s request for a preliminary injunction in Document 2 is DENIED. However, the
denial is without prejudice. Should Plaintiff deem it necessary to request interim relief during
the pending action, he is free to file a new motion setting forth the reasons why he believes it is
warranted.

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2.

Motion for Extension of Time to Pay Filing Fee (Doc. 9)
Plaintiff’s motion for extension of time to pay filing fee is hereby DENIED as MOOT.

The Court has now received Plaintiff’s full filing fee of $400.00.
3.

Motion for Status Update (Doc. 10)
Plaintiff’s motion for status update (Doc. 10) is GRANTED. This Order constitutes the

Court’s update on all pending matters.
4.

Motion for Appointment of Counsel
One of the exhibits to the complaint is a motion for appointment of counsel, which the

CLERK is hereby DIRECTED to DOCKET in CM/ECF. (Doc. 1-1, pp. 27-30). This motion
will be REFERRED to a United States Magistrate Judge for a decision.
Disposition
The CLERK is hereby DIRECTED to change the name of “J. Shoen” to “J. Shoenbeck”
on the docket sheet in CM/ECF. The Court and all parties shall now refer to this defendant as
“J. Shoenbeck.”
IT IS ORDERED that COUNTS 1, 4, and 6 are DISMISSED without prejudice for
failure to state a claim upon which relief may be granted. COUNT 5 is DISMISSED with
prejudice for the same reason.
IT IS ORDERED that Defendants ILLINOIS DEPARTMENT OF CORRECTIONS,
INTERNAL AFFAIRS UNIT, WEXFORD HEALTH SOURCES, INC., G. HAYNES, L.
PHELPS, LORI OAKLEY, LINDA CARTER, J. HART, PAT QUINN, T. S. KEEN,
UNKNOWN PARTY, and DR. TROST are DISMISSED without prejudice from this action.
IT IS ALSO ORDERED that as to COUNTS 2, 3, 7, and 8, the Clerk of Court shall
prepare for Defendants KIMBERLY BUTLER, SALVADOR GODINEZ, ALEX JONES,

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BRANDON ANTHONY, J. SHOENBECK, VICKI PAYNE, SUE HILL, C. FLEMING, K.
BROOKMAN, and C. SUMNER: (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
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).

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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
appointment of counsel.
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. See 28 U.S.C.
§ 1915(f)(2)(A).
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 5, 2015

s/J. Phil Gilbert
U.S. District Judge

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