English, Jr et al v. Butler et al

Filing 15

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 11/8/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARIO S. ENGLISH, JR., # B-57430,
Plaintiff,
vs.
KIMBERLY BUTLER, and
MONICA NIPPE,

Defendants.

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Case No. 16-cv-0395-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Mario S. English, Jr. (“English”), an inmate currently incarcerated at Menard
Correctional Center (“Menard”), brings this pro se civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff English alleges that his rights have been violated by Menard staff members who
have hindered his access to the Courts.1 He further alleges that Menard is at fault for failing to
respond to grievances about the same. In connection with his claims, English names Warden
Kimberly Butler and counselor Monica Nippe. English seeks monetary compensation and
injunctive relief.
The First Amended Complaint is now before the Court for review. The Court’s May 13,
2016 Order informed English that the First Amended Complaint would entirely supersede his
previous filings, and that it would not be accepted in a piecemeal fashion. Accordingly, this

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English initially filed his suit as a class action, naming five plaintiffs in addition to him. In its initial dismissal of
the Complaint, the Court notified all named Plaintiffs that they would need to opt-in or opt-out of the suit
(Doc. 7 at 6). Two of the Plaintiffs followed this directive, but three did not. However, English filed a
document disavowing the intent to pursue the action as a class action (Doc. 12 at 2-3). In light of English’s
filing, and because the Court’s docket does not contain addresses for the three who failed to opt-out, the
Court will consider those three Plaintiffs dismissed without consequence.

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review only considers the First Amended Complaint and the exhibits appended to that document
(Doc. 9). English’s additional “response” filings (Docs. 12 and 13) are construed as motions and
will be addressed in the pending motions section of this Memorandum and Order.
Background
English alleges that he experienced difficulty sending legal mail at Menard when
Defendant Monica Nippe refused to give him an adequate supply of money vouchers to mail his
legal correspondence (Doc. 9 at 40-44). English claims that as a result of Nippe’s intentional
refusal, he missed multiple court deadlines (Id.). In an exhibit appended to his Amended
Complaint, English claims that he suffered harm as a result of Nippe’s actions in two court
cases--#3-14-0161 and #4-14-0256 (presumably state court cases) (Id. at 23). He insists that in
each instance, he was unable to file timely petitions for writs of certiorari due to the denial of
money vouchers (Id.). English also appended shorthand notes made by Nippe documenting her
visits to the cell house in October, November and December of 2015 at which times she noted
English’s requests for money vouchers (Id. at 36-38). The notes suggest that money vouchers
were sent each time, though they do not contain any specific proof of when or how money
vouchers were sent (Id.). A handwritten letter from English also purports to bear a handwritten
response by Nippe on or around January 20, 2016, wherein she indicated that she had directed
the provision of money vouchers (Id. at 20).
English asserts that he grieved Nippe’s actions to no avail (Id. at 40). Specifically,
English claims that he submitted a grievance to Warden Kimberly Butler, but that she did not
respond (Id.). English argues that Nippe and Butler’s actions are indicative of deliberate
indifference and a denial of access to the courts (Id. at 40-45). English seeks monetary damages,
and injunctive relief in the form of a transfer to Stateville or Pontiac, a directive to Menard

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requiring the facility to always provide inmates with money vouchers, a copy of his disciplinary
card and all of his incoming and outgoing mail (Id. at 45-47).
Discussion
Based on the allegations, the Court finds it convenient to divide the pro se Complaint into
the following enumerated claims. 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. The
designation of these counts does not constitute an opinion regarding their merit.
Count 1:

Denial of access to the courts claim against Butler and Nippe for
failing to provide English with a sufficient number of money
vouchers to mail his legal correspondence; and,

Count 2:

Fourteenth Amendment claim for failure to respond to English’s
grievances regarding the shortage of money vouchers for legal
mail.

As discussed below, Count 1 will be allowed to proceed beyond screening solely as to
Defendant Nippe; Count 1 will be dismissed without prejudice as it pertains to Defendant Butler.
Further, Count 2 shall be dismissed with prejudice for failure to state a claim.
Count 1
The Seventh Circuit has held that prisoners must receive “that quantum of access to
prison libraries [and materials]—not total or unlimited access—which will enable them to
research the law and determine what facts may be necessary to state a cause of action.” See
Gentry v. Duckworth, 65 F.3d 555, 558 (7th Cir. 1995) (quoting Hossman v. Spradlin, 812 F.2d
1019, 1021 (7th Cir. 1987). Materials necessary include “paper, some means of writing, staplers,
access to notary services where required by procedural rules, and mailing materials.” Id.
However, access need not be limitless. The two-part test to determine if an inmate has a claim
for denial of access to the courts requires a showing that (1) prison officials failed to assist in the

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preparation and filing of meaningful legal materials, and (2) that the failure led to some quantum
of detriment such as an interruption and/or delay of the inmate’s pending or contemplated
litigation. Id. The denial of materials can satisfy the first prong of the test, while the second
prong can be satisfied by showing “real prejudice.” Id. at 558-59. An inmate need not show that
he definitely would have won the underlying claim that he was hindered in bringing, rather, he
need only show that he was denied “the right to rise to the level of being a failure.” Id. at 559.
To state a claim for denial of access to the courts, a plaintiff must explain “the connection
between the alleged denial of access to legal materials and an inability to pursue a legitimate
challenge to a conviction, sentence, or prison conditions,” Ortiz v. Downey, 561 F.3d 664, 671
(7th Cir. 2009) (internal quotation and citation omitted); accord Guajardo Palma v. Martinson,
622 F.3d 801, 805-06 (7th Cir. 2010). This requires Plaintiff to identify a non-frivolous
underlying claim that was lost. See Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009);
Christopher v. Harbury, 536 U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir.
2007). The nature of the underlying loss may influence the remedy available to the plaintiff
because the Seventh Circuit has held that a plaintiff may only recover injunctive relief if the loss
of the underlying claim deprived the inmate of compensation.
Here, English has made sufficient factual allegations for his access to courts claim in
order to proceed against Defendant Nippe because he specifically alleges that she denied him
needed money vouchers for postage. He claims that as a result, he was denied access to the
courts because he was time-barred from filing two petitions for certiorari. By contrast, his claim
will not be allowed to proceed against Warden Butler because he does not specifically link her
conduct to a denial of his access to the courts.

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Count 2
Prison grievance procedures are not constitutionally mandated and thus do not implicate
the Due Process Clause per se. As such, the alleged mishandling of grievances “by persons who
otherwise did not cause or participate in the underlying conduct states no claim.” Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Put differently, the fact that Defendants may have
ignored Plaintiff’s grievances does not give rise to a due process claim against them. English
only alleges that he submitted a grievance to Defendant Butler, so this claim is only considered
as to Butler. However, English has failed to state a claim because there is no independent due
process right in the grievance system, and he has not alleged that Butler personally participated
in denying him money vouchers. Though he alleges that he made Butler aware of his need for
vouchers, in no way does he confirm that she received that message or that she was a part of the
initial refusal of vouchers. Accordingly, he has not stated sufficient facts to give rise to liability
on Butler’s behalf.
Pending Motions
English filed two documents (Docs. 12, 13) that appear to serve the same purpose, to
request dismissal of the co-plaintiffs named in his Original Complaint. As was discussed in
footnote one, the Court hereby GRANTS English’s request to dismiss the five named coPlaintiffs.
The Court also notes receipt of Donald Hardy (Doc. 11), and David Gehret’s (Doc. 10)
Motions to Dismiss themselves from the action. Their requests are hereby GRANTED and they
shall incur no filing fees, as was contemplated by this Court’s Order (Doc. 7)
English also filed a document seeking a status update (Doc. 14). As of the issuance of this
Order the Court deems that document MOOT.

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Plaintiff also makes a request for injunctive relief in the form of a text order directing the
prison to provide him with adequate materials to pursue his legal matters. The Court has already
addressed this request as it pertains to an emergency or temporary restraining order, and it has
DENIED this request (S.D. Ill., CM/ECF Case no. 16-cv-00395-SMY, dkt. entry 6). The Court
will stand by that ruling absent a properly filed motion proffering further grounds for the
issuance of emergency injunctive relief.
As for Plaintiff’s pending Motions for Recruitment of Counsel (Docs. 3, 8), these
motions will be referred to a Magistrate Judge for disposition.
Disposition
For the reasons set forth above, COUNT 1 is DISMISSED without prejudice as to
DEFENDANT BUTLER, and COUNT 2 is DISMISSED without prejudice as to
DEFENDANT BUTLER.
The Clerk of the Court is directed to TERMINATE PLAINTIFFS DONALD HARDY,
SUAVE JOHNSON, FNU McCOY, DAVID GEHRET, AND FNU BLACKMAN from this
action without consequence.
IT IS HEREBY ORDERED that the Complaint shall proceed as to COUNT 1 against
DEFENDANT NIPPE. With respect to COUNT 1, the Clerk of Court shall prepare for
DEFENDANT NIPPE: (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 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

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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 Reona J. Daly for further pre-trial proceedings, including a decision on
Plaintiff’s Motions for Recruitment of Counsel (Docs. 3, 8). Further, this entire matter shall be
REFERRED to United States Magistrate Judge Daly 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 the fact

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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).
IT IS SO ORDERED.
DATED: November 8, 2016

s/ STACI M. YANDLE
United States District Judge

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