Hallstrom v. DuQoin County IIP et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 3/1/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KERRY J. HALLSTROM,
No. M46309,
Plaintiff,
vs.
DU QUOIN IIP, and
UNKNOWN PARTIES,
Defendants.

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Case No. 16-cv-00107-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Kerry J. Hallstrom is an inmate currently housed at Big Muddy River
Correctional Center.

Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for

deprivations of his constitutional rights with respect to an assault that occurred while
he was housed at the Du Quoin Impact Incarceration Program (“Du Quoin IIP”).
DuQuoin IIP is a boot camp operated by the Illinois Department of Corrections;
successful completion of the program can lead to a reduction of sentence.

See

http://www.illinois.gov/idoc/facilities/Pages/duquoinIIP.aspx.
This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A. The Court is required to 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).

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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 Complaint
According to the complaint, while at Du Quoin IIP in 2014, Plaintiff Hallstrom
was “assaulted by John Doe 2nd shift.” The unidentified officer walked by several
inmates, including Plaintiff, and “[hit] their heads off the wall.” As a result, Plaintiff’s
head was “busted” and his lip was split.”
The day after the assault, an inmate told an officer what had happened. An
investigation ensued. The inmates involved were held in segregation for 3-4 days and
then sent to Dixon Springs IIP, which is another boot camp. Staff at Dixon Springs
retaliated (in unspecified ways) against the “Du Quoin Boys that lie on the Police.”
“I.A.” (Internal Affairs) “from Springfield” continued to investigate, threatening
segregation if the truth was not told, but the “story stayed the same.”

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The named defendants are “Du Quoin County IIP,” and “John Doe(s) staff and
I.A.”—further described as “Staff of Du Quoin IIP/Correctional/Officers,” with their
address listed as the Illinois Department of Corrections in Springfield, Illinois. Plaintiff
seeks monetary damages from all defendants.
Based on the allegations in the complaint, the Court finds it convenient to divide
the pro se action into the following counts. 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: “John Doe 2nd shift” at Du Quoin IIP used excessive force
against Plaintiff, in violation of the Eighth Amendment;
Count 2: “John Doe” Dixon Springs IIP staff members retaliated
against Plaintiff, in violation of the First Amendment; and
Count 3: “John Doe” IDOC Internal Affairs Officers threatened
Plaintiff with segregation if he did not tell the truth.
Discussion
Count 1
The Eighth Amendment to the United States Constitution protects prisoners
from being subjected to cruel and unusual punishment. U.S. CONST., amend. VIII. See
also Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010). The intentional use of excessive
force by prison guards against an inmate without penological justification constitutes
cruel and unusual punishment. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt v.
Carter, 224 F.3d 607, 619 (7th Cir. 2000).

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The allegations in the complaint regarding “John Doe 2nd shift” walking by
Plaintiff and, with no apparent provocation, hitting his head off the wall with sufficient
force to cause injuries, is sufficient to state an Eighth Amendment claim. Therefore,
Count 1 will proceed against Du Quoin IIP staff member “John Doe 2nd shift.”
Count 2
Count 2 pertains to the allegation that unidentified “John Doe” Dixon Springs IIP
staff members retaliated against Plaintiff.

Reading the compliant as a whole, it is

implied that the retaliation was for Plaintiff and others reporting the assault.
“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). In order to
state a First Amendment retaliation, 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); see also Woodruff v. Mason,
542 F.3d 545, 551 (7th Cir. 2008).
Even assuming Plaintiff was engaged in protected activity when speaking with
Du Quoin officials about the assault, the complaint offers nothing more than an
assertion that Dixon Springs IIP staff retaliated against him. No details are offered;
therefore, the Twombly pleading threshold is not satisfied. As pleaded, Count 2 fails to
state a First Amendment claim and will be dismissed without prejudice. Consequently,
the unidentified “John Doe” staff at Dixon Springs IIP are dismissed as defendants.

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Count 3
The complaint describes “John Doe” IDOC Internal Affairs officers threatening
Plaintiff with segregation if he did not tell the truth. That bare allegation does not
appear to state a constitutional violation.

The “threat” is not characterized as

retaliation. Whether a “threat” was even made is debatable.

Not telling the truth

during an investigation is certainly punishable, so what Plaintiff characterizes as a
“threat” could also be merely a “warning” of the prescribed consequences for lying.
Count 3 and the unidentified Internal Affairs officers will be dismissed without
prejudice.
Identification of “John Doe 2nd shift” & Motion for Counsel
Count 1 is proceeding against “John Doe 2nd shift,” but how to effect service of
process upon the unknown individual begs the question of whether Plaintiff can
proceed pro se. Childress v. Walker,787 F.3d 433, 443 (7th Cir. 2015). Plaintiff has moved
for recruitment of counsel (Doc. 3).

He cites his relative poverty, his high school

education, and lack of legal training.
There is no constitutional or statutory right to counsel in federal civil cases.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d
1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C.
§ 1915(e)(1) to recruit counsel for an indigent litigant. Ray v. Wexford Health Sources, Inc.,
706 F.3d 864, 866–67 (7th Cir. 2013). As members of the legal profession and officers of
the court, lawyers have an ethical obligation to indigent litigants seeking justice.

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See

Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). In accordance with Pruitt and Local
Rule 83.1, members of the district court bar have a duty to accept pro bono assignments.
When a pro se litigant submits a request for counsel, the Court must first
consider whether the indigent plaintiff has made reasonable attempts to secure counsel
on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt, 503 F.3d at
654). If so, the Court must examine “whether the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to coherently present
it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question ... is
whether the plaintiff appears competent to litigate his own claims, given their degree of
difficulty, and this includes the tasks that normally attend litigation: evidence
gathering, preparing and responding to motions and other court filings, and trial.”
Pruitt, 503 F.3d at 655. As the Seventh Circuit recently emphasized, the inquiry is a
practical one, and judges abuse their discretion when they fail to consider the growing
complexities as a case progresses from the pleading stage, to discovery, dispositive
motions and trial. Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015); Childress v. Walker, 787
F.3d 433, 443 (7th Cir. 2015); Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015).
Plaintiff’s motion for counsel fails because he has not indicated that he has made
any effort to secure counsel, but that does not end the analysis. The Court recognizes
that Plaintiff is no longer at Du Quoin IIP, which adds to the difficulty of discovering
the identity of “John Doe 2nd shift.” However, that predicament is not unusual.
Where a prisoner’s complaint states specific allegations describing conduct of
individual prison staff members sufficient to raise a constitutional claim, but the names
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of those defendants are not known, the prisoner should have the opportunity to engage
in limited discovery to ascertain the identity of those defendants. Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009).

“Depending on the particular

circumstances of the case, the court may assist the plaintiff by providing counsel for the
limited purpose of amending the complaint; by ordering the named defendants to
disclose the identities of unnamed officials involved; by allowing the case to proceed to
discovery against high-level administrators with the expectation that they will identify
the officials personally responsible; by dismissing the complaint without prejudice and
providing a list of defects in the complaint; by ordering service on all officers who were
on duty during the incident in question; or by some other means.” Donald v. Cook
County Sheriff's Dept., 95 F.3d 548, 556 (7th Cir. 1996).
Under the circumstances presented, the Court finds that Du Quoin IIP’s
superintendent, Jason Henton (or whoever holds that office at the moment), is best
suited to respond to discovery aimed at identifying “John Doe 2nd shift.”

It is

reasonable to believe that individual is identified in incident reports or investigative
materials available to the superintendent. Accordingly, the Clerk will be direct to add
Superintendent Henton as a defendant, in his official capacity only. See FED. R. CIV. P.
21; FED. R. CIV. P. 17(d). Once the name of “John Doe 2nd shift” is discovered, Plaintiff
shall (1) file an amended complaint naming that person in the case caption and
throughout the pleading, and (2) request dismissal of the superintendent as a
defendant.

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Plaintiff’s motion for counsel (Doc. 3) will be denied without prejudice. Because
Plaintiff has been granted pauper status (Doc. 6), his motion for service of process at
government expense (Doc. 4) will be denied as moot. The Court will order service of
process upon Superintendent Henton.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Counts 2 and 3, and any
and all unknown defendants, except “John Doe 2nd shift,” are DISMISSED without
prejudice.
IT IS FURTHER ORDERED that COUNT 1 shall otherwise PROCEED against
Defendant “John Doe 2nd shift” in his individual capacity.
IT IS FURTHER ORDERED that the Clerk shall ADD DU QUOIN IIP
SUPERINTENDENT JASON HENTON (or his successor in office) as a defendant in
his official capacity, only for the sole purpose of responding to discovery aimed at
identifying the unknown defendant, “John Doe 2nd shift.”
IT IS FURTHER ORDERED that Plaintiff’s motion for counsel (Doc. 3) is
DENIED without prejudice and Plaintiff’s motion for service of process at government
process (Doc. 4) is DENIED as moot.
The

Clerk

of

Court

shall

prepare

for

Defendant

DU

SUPERINTENDENT JASON HENTON (or his successor in office):

QUOIN

IIP

(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 Defendant’s place of
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employment: Du Quoin IIP, 275 Agriland Acres Dr., Du Quoin, IL 62832.
Service shall not be made on the unknown “John Doe” defendant until such time
as Plaintiff has identified him by name in a properly filed amended complaint. Plaintiff
is ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and
service addresses for this individual.
If Defendant Henton or his successor in office 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 Defendant,
and the Court will require Defendant to pay the full costs of formal service, to the extent
authorized by the Federal Rules of Civil Procedure.
Plaintiff shall serve upon Defendant (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 Defendant 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.
Although Defendant Henton is only in this case in his official capacity for
purposes of discovery aimed at identifying “John Doe 2nd shift,” Henton (or his
successor in office) is 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), thus
ensuring that he has properly entered his appearance in this action.
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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, and to manage
discovery directed to Defendant Henton and aimed at securing the identity of “John
Doe 2nd shift.”
Further, this entire matter shall be REFERRED to a United States Magistrate 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,
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
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may result in dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: March 1, 2016
s/ Michael J. Reagan
MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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