Murithi v. Gleckler et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 3/2/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MWENDA MURITHI #M-04215,

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Plaintiff,
vs.
BRYAN GLECKLER,
TERI ANDERSON,
KIMBERLY BUTLER,
JACKIE LASHBROOK,
and JEANETTE COWAN,
Defendants.

Case No. 16-cv-00152-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff

Mwenda

Murithi,

an

inmate

who

is

currently

incarcerated

at

Pontiac Correctional Center (“Pontiac”), brings this action pursuant to 42 U.S.C. § 1983 against
five officials in the Illinois Department of Corrections (“IDOC”) who denied his requests for
protective custody at Menard Correctional Center (“Menard”) in 2014-15. (Doc. 1). Plaintiff
claims that he was viciously attacked by a group of inmates on April 4, 2015, after two of his
requests were denied. (Id. at 8-16). The prison officials who denied the requests were aware of
specific threats of physical harm to Plaintiff posed by members of the Latin Folks Gang.
Plaintiff now sues these officials for failing to protect him from the attack.
The defendants include Bryan Gleckler (IDOC Director), Teri Anderson (Administrative Review
Board (“ARB”) Chairperson), Kimberly Butler (Menard’s Chief Administrative Officer),
Jackie Lashbrook (Menard’s Assistant Warden), and Jeanette Cowan (Menard’s counselor).
Plaintiff seeks declaratory judgment, monetary damages, and a change in prison policies
governing protective placement. (Id. at 20).
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This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under Section 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 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).
The Complaint
According to the complaint, Plaintiff was attacked by a group of inmates at Menard on
April 4, 2015. (Doc. 1 at 8-16). The inmate attack occurred after two of Plaintiff’s requests for
protective custody were denied. He claims that the attack, and his resulting injuries, could have
been avoided, if prison officials had granted his requests for protective placement in June and
December 2014. Because they did not, he sustained injuries in the attack that still cause pain and
suffering. (Id. at 10).
Plaintiff submitted his first request for protective custody on June 4, 2014, after an inmate
on the upper gallery of Menard’s West Cell House threatened him with physical harm if he did
not enter protective custody. (Id. at 8). Plaintiff reported the threat to Internal Affairs Officer
Dillingham the same day. Plaintiff told Officer Dillingham that the other inmates had dubbed
him a “snitch,” and the threat probably came from a member or affiliate of the Latin Folks
Gang.1 (Id.).
Plaintiff’s first request for protective custody was denied on June 24, 2014. He appealed
the decision the same day. On October 27, 2014, the ARB heard his appeal, and Chairperson
Anderson denied the appeal the following month. He was sent back to Menard’s West Cell
House on December 1, 2014.
1

Plaintiff alleges that he was believed to be a member of this gang as well.
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On December 4, 2014, Officer Dillingham pulled Plaintiff from his cell for another
interview. During the interview, the officer informed Plaintiff that members of the Latin Folks
Gang planned to attack him. The officer allegedly received this information from a confidential,
credible source. According to that source, the plan was to attack Plaintiff while he was stepping
out of his cell for the day or running back into his cell. When Officer Dillingham offered
Plaintiff the option of signing up for protective custody, he agreed to do so, but he was unable to
complete the paperwork that day.
On December 8, 2014, Chairperson Cowan also interviewed Plaintiff again.
She explained that Officer Dillingham had already explained the entire situation to her.
Rather than offering Plaintiff protective custody, however, she asked Plaintiff if he would be
willing to accept placement in the front street cell house. Plaintiff rejected this offer, after
pointing out that Latin Folk Gang members were housed there. Plaintiff also pointed out that
Officer Dillingham encouraged him to seek protective placement.
Plaintiff’s second request for protective custody was denied on December 15, 2014.
He appealed the decision, but it, too, was denied because of Plaintiff’s “failure to provide
additional information.” (Id. at 10). Plaintiff was sent back to Menard’s East Cell House on
March 19, 2015. The cell house was on lockdown until April 4, 2015.
While returning from lunch on April 4, 2015, Plaintiff was viciously attacked by several
individuals as he stood in front of his cell waiting for the locks to open. Although the attack
lasted several minutes, no officers were in the area. Left to defend himself, Plaintiff threw
“blind” punches as the other inmates punched him in the face and back. An officer eventually
appeared after most of the attackers left and cited Plaintiff for fighting. (Id. at 11).

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Plaintiff was taken to the health care unit for treatment of his injuries. There, he
explained the entire situation to Officer Hoff, who told Plaintiff that he would look into the
matter. Plaintiff never heard back from Officer Hoff.
Plaintiff was found guilty of fighting and sent to segregation for thirty days. While there,
he filed an emergency grievance with the warden. He informed the warden that he was scheduled
for release from segregation on the same date as one of his attackers. He asked that the two
inmates remain separated. (Id.).
Despite his efforts, Plaintiff was not only released from segregation on the same date as
one of his attackers, but he was also placed in the same holding cell with him.
Plaintiff immediately brought this to the attention of a nearby officer, who separated the two
inmates before Plaintiff was attacked again. (Id.).
Plaintiff submitted a third request for protective custody the day he was released from
segregation. He was interviewed a third time. During the interview, Defendant Cowan explained
that Officer Hoff had already provided her with a preliminary account. His third request for
protective custody was granted on May 6, 2015.
Plaintiff maintains that he should have been placed in protective custody before he was
attacked. He further claims that IDOC officials have a policy, custom, or practice of denying
requests for protective custody submitted by prisoners who are believed to be gang members,
unless they snitch on other gang members or have already been attacked. (Id. at 13-14). Pursuant
to this policy, Plaintiff was denied protection until after his attacked. As a result, he sustained
injuries, including a back injury, that continues to cause him pain and suffering.
Plaintiff now sues Defendants Cowan, Lashbrook, Butler, Anderson, and Gleckler for
failing to protect him from the inmate attack that occurred on April 4, 2015. (Id. at 12-15).

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He blames all five of these officials for the attack. He claims that each defendant knew of and
disregarded specific threats to Plaintiff’s safety when they made the decision to deny his June
and December 2014 requests. Plaintiff sues the defendants in their individual and official
capacities. He seeks declaratory judgment, monetary damages, and a change in the policies
governing protective placement. (Id. at 20).
Merits Review Under 28 U.S.C. § 1915A
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 deems it appropriate to organize the claim in Plaintiff’s pro se complaint into the
following count:
Count 1:

Defendants failed to protect Plaintiff from a known risk of
harm, in violation of the Eighth Amendment, when they denied
his requests for protective custody in June and December 2014.

The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of this count does not
constitute an opinion as to its merit.
Discussion
The Supreme Court has long held that “prison officials have a duty . . . to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833
(1994) (internal citations omitted); Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006).
However, not every harm caused by another inmate translates into constitutional liability for the
corrections officers responsible for the prisoner’s safety. Farmer, 511 U.S. at 834. In order to
state a failure to protect claim, a plaintiff must show that he is incarcerated under conditions
posing a substantial risk of serious harm, and that the defendants acted with “deliberate

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indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must prove that
prison officials were aware of a specific, impending and substantial threat to his safety, often by
showing that he complained to prison officials about a specific threat to his safety. Pope v.
Shafer, 86 F.3d 90, 92 (7th Cir. 1996).
Under § 1983, a state official may be held liable if he “caused or participated in a
constitutional deprivation.” Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994)
(citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)); see also Pepper v. Village of
Oak Park, 430 F.3d 809, 810 (7th Cir. 2005). The official “must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye. . . .” Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995) (citations omitted). However, a prison official who rules “against a prisoner
on an administrative complaint does not cause or contribute to the violation. A guard who stands
and watches while another guard beats a prisoner violates the Constitution; a guard who rejects
an administrative complaint about a completed act of misconduct does not.” George v. Smith,
507 F.3d 605, 609-610 (7th Cir. 2007) (emphasis added).
In his complaint, Plaintiff claims that the defendants denied two requests for protective
custody that predated his attack on April 4, 2015. He submitted the second request for protective
placement, at the behest of a prison official who warned him that he was the target of a planned
inmate attack. But because the defendants have a policy, practice, or custom of denying requests
by inmates with gang affiliations until they snitch on other gang members or are actually
attacked, Plaintiff’s requests for protective custody were denied until the latter occurred.
Whether Defendants Cowan, Lashbrook, Butler, Anderson, and Gleckler actually responded to
Plaintiff’s pleas for protective custody with deliberate indifference remains to be determined.

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For now, however, the Court cannot dismiss Count 1 against these defendants. Accordingly,
Count 1 shall proceed against Defendants Cowan, Lashbrook, Butler, Anderson, and Gleckler.
On a closing note, the Court noticed that Plaintiff mentioned a disciplinary ticket,
punishment with segregation, and injuries from his attack. Plaintiff did not assert any claims
against the defendants on the basis of these allegations. Given this, the allegations provided
useful background information and nothing more. In addition, Plaintiff mentioned a denial of
equal protection in the complaint, but this reference to a legal claim was unsupported by any
factual allegations. This lawsuit therefore addresses a single Eighth Amendment failure to
protect claim. All other claims are considered dismissed without prejudice.
Pending Motions
1.

IFP Motion (Doc. 2)
Plaintiff filed a motion for leave to proceed in forma pauperis, and the motion shall be

addressed in a separate Order.
2.

Motion for Service of Process at Government Expense (Doc. 3)
Plaintiff also filed a motion for service of process at government expense, which is

GRANTED. Service shall be ordered on all of the defendants in the below disposition.
3.

Motion for Recruitment of Counsel (Doc. 6)
Plaintiff filed a motion for recruitment of counsel, which shall be referred to

United States Magistrate Judge Donald G. Wilkerson for a decision.
Disposition
IT IS ORDERED that with regard to COUNT 1, the Clerk shall prepare for Defendants
GLECKLER, ANDERSON, BUTLER, LASHBROOK, and COWAN: (1) Form 5 (Notice of
a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of

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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).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, including a decision on the motion
for recruitment of counsel (Doc. 6), pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if

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all parties consent to such a referral. Further, this entire matter shall be REFERRED to United
States Magistrate Judge Wilkerson 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, regardless of whether
his application to proceed in forma pauperis is 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).
IT IS SO ORDERED.
DATED: March 2, 2016

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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