Lisle, Jr. v. Butler et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 5/26/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN D. LISLE, JR.,
# R-40159,
Plaintiff,
vs.
KIMBERLY BUTLER, DUNBAR,
HOFF, KENTE BROOKMAN,
J. DIERCKS, SGT. HARRIS,
MAJOR DUN, LASHBROOK,
SGT. MURRAY, LT. BEST,
LAMINAK, JOHN/JANE DOES,
LORI OAKLEY, LT. EOVAIDI,
MISSTY THOMPSON, and
T.S. KEEN,
Defendants.

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Case No. 16-cv-00421-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff Steven Lisle, Jr., currently incarcerated at Pontiac Correctional Center
(“Pontiac”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
The matter is now before the Court for review of Plaintiff’s complaint. (Doc. 1). Under
§ 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).
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). An action fails to state a claim upon which relief

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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. Conversely, a
complaint is plausible on its face “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual
allegations as true, some factual allegations may be so sketchy or implausible that they fail to
provide sufficient notice of a plaintiff’s claim. Smith v. Peters, 631 F.3d 418, 419 (7th Cir.
2011); Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not
accept as adequate abstract recitations of the elements of a cause of action or conclusory legal
statements.” Id. At the same time, however, the factual allegations of a pro se complaint are to be
liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
2009).
The Complaint
The events giving rise to this action occurred while Plaintiff was incarcerated at Menard
Correctional Center (“Menard”).

In November 2014, Defendants Dunbar and Harris,

correctional officers at Menard, approached Plaintiff and told him if he continued “to bitch and
complain and file grievances” that they would make his stay at Menard “hell.” (Doc. 1, p. 3).
Plaintiff had previously filed grievances complaining about the grievance procedure process and
racial discrimination against African-Americans at Menard. Id. Around that time, Plaintiff sent
a letter to the John Howard Association, a legal organization, regarding issues he was
experiencing at Menard. Soon after, Defendants Eovaidi, Harris, Laminak, and Dunbar talked to
Plaintiff about his correspondence with the John Howard Association and threatened to kill him

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if he did not stop writing grievances and complaining to others about Menard. Id. at 3-4.
Defendant Harris then told Plaintiff that he had connections with the Bureau of Identification
(“Bureau”) and that he could “put a cold case” on him. Id. at 4.
On December 26, 2014, Plaintiff was called to the Bureau. Defendant Diercks, an officer
working for the Bureau, told Plaintiff that he needed him to provide a DNA profile.

Id.

Recalling what Defendant Harris had recently threatened, Plaintiff asked Defendant Diercks why
that was necessary since Plaintiff had already provided a DNA sample pursuant to an order
entered at his sentencing in 2004. Id. When Plaintiff asked to see a search warrant or document
from the Illinois State Police verifying that he needed to submit another DNA sample, Defendant
Diercks responded that he could take Plaintiff’s DNA profile “whenever or however” he wanted
to and that as a convicted felon, Plaintiff was a ward of the state, which meant that he was state
property. Id. at 5. Defendant Diercks then called in Defendant Dun, who told Plaintiff that he
could not refuse a DNA test. Id. Plaintiff asked Defendant Dun to provide some documentation
to prove that the order came from the Illinois State Police. Id. Defendant Dun told Plaintiff that
he did not have to provide any documentation that a second test was required and demanded that
Plaintiff submit to the test.

Plaintiff continued to refuse to provide a sample absent

documentation that the request was legitimate, and finally Defendant Dun ordered Plaintiff to be
taken to segregation for refusing to provide a DNA sample. Id. When Plaintiff protested that
Defendant Dun was violating his constitutional rights, Defendant Dun told him to “shut the fuck
up” and “fuck your rights.” Id. at 5-6. Plaintiff was then escorted to the North II segregation
unit.
Later that evening while in segregation, Plaintiff stopped Defendant Laminak, who was
working the unit. Defendant Laminak also happened to be one of the correctional officers who

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had previously threatened to harm Plaintiff if he continued to file grievances. Plaintiff asked to
see a crisis counselor and informed Laminak that he was going to kill himself because Menard
employees were trying to put a criminal case on him. Id. at 6. Laminak told Plaintiff that he was
not going to help him out because Plaintiff had dug himself into a hole by filing grievances. Id.
A little later, when a nurse was making her rounds, Plaintiff stopped her and told her that he was
planning to kill himself. The nurse told Defendant Laminak that she was going to have to report
that Plaintiff had threatened to kill himself. Id. Defendant Laminak then called Defendant
Harris, who came to Plaintiff’s cell and threatened “to put some paperwork” on Plaintiff. Id.
Defendants Laminak and Harris then took Plaintiff to the healthcare unit, stripped him naked,
placed him in a crisis cell, and turned off the water supply to the cell for an unspecified period of
time. Id.
Plaintiff was issued two disciplinary tickets as a result of the events that occurred on
December 26, 2014. In the first ticket, Plaintiff was charged with disobeying a direct order and
violating state law by refusing to provide a DNA sample. (See Ex. 16). In the second ticket,
Plaintiff was charged with damaging property, insolence, and disobeying a direct order. (See Ex.
2). As to the second ticket, Defendants Laminak and Harris claimed that Plaintiff had torn up his
mattress while he was in segregation prior to his request to be placed on crisis watch. (Doc. 1, p.
7). Plaintiff insists that the second ticket was completely fabricated by Defendants Laminak and
Harris in order to retaliate against him for requesting to be placed on suicide watch. Id.
A few days later, Plaintiff appeared before the adjustment hearing committee on both
tickets. Id. Plaintiff pled not guilty to the first ticket and explained to Defendant Brookman,
chair of the committee, why he had refused to provide a DNA sample. Plaintiff asserts that
Defendant Brookman verbally agreed with Plaintiff and told him that he was going to dismiss the

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ticket. Id. But according to the final summary report of the hearing, Plaintiff was found not
guilty of disobeying a direct order, but guilty of violating state law, even though the decision
notes that Plaintiff did provide a DNA sample in 2004 and makes no mention of the test being
inadequate. (See Ex. 16). Plaintiff’s punishment on this ticket was a “verbal reprimand.” Id.
On the second ticket, Plaintiff pled not guilty to the charges of destroying property,
insolence, and disobeying a direct order. (Doc. 1, p. 7). He told the committee that charges were
fabricated and the ticket was issued in retaliation for Plaintiff requesting to be placed on suicide
watch. Plaintiff asked to call the nurse who was present at the time of the incident and explained
that because he did not have access to a pen prior to the hearing, he had been unable to put his
request to call a witness in writing. Id. Defendant Brookman refused to call Plaintiff’s witness
and told Plaintiff that he would not send Plaintiff to segregation if he would pay $55.00 to
replace the mattress. Id. Plaintiff insisted that he had not done any damage to the mattress, said
he would not pay for the mattress, and again requested the opportunity to call a witness who he
said could testify in support of his claim. Id. at 8. Defendant Brookman refused Plaintiff’s
request and ordered that Plaintiff be given 60 days in segregation. Id.
In January 2015, while Plaintiff was in segregation on suicide watch, Defendants
Lashbrook (assistant warden), Eovaidi, and Murray approached Plaintiff and threatened that if he
did not give up a DNA sample that they would send the Orange Crush team in to take it by
physical force and “beat his ass.” Id. Plaintiff protested and asserted that he had just had a
disciplinary hearing on the issue and the committee had found that he had, in fact, provided a
DNA sample in 2004. Plaintiff claims that Defendant Lashbrook said, “I don’t give a fuck what
the adjustment committee said I want your DNA and I’m going to get it from you one way or the
other.” Id. at 8-9. At some later date in January, Defendant Lashbrook returned to Plaintiff’s

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cell with Defendants Dunbar and Best. They removed Plaintiff from his cell and took him to an
unknown location in the North II housing unit where they were met by members of the Orange
Crush tactical team and Defendant Diercks. Id. at 8. Defendants then began assaulting Plaintiff
by punching, kicking, and choking him. Id. Plaintiff passed out. He claims that when he woke
up, Defendant Best was touching Plaintiff in the prostate area, which caused Plaintiff to
ejaculate. Id. at 9 When this happened, Defendant Lashbrook laughed and told Plaintiff, “I told
you I can get your DNA whether or not you chose to give it to me.” Id. When Plaintiff began to
cry, Defendant Lashbrook told him that he if he didn’t want to get assaulted or sexually molested
again, he had better go back to the Bureau and give up a sample of DNA because she already had
his sperm. Id. Plaintiff states that based on this threat, he complied. Id. Following the incident,
Plaintiff asserts that he requested medical treatment from Defendant Thompson, a nurse, but she
refused to provide him any medical care. Id.
Plaintiff notified Internal Affairs of the incident. Defendant Hoff, an officer with Internal
Affairs, told Plaintiff that he would interview him, but no interview or investigation ever took
place. Id. at 10. Plaintiff also filed a complaint with the Illinois State Police regarding the
physical and sexual assault. In addition, Plaintiff filed multiple grievances with Defendants
Butler (warden) and Oakley (grievance counselor), which were denied. Id. Plaintiff also seeks
to hold Defendant Keen, a member of the Administrative Review Board, liable for failing to
properly address his grievances. Id. at 14.
Several months later, Plaintiff was transferred to Pontiac Correctional Center and
interviewed by Internal Affairs regarding a Prison Rape Elimination Act (“PREA”) claim that
had been lodged against him by his former cellmate at Menard. Id. at 11. Plaintiff was later
cleared of any wrongdoing, but he believes that this is evidence of conspiracy to use his DNA to

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fabricate charges against him. Id.
Plaintiff is seeking monetary damages.
Discussion
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
finds it appropriate to organize the claims in Plaintiff’s pro se complaint, as shown below. 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 as to their merit.
Count 1: First Amendment retaliation claim against Defendants Dunbar and
Harris for threatening to make Plaintiff’s life “hell” and Defendants Eovaidi,
Dunbar, and Laminak for threatening to kill Plaintiff and put a “cold case” on him
if he did not stop filing grievances and complaining about the conditions of his
confinement.
Count 2: Defendants Diercks, Dun, Lashbrook, Eovaidi, and Murray violated
Plaintiff’s rights under the First, Fourth, and Eighth Amendments when they
demanded that Plaintiff submit a DNA sample without proof that an additional
sample was required and threatened Plaintiff when he refused to comply.
Count 3: Fourteenth Amendment due process claim against Defendant Brookman
for finding Plaintiff guilty at the disciplinary hearing on December 30, 2014 on
the first disciplinary ticket’s charge of violating state law in the absence of any
evidence in support of that conclusion.
Count 4: Fourteenth Amendment due process claim against Defendant Brookman
for refusing to call a witness at the disciplinary hearing on December 30, 2014 in
support of Plaintiff’s claim that the charges against him on his second disciplinary
ticket were fabricated.
Count 5: Eighth Amendment conditions of confinement claim against Defendants
Laminak and Harris for their deliberate indifference to the conditions of
Plaintiff’s confinement (namely stripping him naked and turning off the water
supply to his cell) while he was on suicide watch on December 26, 2014.
Count 6: Eighth Amendment excessive force and/or failure to intervene claims
against Defendants Lashbrook, Dunbar, Best, Diercks, and unknown members of
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the Orange Crush team who physically and sexually assaulted Plaintiff and/or
failed to prevent other Defendants from physically and sexually assaulting
Plaintiff in January 2015 after he refused to provide a DNA sample.
Count 7: Fourth and Eighth Amendment unreasonable search and/or failure to
intervene claims against Defendants Lashbrook, Dunbar, Best, Diercks, and
unknown members of the Orange Crush team who extracted Plaintiff’s sperm in a
humiliating and invasive manner.
Count 8: Eighth Amendment denial of medical care claim against Defendant
Thompson for refusing to provide medical attention to Plaintiff after he had been
physically and sexually assaulted in January 2015.
Count 9: Failure to investigate claim against Defendants Hoff, Butler, Oakley,
and Keen for failing to address the concerns raised in Plaintiff’s grievances,
complaints, and appeals.
As a preliminary matter, the Court notes that under Illinois state law, individuals
convicted of certain crimes are required to provide a DNA specimen to the Illinois Department
of State Police. The terms and conditions under which the DNA specimen is collected and held
are set forth under 730 Ill. Comp. Stat. 5/5-4-3. According to 730 Ill. Comp. State 5/5-43(h)(i)(2), “In the event that a person's DNA specimen is not adequate for any reason, the person
shall provide another DNA specimen for analysis. Duly authorized law enforcement and
corrections personnel may employ reasonable force in cases in which an individual refuses to
provide a DNA specimen required under this Act.” There appears to be no dispute that Plaintiff
previously provided a DNA specimen in 2004. The question then is whether that previouslyprovided specimen was not “adequate,” and, if so, whether Defendants were required to provide
Plaintiff with some documentation from the State Police that would verify the need for a second
specimen. In addition, if Plaintiff was, in fact, required by state law to provide a second DNA
specimen, was the alleged force used by Defendants to extract a semen sample reasonable?
These are questions that cannot be answered at this juncture.

Therefore, accepting

Plaintiff’s allegations as true, as the Court must do at this preliminary stage, the Court finds that
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Plaintiff has stated actionable claims against the named Defendants in Counts 1-2 and 4-8.
Plaintiff may proceed on these claims against each of the named individuals.

As for the

unknown members of the Orange Crush Tactical Team (referred to by Plaintiff as John and Jane
Does) named under Counts 6 and 7: these individuals must be identified with particularity before
service of the 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. Rodriguez v. Plymouth
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 parties
are identified, Plaintiff shall file a motion to substitute the named individuals in their place.
Claims Subject to Dismissal: Counts 3 and 9
Count 3: Fourteenth Amendment due process claim against Defendant Brookman
for finding Plaintiff guilty at the disciplinary hearing on December 30, 2014 on
the first disciplinary ticket’s charge of violating state law in the absence of any
evidence in support of that conclusion.
Plaintiff claims that Defendant Brookman denied his right to due process when he found
Plaintiff guilty of the offense of violating a state law, despite a finding in the record that Plaintiff
had complied with the law.
When a plaintiff brings an action under § 1983 for procedural due process violations, he
must show that the state deprived him of a constitutionally protected interest in “life, liberty, or
property” without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). A court
reviewing a due process claim must, therefore, engage in a two-part inquiry: 1) was there a
protected interest at stake that necessitated the protections demanded by due process; and 2) was

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the disciplinary hearing process conducted in accordance with procedural due process
requirements?
The first question then is whether a liberty interest was, in fact, at stake in the hearings. In
Sandin v. Conner, 515 U.S. 472, 483-484 (1995), the Supreme Court held that liberty interests
“will be generally limited to freedom from restraint which . . . imposes [an] atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Here,
Plaintiff received a verbal reprimand. As such, even if the finding of guilt was arbitrary, there
was no legally cognizable liberty interest at stake that would have triggered the procedural
safeguards demanded by the due process clause. 1

Therefore, Plaintiff’s due process claim

against Defendant Brookman under Count 3 shall be dismissed without prejudice.
Count 9: Failure to investigate claim against Defendants Hoff, Butler, Oakley,
and Keen for failing to address the concerns raised in Plaintiff’s grievances,
complaints, and appeals.
Lastly, Plaintiff objects to Defendants Hoff, Butler, Oakley, and Keen’s handling of his
grievances and complaints and he claims that Defendants’ failure to respond to his grievances
further deprived him of his rights.
The fact that a counselor, grievance officer, or even a supervisor received a complaint
about the actions of another individual does not alone create liability. Instead, in order to be held
individually liable, a defendant must be “personally responsible for the deprivation of a
constitutional right.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting
Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of Soc.
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Plaintiff received 60 days in segregation on the second ticket, which is why the Court has allowed Plaintiff to
proceed on his due process claim under Count 4. Although inmates generally have a limited liberty interest in
avoiding segregation, see Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013), the Seventh Circuit has noted
that “a liberty interest may arise if the length of segregated confinement is substantial and the record reveals that the
conditions of confinement are unusually harsh.” Marion v. Columbia Correction Inst., 559 F.3d at 697-98 (7th Cir.
2009) (collecting cases). Further development of the record is necessary to determine whether Plaintiff’s
confinement in segregation presented an “atypical” and “significant” hardship such that the due process clause was
implicated as to the second disciplinary ticket.

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Servs., 436 U.S. 658 (1978). A grievance officer or supervisor may be held personally liable if
she had actual knowledge of a constitutional deprivation, yet failed to intervene to address the
violation. See Childress v. Walker, 787 F.3d 433, 439-40 (7th Cir. 2015); see also Perez v.
Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (reversing dismissal of claims against grievance
officers). But the alleged mishandling of grievances “by persons who otherwise did not cause or
participate in the underlying conduct” cannot be a basis for liability under § 1983. Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011).
As the Complaint currently stands, Plaintiff does not allege that any of the Defendants
named under Count 9 had actual knowledge of the alleged constitutional violations at a time
when they could have intervened on Plaintiff’s behalf. Nor does Plaintiff claim that they caused
or participated in the alleged unconstitutional conduct.

Count 9, therefore, shall also be

dismissed without prejudice.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) remains PENDING and shall be
referred to United States Magistrate Judge Williams for a decision.
Disposition
IT IS HEREBY ORDERED that COUNTS 3 and 9 are dismissed without prejudice for
failure to state a claim upon which relief may be granted.
Defendants HOFF, BUTLER, OAKLEY, and KEEN are DISMISSED from this action
without prejudice.
IT IS FURTHER ORDERED that with regard to COUNTS 1-2 and 4-8, the Clerk of
Court shall prepare for Defendants DUNBAR, BROOKMAN, DIERCKS, HARRIS,
LASHBROOK, DUN, MURRAY, BEST, LAMINAK, EOVAIDI, and THOMPSON: (1)

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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 will require that
Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
Service shall not be made on JOHN AND JANE DOES (unknown members of the
Orange Crush team) until such time as Plaintiff has identified this individual by name in a
properly filed amended complaint. Plaintiff is ADVISED that it is Plaintiff’s responsibility to
provide the Court with the name and service address for this individual.
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

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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 Williams for further pre-trial proceedings, which shall include a determination on
Plaintiff’s motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams 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, 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 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: May 26, 2016

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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