Verser v. Duncan et al

Filing 21

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge Staci M. Yandle on 12/11/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GLENN VERSER,
No. N-72074,
Plaintiff,
vs.
STEPHEN DUNCAN, et al.,
Defendants.

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Case No. 3:15-cv-01263-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Glenn Verser was recently released from prison. At all times relevant to this case, he was
incarcerated at the Lawrence Correctional Center in Sumner, Illinois. Proceeding pro se, Verser
brought this civil rights action (Doc. 1) in the United States District Court for the Central District
of Illinois. A preliminary review pursuant to 28 U.S.C. § 1915A was performed by District
Judge Sue E. Myerscough (Doc. 15). Judge Myerscough rejected Plaintiff’s attempt to pursue a
class action on behalf of all inmates at four Illinois prisons who were searched by the “Orange
Crush” Tactical Unit in 2014.

Plaintiff, however, was permitted to proceed with claims

stemming from his own personal experience when the Orange Crush searched Centralia
Correctional Center on July 10, 2014. The order intimated that an amended complaint was
necessary. Because Centralia Correctional Center is located in the judicial district for southern
Illinois, the case was transferred to this court. Upon closer inspection of Verser’s complaint, it
appears that he was actually searched at Lawrence Correctional Center, not Centralia. In any
event, Lawrence is located in the southern district of Illinois, so this court remains the proper
venue for this action.

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Although the original complaint underwent a preliminary review, Plaintiff Verser (while
incarcerated) filed a proposed amended complaint, which the Court construes as a motion for
leave to amend (Doc. 19).

In accordance with Federal Rule of Civil Procedure 15(a)(1),

Plaintiff may amend the complaint without the Court’s permission; accordingly, the motion to
amend (Doc. 19) will be granted.

The Court will now proceed with the preliminary review

required under 28 U.S.C. § 1915A.
The Court is required to dismiss any portion of the amended 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). Frivolousness is an objective standard that refers to a claim
that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th
Cir. 2000). 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 this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
The Amended Complaint
Verser generally alleges 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.
Verser has named as defendants 69 Illinois Department of Corrections employees and “Unknown

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Members of the Tactical Team Known as the Orange Crush.” 1
Relative to the July 10, 2014 search effort, Plaintiff claims some defendants conducted
the search in a humiliating manner, violated the Prison Rape Elimination Act, single-cuffed
Plaintiff behind his back despite knowing Plaintiff had a medical permit prohibiting him being
cuffed in that fashion, physically assaulted him, and ignored his medical needs.
defendants allegedly failed to intervene to prevent those actions.

Other

“All defendants” were

purportedly informed of Plaintiff’s medical permit and ignored his “serious medical needs.”
Two days after the Orange Crush search, Plaintiff was seen by Nurse Angel Rector
regarding his hypertension. At that time Plaintiff sought treatment for injuries sustained during
the search, but Nurse Rector told Plaintiff he would have to make another sick-call request in
order to have those injuries addressed.
At an unspecified time, Heather Cecil “retaliated against the Plaintiff by interfering with
his legal mail [from appointed counsel] by holding or returning it to sender.” As a result, Verser
missed the deadline for filing a motion for costs following a favorable judgment in Verser v.
Barfield, 741 F.3d 734 (7th Cir. 2013).
Plaintiff Verser seeks compensatory and punitive damages.
Discussion
The Court will begin with a preliminary note concerning the handling of Orange Crush
cases in the Southern District of Illinois.

Verser’s amended complaint 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

1

Two defendants named in the original complaint have not been named in the amended
complaint: Joseph Yurkovich and Gladyse C. Taylor. Two individuals have been added as
defendants in the amended complaint: Goins and Officer Armstrong.
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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, Verser
would likely be a member of the class. Owing to the similarities between the two cases and the
need to consolidate judicial resources, Verser’s case was transferred to the undersigned judge.
With that point out of the way, the Court will evaluate Verser’s particular claims pursuant
to 28 U.S.C. § 1915A. In his amended complaint, Verser has listed four discrete causes of
action, which are set out below. Because Verser has enumerated all of his claims, the Court will
rely on his list for the operative causes of action that Plaintiff wishes to bring in this case.
COUNT 1:

Cruel and unusual punishment was inflicted in violation of the Eighth
Amendment when:
(a) John Doe (Badge No. 13371) and an unidentified officer inflicted
unnecessary physical and emotional pain and suffering upon Plaintiff
during the strip search, shakedown;
(b) John Doe (Badge No. 13371) was deliberately indifferent to Plaintiff’s
serious medical needs;
(c) John Doe (Badge No. 13371) and other unidentified officers formed a
“nuts to butts” line up (also violating the Prison Rape Elimination Act,
42 U.S.C. § 15607);
(d) T. Conrad, S. Conrad, Justin Eckelberry, Jerry Tanner, Marcus
Jenkins, Eric Weber, Brian Livingston, Gary Perkins, Akeem
Hamilton, Kyle Brooks and Unknown Members of the Tactical Team
“Orange Crush” failed to intervene relative to how Plaintiff’s hands
were cuffed, and then they physically assaulted Plaintiff; and
(e) Investigating Officer Leak, Goins and Brad Stuck ignored Plaintiff’s
medical needs.

COUNT 2:

Steven Duncan, Michael Gilreath, Jason Zollars, Andy Stout, Dale
Monical, Ben Lewis, Brad Yonaka, Kevin W. Johnson, Janet Carle,
Officer Armstrong, Bud Brown, Stephen Sawyer, Walter McCormick,
Jerry Harper, Jason Ginder, Jeremiah Patterson, James Berry, Randy
Baylor, Bill Carrol, Lance Wise, Daniel Dust, Jarrod Carter, Timothy
McCallister, Noble Harrington, Samuel Shehorn, Jeffrey Kid, Ben
Vaughn, Travis Ochs, Robert Kamp, Anthony Senn, Trent Ralston, Maury
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Goble, Bradley Ausbrook, Seth Hough, Christopher Brant, Ethan Clary,
Matt Winka, Michael Dean, Nicholas Lampley, Dallas Willis, Christopher
Cales, James Gosnell, Alexander Lockhart, Matthew Tribble, Andrew
Gangloff, Marly Ellen Thomason, Doug Line, Jacob Milan, Zachariah
Buchanan, Andrew Volk, John Chenault Jr., Dan Mullin, Andrew Mays,
Brandon Richey, and Unknown Members of the Tactical Team “Orange
Crush” Failed to intervene when Plaintiff was physically assaulted in
violation of the Eight Amendment (see Count 1). 2
COUNT 3:

Nurse Angel Rector was deliberately indifferent to Plaintiff’s serious
medical needs in violation of the Eighth Amendment.

COUNT 4:

Heather Cecil retaliated against Plaintiff in violation of the First
Amendment when she interfered with “legal mail” from his counsel and/or
the John Marshall Law School.

COUNTS 1-3
Given the similarity between Verser’s complaint and the complaint in Ross, the fact that
the complaint in Ross was permitted through screening, and the fact that multiple motions to
dismiss are pending in Ross but not yet decided, the Court is of the opinion that Counts 1-3
cannot be dismissed at this time. Those claims will be allowed to proceed. However, the Court
stresses that the defendants are not precluded from moving to dismiss the amended complaint or
portions of it for the reasons articulated in the Ross motions to dismiss (or for any other reasons).
With respect to the Unknown Party Orange Crush officers, including the officer
identified by Badge No. 13371: these officers must be identified with particularity before service
of the amended 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.

2

Rodriguez v. Plymouth

The knowledge and involvement of all 54-plus defendants to this claim strains credulity, but at
this juncture, given the notice pleading standard, Count 2 will not be dismissed.
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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, Verser shall file a motion to substitute the named
individuals with the Unknown Party officer designations.
COUNT 4
Count 4 alleges that, at an unspecified time(s), Heather Cecil retaliated against Plaintiff
by interfering with “legal mail” sent from Plaintiff’s appointed counsel and/or John Marshall
Law School. As a result, in Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013), Plaintiff missed the
deadline for seeking costs.
Plaintiff specifically characterizes the allegations as retaliation, as opposed to
interference with Plaintiff’s right to access the Court and/or seek redress of his grievances, also
within the ambit of the First Amendment.

Because Plaintiff specifically asserts a First

Amendment retaliation claim, the Court will analyze it as such.
“An act taken in retaliation for the exercise of a constitutionally protected right violates
the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). “Otherwise permissible
actions by prison officials can become impermissible if done for retaliatory reasons.”
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). In order to state a retaliation claim, a
plaintiff must demonstrate that: “(1) his speech was constitutionally protected; (2) he has
suffered a deprivation likely to deter free speech; and (3) his speech was at least a motivating
factor” behind the retaliatory actions. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
The amended complaint does not suggest Heather Cecil’s retaliatory reason for
interfering with Plaintiff’s “legal mail. Count 4, therefore, will be dismissed without prejudice.
Again, the allegations suggest a claim related to the interference with Plaintiff’s right to access

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the Court and/or seek redress of grievances, but Plaintiff must make that decision. When
considering whether to further amend the complaint to plead a First Amendment claim, Plaintiff
should keep in mind George v. Smith, 507 F.3d 605 (7th Cir. 2007), and Federal Rule of Civil
Procedure 20.
In George, 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)). Although a party may join “as many claims as it has against an opposing party, claim A
against Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” Id. at
607. Multiple defendants can be joined in a single action, but only if: “(A) any right to relief is
asserted against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences; and (B) any question of
law or fact common to all defendants will arise in the action.” FED.R.CIV.P. 20(a)(2).

If

Plaintiff were to file a second amended complaint that added a First Amendment claim against
Heather Cecil, and the Court concluded Cecil could not be joined with the other defendants
involved in the counts pertaining to the Orange Crush incident, the First Amendment claim
would be severed into a new case and an additional filing fee would automatically be assessed.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s motion to file an amended complaint (Doc.
19) is GRANTED. The Clerk shall file the amended complaint.
IT IS FURTHER ORDERED that, with respect to the newly amended complaint,
COUNT 4 and Defendant HEATHER CECIL are DISMISSED without prejudice.

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IT IS FURTHER ORDERED that COUNTS 1-3 of the newly amended complaint shall
PROCEED.
Because Plaintiff paid the full filing fee and he has not moved for service of process at
government expense (see 28 U.S.C. § 1915(d)), Plaintiff is responsible for effecting service of
process in accordance with Federal Rule of Civil Procedure 4. Because the amended complaint
was submitted prior to December 1, 2015, Plaintiff has 120 days to effect service (effective
December 1, 2015, the period was reduced to 90 days). Plaintiff is advised that he may utilize
the waiver provision in Rule 4(d) to satisfy the service requirement. Failure to effect service
within the 120-day period may result in the dismissal of the defendant(s) or the case. Proof of
service is required under Rule 4(l).
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 Stephen C. Williams for further pre-trial proceedings.
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.
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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: December 11, 2015
s/ STACI M. YANDLE
STACI M. YANDLE
United States District Judge

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