Lisle, Jr. v. Butler et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/16/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN D. LISLE, JR.,
No. R40159,
Plaintiff,
vs.
KIMBERLY BUTLER,
SUSAN HILL,
BRAD BRAMLETT,
LT. EVOIDI,
MRS. SMITH,
SGT. HARRIS,
C/O LAMINAK,
C/O MCCLURE,
SGT. ANTHONY,
SGT. HARRSION,
MR. SMITH,
T. SKEEN, and
UNKNOWN PARTIES,
Defendants.

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Case No. 16-cv-00422-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Steven D. Lisle, Jr., is an inmate currently housed in Pontiac Correctional
Center. Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for deprivations of his
constitutional rights stemming from a failure to offer medical care after he attempted suicide by
swallowing a razorblade.
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, 102627 (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, on June 17, 2015, Plaintiff Lisle attempted suicide by
swallowing a razorblade. Sgt. Harris escorted Plaintiff to a holding area and alerted Lt. Evoidi.
Evoidi called Plaintiff a “piece of shit,” upbraided him because this all occurred on his shift, and
said that Plaintiff would be placed in a nearby cell, rather than being taken to the health care unit.
Even when Plaintiff began spitting up blood, Evoidi did not send Plaintiff for medical treatment.
When an unidentified mental health doctor checked on Plaintiff, Plaintiff reported that his
stomach hurt and he needed medical attention. The mental health doctor indicated he was going
to see what he could do for Plaintiff, but then Evoidi insisted Plaintiff was lying about
swallowing a razorblade. Although Plaintiff again spit up blood, the unidentified mental health
doctor walked off. According to Plaintiff, Evoidi similarly told Mrs. Smith to not treat him. Mrs.
Smith only took Plaintiff’s pulse and temperature, even though Plaintiff explained he swallowed
a razorblade and was in pain and spitting up blood.

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Plaintiff also sought help from C/O McClure, C/O Laminak and Sgt. Harris, but they only
called Plaintiff derogatory names and said he could die for all they cared. An unidentified nurse
passing out medication on the gallery also failed to get Plaintiff medical care. When the third
shift began, Sgt. Anthony toured the gallery. Upon learning of Plaintiff’s condition and
witnessing Plaintiff spit up blood, Anthony explained that Lt. Evoidi had already told him not to
get Plaintiff care because Plaintiff was on a “blackball list.” At 3 a.m. the next morning, an
unidentified nurse made rounds, and Plaintiff explained that he had swallowed a razorblade and
he remained in pain and continued to spit up blood. Evoidi announced that Plaintiff “ain’t got
nothing coming,” and he and the nurse walked away.
Plaintiff was eventually taken to the health care unit, and an x-ray showed that he had
swallowed a razorblade. Sgt. Harrison, Mrs. Smith, and multiple unidentified prison officials
were in the health care unit and were informed of the presence of a razorblade in Plaintiff’s
abdomen (confirmed by a second x-ray), but Plaintiff was not afforded any medical care. He
was, however, given disciplinary reports.
Plaintiff was returned to his cell on suicide watch. He informed Mr. Smith that the
razorblade remained in his stomach and he was still in pain, but Mr. Smith did not get Plaintiff
medical care. When Plaintiff subsequently evacuated his bowels, the razorblade cut his rectum.
He handed the razorblade to an unidentified gallery officer and explained his situation, but he
was still not given medical attention—instead, he received a “shakedown slip.”
Grievances requesting medical care were sent to Counselor Brad Bramlett and Counselor
Susan Hill, but nothing was done. “Kites” were sent to Warden Kimberly Butler without result,
and when Plaintiff spoke to Butler in person, the warden walked away and never responded to
Plaintiff’s requests for care and action on his complaints.

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Plaintiff was transferred from Menard to Pontiac Correctional Center and, as a result, his
grievances became the responsibility of the Administrative Review Board. T. Scott Keen
responded to Plaintiff’s grievances regarding disciplinary matters, but not to the issues regarding
the denial of medical care. (See Doc. 1, p. 22, reflecting that the grievance response was signed
by “T. Scott Keen,” not “T. Skeen” as Plaintiff states in the complaint).
Plaintiff has brought suit against all of the individuals referenced above. He seeks
injunctive relief in the form of a preliminary and permanent injunction directing Administrative
Review Board member T. Scott Keen (a.k.a. “T. Skeen”) to investigate and address every issue
in Plaintiff’s grievances relative to Menard Correctional Center and Pontiac Correctional Center.
Plaintiff also seeks compensatory and punitive damages.
Based on the allegations in the complaint and Plaintiff’s own characterization of his
claims, 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. The designation of these counts does not
constitute an opinion as to their merit.
Count 1: All Defendants were negligent and deliberately indifferent to
Plaintiff’s serious medical needs, in violation of the Eighth
Amendment;
Count 2: Defendants Susan Hill, Brad Bramlett, Kimberly Butler, and T.
Scott Keen (a.k.a. “T. Skeen”) failed to respond to, and/or act on,
Plaintiff’s grievances, thereby denying him due process and equal
protection in violation of the Fourteenth Amendment.
Any claims that were intended but not recognized by the Court should be considered
dismissed without prejudice as insufficiently stated under the Twombly pleading standard.

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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). Eighth Amendment protection extends to
conditions of confinement that pose a substantial risk of serious harm, including health and
safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012).
Prison officials can violate the Eighth Amendment’s proscription against cruel and
unusual punishment when their conduct demonstrates “deliberate indifference to serious medical
needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official may be liable
“only if he knows that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Proving deliberate indifference, however, requires more than a showing of negligent or even
grossly negligent behavior. Id. at 835. Rather, the corrections officer must have acted with the
equivalent of criminal recklessness. Id. at 836–37.
Once prison officials know about a serious risk of harm, they have an obligation “to take
reasonable measures to abate it,” even if harm is not averted. Borello v. Allison, 446 F.3d 742,
747 (7th Cir. 2006); see also Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008). Even those not
directly involved in providing medical care—“non-medical defendants”—can be liable. See
Perez v. Fenoglio, 792 F.3d 768, 781-782 (7th Cir. 2015).
The allegations of deliberate indifference relative to each Defendant clearly fall within
the ambit of the Eighth Amendment. Of course, Plaintiff will have to identify the Unknown
Parties by name and amend the complaint.

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Insofar as Plaintiff refers to Defendants’ negligence, no constitutional claim has been
stated, and that aspect of Count 1 will be dismissed without prejudice. See Farmer, 511 U.S. at
835.
Count 2
Count 2 pertains to the allegations that Susan Hill, Brad Bramlett, Kimberly Butler, and
T. Scott Keen (a.k.a. “T. Skeen”) failed to respond to, and/or act on, Plaintiff’s grievances,
thereby denying him due process and equal protection in violation of the Fourteenth
Amendment.
Many of the due process allegations are interspersed within a discussion regarding
Plaintiff’s efforts to exhaust administrative remedies as required by 42 U.S.C. § 1997e.
Therefore, as a preliminary matter, the Court notes that such tactics do not amount to blocking
access to the courts for purposes of a First Amendment claim. Section 1997e(a) only requires the
exhaustion of “available” administrative remedies. If the administrative grievance process is
rendered unavailable by prison officials, as Plaintiff appears to be alleging, the exhaustion
requirement is satisfied, and there is no impediment to filing suit. See Thomas v. Reese, 787 F.3d
845, 847 (7th Cir. 2015).
Insofar as Plaintiff takes issue with his grievances not being acted upon (or not resolved
as he would wish), 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). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008);
George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996). “[A] state’s inmate grievance procedures do not give rise to a liberty interest
protected by the Due Process Clause.” Antonelli, 81 F.3d at 1430. The Constitution requires no

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procedure at all, and the failure of state prison officials to follow their own procedures does not,
by itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango
v. Jurich, 681 F.2d 1091, 1100–01 (7th Cir. 1982). Thus, the due process aspects of Count 2 fail
to state a colorable claim. Of course, Defendants Hill, Bramlett, Butler, and Keen remain in
Count 1 insofar as the grievances conveyed actionable information regarding his need for
medical care. 1
The Equal Protection Clause claim against Hill, Bramlett, Butler, and Keen is presumed
to be a so-called “class-of-one” claim because there is no suggestion of any type of
discrimination based on a particular discriminatory classification, such as race. A class-of-one
claim generally requires that (1) the plaintiff has been intentionally treated differently from
others similarly situated, and (2) there is no rational basis for different treatment. See Engquist v.
Oregon Dep’t of Agriculture, 553 U.S. 591, 601 (2008); Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000). No intentional discrimination or animus has been alleged; Plaintiff’s equal
protection claim is nothing more than a conclusory legal assertion that does not satisfy the
Twombly pleading standard. Count 2 will be dismissed without prejudice.
Injunctive Relief
Plaintiff seeks a preliminary and permanent injunction directing Administrative Review
Board member T. Scott Keen (a.k.a. “T. Skeen”) to investigate and address every issue in
Plaintiff’s grievances relative to Menard Correctional Center and Pontiac Correctional Center.
Because Count 2 regarding failing to address Plaintiff’s grievances has been dismissed, and in
light of the fact that Plaintiff is no longer at Menard Correctional Center, the request for
injunctive relief will be dismissed without prejudice.
1

The Eighth Amendment claim against T. Scott Keen is tenuous, but further factual development is
necessary, so Keen will remain in this case for the time being.

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Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the negligence claim within
COUNT 1 is DISMISSED without prejudice; the Eighth Amendment deliberate indifference
claim within COUNT 1 shall PROCEED against all Defendants.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the request for permanent and preliminary injunctive
relief is DISMISSED without prejudice, as it was tied exclusively to Count 2.
The Clerk of Court shall CORRECT the name “T. Skeen” in the record to T. SCOTT
KEEN. All parties shall use the correct name going forward.
The Clerk of Court shall prepare for Defendants KIMBERLY BUTLER, SUSAN
HILL, BRAD BRAMLETT, LT. EVOIDI, MRS. SMITH, SGT. HARRIS, C/O LAMINAK,
C/O MCCLURE, SGT. ANTHONY, SGT. HARRISON, MR. SMITH, and T. SCOTT
KEEN: (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.
Service shall not be made on the UNKNOWN PARTIES until such time as Plaintiff has
identified them 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 these
individuals.
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

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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
consideration of Plaintiff’s motion for counsel (Doc. 3).
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

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that his application to proceed in forma pauperis may have 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: May 16, 2016
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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