Murithi v. Gleckler et al

Filing 75

ORDER ADOPTING 70 REPORT AND RECOMMENDATION and GRANTING 63 Defendants' Motion for Summary Judgment. This action is DISMISSED, and the Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 12/19/2018. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MWENDA MURITHI,
Plaintiff,
vs.
BRYAN GLECKLER, TERI
ANDERSON, KIMBERLY BUTLER,
JACKIE LASHBROOK, and
JEANETTE COWAN,
Defendants.

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Case No. 16-CV-152-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 70), which recommends the Court
grant Defendants’ Motion for Summary Judgment (Doc. 63). Plaintiff Mwenda Murithi
filed a timely objection to the Report and Recommendation (Doc. 74). For the reasons set
forth below, the Court overrules Murithi’s objection, adopts the Report and
Recommendation, and grants Defendants’ Motion for Summary Judgment.
BACKGROUND
Murithi, an inmate in the Illinois Department of Corrections (“IDOC”), brings this
action under 42 U.S.C. § 1983 (Doc. 1). He alleges IDOC officials violated his Eighth
Amendment rights when they failed to protect him from a violent attack by other inmates
(Doc. 1). At the times relevant to his Complaint, Murithi was incarcerated at Menard
Correctional Center (“Menard”), where his co-defendant in his criminal case, Tony
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Serrano, was also serving part of his sentence (Doc. 64-2, p. 37). Serrano was housed three
cells and three floors above Murithi (Id., p. 51). In June 2014, Serrano received a kite
(a note) telling him to sign-in to protective custody to avoid a physical attack (Id., pp. 4950). He yelled down to Murithi to share this information (Doc. 64-2, p. 50). A few
moments after their conversation, an unidentified inmate, housed above Murithi, told
Murithi to follow suit (Id., pp. 51-52). Murithi believed the threats were from a gang, in
retaliation for his and Serrano’s cooperation with law enforcement (Id., pp. 59-60).
Murithi requested placement in protective custody, writing, “Due to the facts
surrounding my case, in particular the claim that I informed to the police, I was ordered
to check into protective custody or face dire consequences in the form of bodily harm”
(Doc. 64-1). Murithi was placed in protective custody pending IDOC’s investigation of
his claims (Doc. 64-2, p. 61). A counselor at Menard ultimately recommended denying
Murithi’s request, and Warden Kimberly Butler adopted the recommendation (Doc. 641). Murithi appealed the decision, and Terri Anderson, 1 the chairperson for the
Administrative Review Board, affirmed the denial (Id.). Murithi was placed back in
general population in December 2014 (Doc. 64-2, p. 89).
Murithi testified that, a few days later, Officer Dillingham from Internal Affairs
(not a defendant) told him he had information that substantiated Murithi’s allegations of
an impending attack (Doc. 64-2, pp. 64-67). Dillingham instructed Murithi to sign in to
protective custody (Id., p. 69). Dillingham denies this conversation took place (Doc. 64-6).

The Clerk of Court is DIRECTED to correct Defendants’ names on the docket sheet as follows: Terri
Anderson for Teri Anderson and Jacqueline Lashbrook for Jackie Lashbrook.

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Murithi also testified that Defendant Jeanette Cowan, a correctional casework
supervisor, interviewed him about his concerns and said she became aware of his
situation after talking to Dillingham (Doc. 64-2, p. 74). Cowan also disputes that this
conversation took place (Doc. 64-3). Nevertheless, on December 4, 2014, Murithi was
again placed in protective custody pending an investigation (Doc. 64-2, p. 155).
After investigating, both Cowan and Dillingham were unable to substantiate
Murithi’s allegations of needing protective custody (Doc. 64-1). Murithi could not give
any Cowan any specifics except that he was threatened (Id. p. 5). Cowan offered to move
Murithi’s cell to “front street to assist with his issue,” but Murithi declined (Id.).
Furthermore, Cowan expressed concern that Murithi may be using protective custody to
get near another inmate he previously assaulted (Id.). Therefore, Cowan recommended
that Murithi’s request for protective custody be denied (Id.). Assistant Warden Jacqueline
Lashbrook and Warden Butler agreed with Cowan’s recommendation, and Murithi
returned to general population in March 2015 (Id.; Doc. 64-2, p. 155). In April 2015,
Murithi was assaulted by multiple inmates resulting in cuts on his hands, red spots on
his face, and back and shoulder pain (Doc. 64-2, pp. 99-110).
On August 1, 2018, Defendants moved for summary judgment, asserting Murithi’s
constitutional rights were not violated when he failed to give them enough information
to establish he faced a substantial risk of serious harm. Even if he had, Defendants argued,
he was provisionally placed in protective custody during the investigation of his claims.
Thus, they acted reasonably and not with deliberate indifference.

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THE REPORT AND RECOMMENDATION AND OBJECTION
On November 1, 2018, Magistrate Judge Wilkerson entered a Report and
Recommendation on Defendants’ Motion for Summary Judgment (Doc. 70). Magistrate
Judge Wilkerson concluded that Defendants are entitled to summary judgment because
Murithi’s requests for placement in protective custody did not point to a specific or
imminent threat that raised awareness of a substantial risk of serious harm (Id.).
Alternatively, Judge Wilkerson concluded that Defendants responded to Murithi’s
complaints in a reasonable manner by temporarily placing him in protective custody
until the resolution of their investigations (Doc. 70). Mr. Murithi filed a timely objection,
arguing his conversations with Dillingham and Cowan raise a genuine issue of material
fact as to whether Defendants were aware of a risk to his safety (Doc. 74).
LEGAL STANDARD
When timely objections are filed, the Court must undertake a de novo review of the
Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR
73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas
v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). This requires the Court to look at all evidence
contained in the record, give fresh consideration to those issues to which specific
objections have made, and make a decision “based on an independent review of the
evidence and arguments without giving any presumptive weight to the magistrate
judge’s conclusion.” Harper, 824 F.Supp. at 788 (citing 12 CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part));
Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). If only a “partial objection is
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made, the district judge reviews those unobjected portions for clear error.” Johnson v.
Zema Systems Corp., 170 F.3d 734,739 (7th Cir. 1999). The Court “may accept, reject or
modify the magistrate judge’s recommended decision.” Harper, 824 F. Supp. at 788.
DISCUSSION
Murithi asserts Defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment. Prison officials have a duty under the Eighth Amendment
to “take reasonable measures to guarantee the safety of the inmates . . .” Hudson v. Palmer,
468 U.S. 517, 526-27 (1984). This includes protecting inmates from violence at the hands
of other inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To establish an Eighth
Amendment claim, a plaintiff must show the prison official was deliberately indifferent
to a “substantial risk of serious harm” to the plaintiff’s safety. O’Brien v. Indiana Dep’t of
Correction ex rel. Turner, 495 F.3d 505, 508 (7th Cir. 2007). Liability exists only when a
prison official had “actual knowledge” of the risk of harm. Gevas v. McLaughlin, 798 F.3d
475, 480 (7th Cir. 2015). This is generally established if the inmate reported “a specific
threat to his safety.” Id. “Complaints that convey only a generalized, vague, or stale
concern about one’s safety typically will not support an inference that a prison official
had actual knowledge that the prisoner was in danger.” Id at 481.
Summary judgment is only appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED.
R. CIV. P. 56(a)). Once the moving party has set forth the basis for summary judgment,
the burden then shifts to the nonmoving party who must go beyond mere allegations and
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offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P.
56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 232-24 (1986).
Here, Murithi does not contest that his written requests for placement in protective
custody fail to demonstrate he faced a substantial risk of serious harm. He admits his
initial request in June 2014 did not contain enough information, (Doc. 64-2, pp. 140-41),
and his second request on December 4, 2014 did not set forth any additional information.
Moreover, Murithi does not specifically object to Judge Wilkerson’s conclusion that the
requests were deficient, and the Court finds no clear error in Judge Wilkerson’s line of
reasoning. See Johnson, 170 F.3d at 739.
Instead, Murithi asserts a genuine issue of material fact exists as to whether
Defendants were otherwise aware of a risk to his safety. Murithi testified that Cowan told
him that Dillingham told her he received credible information that members of the Latin
Folk were “waiting for” Murithi but that the situation had been averted (Doc. 64-2, pp.
67, 74-75). Construing this evidence in a light most favorable to Murithi, his testimony
does suggest that Cowan had actual knowledge of a risk to Murithi’s safety on December
4, 2014—the date he signed into protective custody.
Even if a jury found that Defendants knew of a risk to Murithi’s safety on
December 4, 2014, however, Defendants were not deliberately indifferent to that risk.
Rather, they took reasonable measures to ensure his safety. Murithi was allowed to sign
into protective custody while Cowan and Dillingham investigated his allegations. He also
could have been housed on front street, which he declined. Murithi then remained in
protective custody until the investigation and appeals process concluded in March 2015.
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The fact that Defendants ultimately denied Murithi’s request for protective
custody after completing an investigation “is not dispositive of the fact that prison
officials were therefore deliberately indifferent to [his] safety.” Boyce v. Moore, 314 F.3d
884, 891 (7th Cir. 2002) (citation omitted); Horshaw v. Casper, No. 16-3789, 2018 WL
6583432, at *2 (7th Cir. Dec. 14, 2018) (“A guard who reasonably disbelieves a prisoner’s
assertion is not liable just because it turns out to have been true.”). At most, the decision
to deny Murithi’s request for protective custody amounts to negligence, which falls short
of proving Defendants acted with deliberate indifference. See Guzman v. Sheahan, 495 F.3d
852, 857 (7th Cir. 2007) (so long as officer responded reasonably to the risk, he cannot be
said to have been deliberately indifferent, even if his response did not prevent harm from
occurring). Indeed, Cowan’s actions in investigating Murithi’s allegations separate this
case from others where prison officials may have known about threats to an inmate’s
safety and yet took no responsive action to prevent the harm. See Horshaw, 2018 WL
6583432, at *1-*2. Accordingly, Murithi’s objection is overruled.
The Court has reviewed the remaining portions of Judge Wilkerson’s Report and
Recommendation (Doc. 70) for clear error and finds none, except to note that the
undersigned expresses no opinion as to Magistrate Judge Wilkerson’s discussion of
qualified immunity, as it is not essential to the disposition of Defendants’ motion.
CONCLUSION
For these reasons, Plaintiff Mwenda Murithi’s Objection to Magistrate Judge
Wilkerson’s Report and Recommendation (Doc. 74) is OVERRULED, and the Court
ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation (Doc. 70). The
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Motion for Summary Judgment filed by Defendants is GRANTED (Doc. 63). This action
is DISMISSED, and the Clerk is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: December 19, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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