Cortes v. Stolworthy et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge Staci M. Yandle on 7/27/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SERGIO CORTES,
Plaintiff,
vs.
DONALD STOLWORTHY, et al., 1
Defendants.

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Case No. 3:15-cv-00690-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Sergio Cortes is currently incarcerated at the Lawrence Correctional Center in Sumner,
Illinois. (Doc. 1 at 1.) Proceeding pro se, Cortes has brought a civil rights action pursuant to 42
U.S.C. § 1983, alleging that his constitutional rights were violated during a strip search and cell
shakedown conducted by the Orange Crush Tactical Team at Lawrence on July 10, 2014. (Id. at
2-3.) The named defendants include Donald Stolworthy, the Director of the Illinois Department
of Corrections; Joseph Yurkovich, the Chief of Operations for the Illinois Department of
Corrections; and Stephen Duncan, the Warden of Lawrence. (Id. at 5.) Cortes has also named
fifty-four corrections officers, who he alleges were members of the Orange Crush team assigned
to Lawrence during the search, as well as an Unknown Party placeholder for members of the
Orange Crush team that he could not identify before filing his complaint. (Id. at 6.) Cortes seeks
injunctive relief, compensatory damages, and punitive damages. (Id. at 17-25.)
This matter is now before the Court for a preliminary review of Cortes’ complaint
1

A few corrections to the caption are in order. For one, the CLERK is DIRECTED to remove
Janey Carle and add Janet Carle to this case. In addition, Cortes included Christopher Brant,
Ethan Clary, Matthew Winka, and Michael Dean as parties in his more-developed list of
defendants, but did not include those individuals in the caption. Because this appears to be an
oversight, the CLERK is DIRECTED to add those parties as defendants to this case.
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pursuant to 28 U.S.C. § 1915A. Under 28 U.S.C. § 1915A, the Court shall review a “complaint
in a civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a government entity.” During this preliminary review under § 1915A, the court
“shall identify cognizable claims or dismiss the complaint, or any portion of the complaint,” if
the complaint “is frivolous, malicious, or fails to state a claim on which relief may be granted” or
if it “seeks monetary relief from a defendant who is immune from such relief.”
Background
Cortes’ housing unit at Lawrence was searched by the Orange Crush officers on July 10,
2014. (Id. at 8.) Upon entering his housing wing, the officers began “making loud noises” while
“hitting their batons on the walls, doors, and railings.” (Id.) Two of the Orange Crush officers
lined up in front of Cortes’ cell and told him to get “buck ass naked!” (Id.) Once Cortes and his
cellmate were nude, one of the officers ordered Cortes’ cellmate to turn around and spread his
buttocks, and then directed Cortes’ cellmate to face the officer and lift up his genitals. (Id. at 9.)
The officer then ordered Cortes’ cellmate to use his hands to search his own mouth for
contraband. (Id.) The officers tried to order Cortes to engage in the same behavior, but ran into
a language barrier, as Cortes speaks limited English. (Id.) The officers then used Cortes’
cellmate as a translator, ordering Cortes to duplicate the search on himself. (Id.) During the
search, Cortes noticed that one of the officers watching the search was female. (Id. at 10.)
After the search was finished, the officers directed Cortes and his cellmate to dress in
pants, a State-blue overshirt, and boots, but did not permit them to put on underwear. (Id.)
Cortes and the other inmates were then ordered outside of their cells and to a nearby wall, where
they were directed to keep their backs to the officers, their heads down, and to not look at the
officers. (Id.) While in this position, Cortes and other inmates were handcuffed “in a very

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painful manner,” causing injuries to Cortes’ wrists. (Id.) When Cortes moaned in pain, one of
the officers told him to “[s]top acting like a fucking baby and shut the fuck up.” (Id.)
Cortes and the other inmates were then directed to walk out of the housing wing. (Id. at
11.) During the walk, Cortes saw a few objects on the ground, and he glanced down to look at
them. (Id.) This led one of the officers to rush at Cortes, jump up, and kick Cortes in his lower
back, causing him to fall to the ground. (Id.) At this point, several other officers began
screaming at Cortes to “get the fuck up and back on your feet.” (Id.) Cortes had trouble on
account of the handcuffs, so one of the officers grabbed his back and “painfully pulled him back
onto his feet.” (Id.) As Cortes exited the housing unit, one of the officers – Michael Gilreath –
was waiting and “beating” on all of the inmates that passed through the door. (Id.)
After exiting the housing unit, officers lined Cortes up next to other inmates and began
hitting their batons, chanting “Time to pay” and other epithets. (Id.) Once the chanting stopped,
officers grabbed the back of Cortes’ head and “slammed it violently into the back of the inmate
ahead of him in line.” (Id.) The officers then ordered the inmates to stand in such a way that one
inmate’s genitals were in direct contact with the buttocks of the inmate ahead – a practice
referred to as “Nuts to Butts” by the officers. (Id. at 11-12.) To squeeze Cortes closer to another
inmate, Cortes says that one officer shoved his baton in between Cortes’ legs, causing Cortes to
straighten his legs and force his hips into the inmate in front of him. (Id. at 12.) The officers
then ordered all of the inmates to walk in this manner to the prison cafeteria, yelling that they
wanted “no fucking daylight” between the prisoners along the way. (Id.) During the walk to the
cafeteria, if one of the inmates pulled his head back from the inmate in front of him, the officers
would attack him. (Id.) Cortes himself was “poked and hit” during the march. (Id.)
When the prisoners arrived at the cafeteria, they were kept in handcuffs and ordered to sit

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at solid metal tables with their chins pressed to their chest. (Id. at 13.) One officer – Steven
Conrad – was initially helping some of the inmates who were in pain, but when an unknown
Orange Crush officer saw him helping, he told Conrad to stop and reprimanded him. (Id.)
Cortes’ cellmate, at Cortes’ behest, tried to get Conrad to help Cortes, but Conrad said that he
“wish[ed] [he] could,” but that he “already got [his] ass chewed for helping.” (Id.)
After several hours in the cafeteria, the Orange Crush officers returned. (Id.) They lined
up Cortes and the other inmates, again slammed the inmates’ heads into the back of the inmates
ahead of them, and ordered all involved into “Nuts to Butts” formation for the walk back to their
cells. (Id.) When Cortes arrived in his cell, he found that his cell had been “destroyed along
with his property.” (Id. at 14.) Several items of Cortes’ personal property had been taken,
including items he purchased from the commissary and an outside art supplier at Lawrence. (Id.)
Cortes received a shakedown slip sometime thereafter: the identification of the officer who
searched his cell had been “obscured,” and the slip contained an “inaccurate account” of what
had been taken. (Id.) Cortes’ cellmate expressed outrage at the condition of his cell, and an
officer told him that his cell might not end up that way if he stopped “filing lawsuits.” (Id. at 1415.) Warden Duncan was present nearby during this outburst and, in response to the cellmate’s
complaints, told him to “write a grievance” – that he did not “want to hear about it.” (Id. at 15.)
Cortes asserts that both the strip search and movement of inmates were purposely
conducted in a humiliating manner. (Id.) He also says that officers executed the shakedown
procedures pursuant to a policy or practice that was “implemented, overseen, and encouraged by
[Illinois Department of Corrections] supervisors,” including Yurkovich and Duncan. (Id. at 16.)
Discussion
The Court will begin with a preliminary note concerning the handling of Orange Crush

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cases in the Southern District of Illinois. Cortes’ complaint here closely tracks the pleading in
Ross v. Gossett, Case No. 15-cv-309-SMY-PMF, which was filed in this Court on March 19,
2015. The plaintiff in Ross is seeking injunctive relief and damages on behalf of himself and a
class of prisoners that were subjected to similar strip searches while incarcerated at Lawrence
and three other Illinois prisons during 2014. Should the Ross class be certified, Cortes would
likely be a member of the class. Owing to the similarities between the two cases and the need to
consolidate judicial resources, Cortes’ case was transferred to the undersigned judge.
With that point out of the way, the Court will evaluate Cortes’ complaint pursuant to 28
U.S.C. § 1915A. In his complaint, Cortes has listed five discrete causes of action, which are set
out below. Because Cortes has enumerated all of his claims, the Court will rely on his list for the
operative causes of action that Cortes wishes to bring in this case.
COUNT 1:

Eighth Amendment claim against all Defendants for inflicting unnecessary
physical and emotional pain and suffering upon Plaintiff during the strip
search, shakedown, and related actions.

COUNT 2:

Conspiracy under 42 U.S.C. § 1983, in that Defendants agreed to deprive
Plaintiff of his constitutional rights and protect one another from liability.

COUNT 3:

Eighth Amendment claim for failure to intervene to prevent the violation
of Plaintiff’s constitutional rights.

COUNT 4:

Violation of the Prison Rape Elimination Act, 42 U.S.C. § 15607.

COUNT 5:

Intentional infliction of emotional distress under Illinois state law.

Given the similarity between Cortes’ complaint and the complaint in Ross, the fact that
the complaint in Ross was permitted through screening, and the fact that a motion to dismiss is
pending in Ross but not yet decided, the Court is of the opinion that the above counts cannot be
dismissed at this time. The complaint will be allowed to proceed. However, the Court stresses
that the defendants are not precluded from moving to dismiss the complaint or portions of it for

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the reasons articulated in the Ross motion to dismiss (or for any other reasons).
One final note concerning the Unknown Party Orange Crush officers: these officers must
be identified with particularity before service of the complaint can occur on them. Where a
prisoner’s complaint states specific allegations describing the conduct of unknown corrections
officers sufficient to raise a constitutional claim against them, the prisoner should have the
opportunity to engage in limited discovery in order to ascertain the identity of those defendants.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir.2009). In this case,
guidelines for discovery aimed at identifying the unknown parties will be set by the magistrate
judge. Once the unknown Orange Crush officers are identified, Cortes shall file a motion to
substitute the named individuals with the Unknown Party officer designations.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s complaint shall proceed through screening.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Service of Process at
Government Expense (Doc. 3) is GRANTED. Service will be ordered as indicated below.
The Clerk of Court shall prepare for Defendants STOLWORTHY, YURKOVICH,
DUNCAN, GILREATH, TANNER, STOUT, MONICAL, LEWIS, YONAKA, JOHNSON,
JENKINS, CARLE, BROWN, SAWYER, McCORMICK, GINDER, PATTERSON,
BERRY, BAYLOR, CARROLL, STUCK, WEBER, DUST, CARTER, HARRINGTON,
SHEHORN, KIDD, VAUGHN, OCHS, LIVINGSTON, KAMP, SENN, RALSTON,
GOBLE, AUSBROOK, BRANT, CLARY, WINKA, DEAN, CALES, GOSNELL,
LOCKHART, TRIBBLE, GANGLOFF, THOMASON, ECKELBERRY, LINE, MILAM,
BUCHANAN, HAMILTON, VOLK, PERKINS, BROOKS, CHENAULT JR., MULLIN,
MAYS, and RICHEY: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a

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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.
Service shall not be made on the Unknown Party defendants until such time as Plaintiff
has identified them by name in a properly filed amended complaint. It is Plaintiff's responsibility
to provide the Court with the names and service addresses for these individuals.
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

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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 Stephen C. 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
Stephen C. 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. § 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).

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IT IS SO ORDERED.
DATED: July 27, 2015

s/ STACI M. YANDLE
United States District Judge

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