Goings v. Baldwin et al

Filing 345

ORDER ADOPTING REPORT AND RECOMMENDATIONS (Doc. 270 ) and GRANTING MOTION for Summary Judgment filed by Defendants (Doc. 229 ). Defendant Unknown Party is DISMISSED with prejudice. As there are no claims remaining, all pending motions are hereby TERMINATED as moot (Docs. 265 , 268 , 278 , 279 , 301 , 303 , 311 , 312 , 315 , 317 , 318 , 321 , 322 , 326 , 327 , 328 , 329 , 332 , 335 , 336 , 338 , 339 , 342 , and 343 , and all deadlines and hearing dates are VACATED. The Clerk of Court is DIRECTED to enter Judgment accordingly. Signed by Judge Staci M. Yandle on 8/16/2019. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

)
)
Plaintiff,
)
)
vs.
)
)
DONALD STOLWORTHY, KIMBERLY )
BUTLER, C/O BENEFIELD, ANDREW
)
SPILLER, JOSH SCHOENBECK,
)
TRACY K. LEE, JEANETTE C. HECHT, )
MICHAEL HOF, AARON RUNGE, ERIN )
CARTER, ANDREW DILLINGHAM,
)
LANCE PHELPS, BRANDON M.
)
ANTHONY, SHERRY BENTON, AND
)
UNKNOWN PARTY,
)
)
)
Defendants.
FREDRICK GOINGS,

Case No. 16-CV-489-SMY-RJD

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is before the Court on the Report and Recommendation (“Report”) of United
States Magistrate Judge Reona J. Daly (Doc. 270), recommending that the motion for summary
judgment filed by Defendants Anthony, Benefield, Benton, Butler, Carter, Dillingham, Hecht, Hof,
Lee, Phelps, Runge, Schoenbeck, Spiller, and Stolworthy (Doc. 229) be granted. Plaintiff Fredrick
Goings filed an objection to the Report on February 22, 2019 (Doc. 310), three days late.1

For

the following reasons, Judge Daly’s Report is ADOPTED.
Background
Plaintiff Frederick Goings filed a Complaint pursuant to 42 U.S.C. § 1983, alleging
Defendants were deliberately indifferent to his medical needs, failed to protect him, failed to

1

Goings was granted until February 19, 2019 to file his objection (Doc. 296). The objection will nonetheless be
considered.

Page 1 of 17

intervene, used excessive force, and subjected him to unconstitutional conditions of confinement
in violation of the Eighth Amendment. He also asserted several state law claims of defamation
and intentional infliction of emotional distress (Docs. 1, 11). Goings’ claims relate to an incident
that occurred on November 5, 2014 at the Menard Correctional Center when he was violently
attacked by his cellmate, David Sesson. Pursuant to an Amended Complaint, he is proceeding on
the following claims:
Count 1: An Eighth Amendment failure to protect claim against Benefield for
setting in motion the violent attack by inmate David Sesson.
Count 3: An Eighth Amendment claim for excessive force and unconstitutional
conditions of confinement against Benefield for subjecting Goings to dangerous or
restrictive conditions and guard brutality.
Count 4: An Eighth Amendment failure to protect claim against Butler,
Schoenbeck, Tracy Lee, Jeannette Hecht, Michael Hof, Aaron Runge, Erin Carter,
Lance Phelps, Andrew Dillingham, Andrew Spiller, and Brandon Anthony.
Count 5: A claim of state law defamation against Benefield for telling other
inmates that Goings dropped a kite about an incident and referring to Goings as a
rat and stool pigeon.
Count 6: A claim of state law defamation against Benton and former Illinois
Department of Corrections Director Stolworthy for written findings following a
protective custody hearing.
Count 12: An Eighth Amendment claim of deliberate indifference towards medical
needs against Warden Butler for denying Goings medical care following the attack
by inmate David Sesson.
Count 16: A state law claim of intentional infliction of emotional distress against
Benefield for setting in motion the attack by inmate David Sesson.
Count 17: A state law claim of intentional infliction of emotional distress against
Butler, Spiller, Tracy Lee, Schoenbeck, Jeannette Hecht, Michael Hof, Aaron
Runge, Erin Carter, Andrew Dillingham, and Brandon Anthony for allowing the
attack by inmate David Sesson.
Count 20: A First Amendment claim of retaliation against Benefield for harassing

Page 2 of 17

Goings in retaliation for filing grievances.2
(Docs. 79, 82, 112). Defendants, who are or were employees of the Illinois Department of
Corrections, moved for summary judgment (Doc. 229). Goings filed a response (Doc. 266).
Judge Daly issued a Report setting forth the applicable law and her conclusions (Doc. 270).
She found that there were no material facts in dispute and that there was insufficient evidence to
support Goings’ claims. Thus, she recommends that Defendants’ Motion be granted and that the
claims against them be dismissed with prejudice. Goings filed an objection to the Report on
February 22, 2019 (Doc. 310).3
Factual Background
The following facts are either undisputed or drawn in a light most favorable to Goings, the
non-moving party, except as otherwise stated. See Carson v. ALL Erection & Crane Rental Corp.,
811 F.3d 993, 994 (7th Cir. 2016): Goings was housed at Menard Correctional Center from June
2013 to June 2016 (Doc. 230-3, p. 3). When Goings first arrived there, he was prevented from
accessing his legal property by Benefield, a maintenance officer who would “cover the galleries
as a temporary officer,” and who was covering the gallery where Goings was initially housed (Id.
78). Goings submitted a grievance about Benefield’s actions during orientation and continued to
file additional grievances about him (Id.).4 Thereafter, Benefield began treating Goings poorly
by preventing him from using call passes to access his property, being disrespectful, using

2

The Report also lists Count 18, a claim against Defendant Mia Galioto for intentional infliction of emotional distress.
Summary judgment was granted in favor of Galioto after the Report was issued, on January 17, 2019 (Doc. 300).
3
In addition to the objection to the Report, Goings filed numerous motions including appeals of Judge Daly’s Orders
(Docs. 278 and 279), various motions for sanctions (Docs. 301, 303, 315, 335), motions for injunctive relief (Docs.
268, 339, 342), a motion for recruitment of counsel (Doc. 343), and other motions (Doc. 265, 311, 312, 317, 318, 321,
322, 326, 327, 329, 332, 336, 338). These motions will not affect this Court’s consideration of the Motion for
Summary Judgment and will be addressed, if necessary, by separate order.
4
According to Goings’ Cumulative Counseling Summary, the grievance was denied because his legal property had
not been transferred to Menard at the time the grievance was written (Doc. 230-16, p. 11). No grievances have been
submitted with the parties’ filings on summary judgment.

Page 3 of 17

profanity, and raising his voice (Id.). It is unclear from the record how long or if Benefield worked
as a temporary officer in the gallery where Goings was housed after the initial orientation phase.5
In the Fall of 2014, Goings was having issues and he stopped Defendant Spiller as he was
walking by to tell him that he was thinking about protective custody (Id. 17). Spiller, who was an
internal affairs officer, told Goings that his department did not handle protective custody but that
he could fill out a request to start the process (Id.). There is no evidence that Goings filled out a
protective custody request.
Later, Goings heard from other inmates that Benefield was telling them he had written a
kite (or note) about another inmate and that he was a snitch (Id. 63, 65). Goings, who was a lawyer
prior to being incarcerated, believes that these accusations diminished his reputation and resulted
in a loss of trust among the prison population (Id. 66). He did not suffer any physical injury
because of the rumor but did lose friends and associates (Id.).
Thereafter, on October 28, 2014, Benefield was the acting sergeant on Goings’ cell block
(Id. 18). Benefield walked through the gallery claiming that someone tampered with paperwork
(Id.). When he was outside Goings’ cell, he said, “I better not find out who’s been fucking with
my shit, or I’m going to come and burn their house down” (Id.). He then ordered that Goings’ cell
be shaken down (Id.). After the shakedown, Goings’ belongings were “trashed” and certain
documents were missing (Id.). When Goings asked for a shakedown slip, he got into a verbal
altercation with Benefield who said he was “going to open up that cell and kick [his] ass” and that
“this is what you get when you fuck with me” (Id. 20). Benefield also commented, “[t]his is what
happens when you piss me off, and I remember when you filed that grievance about legal property”

5

Goings was originally assigned to the West Cellhouse (presumably where the orientation gallery is located) and then
moved to the East Cellhouse on October 30, 2013 (Doc. 230-1, p. 2). He then was moved to the North Cellhouse on
June 13, 2014 where he was almost continuously housed until his transfer to Pontiac Correctional Center on June 1,
2016 (Id. 1-2)

Page 4 of 17

(Id. 78; Doc. 82, p. 9-10).6 Benefield then left. A shakedown slip dated October 29, 2014 showed
that Goings’ cell did not contain contraband, although Goings did not receive the shakedown slip
(Docs. 230-2, p. 1, Doc. 230-3, p. 19).
A day after the shakedown, Benefield told Goings to pack up his belongings because he
was going to be transferred to another cell in the North II Cellhouse (Doc. 230-3, p. 21). When
Goings asked for assistance in moving his belongings, Benefield said no (Id. 59). While he was
being moved, Benefield said “let’s see how you like your next fucking cellmate” (Id. 20). This
was the last interaction that Goings had with Benefield. Benefield did not accompany Goings to
his new cell.
When Goings arrived at his new cell, number 311 in the North II Cellhouse, he was housed
with inmate David Sesson (Id. 21).

Sesson told Goings and the correctional officer who

accompanied him that he did not want a cellmate (Id.). Goings and Sesson avoided each other.
While Sesson did not threaten him, he made clear that he did not want Goings on the floor while
he was on the floor. Goings tried to keep to himself (Id.).
A few days later, on November 5, 2014, Goings jumped down from his bunk onto the floor
in order to get ready for chow (Id. 23). Sesson told him “I told you, don’t be on the floor when I
am on this floor” (Id). Sesson then attacked Goings, knocking him down and tackling him to the
floor where he proceeded to strangle Goings with extension cords (Id. 23-4). Goings lost
consciousness. When he came to, he heard another inmate tell Sesson to cut it out (Id. 24). He
then saw blood on the floor and discovered that he had a gash on his finger, a missing finger nail,
and blood shot eyes (Id. 25, 52). Goings sought help from an unknown correctional officer who
told him to write a “scribe,” which he did, indicating that he was just strangled and needed to be

6

In his deposition, Goings was not clear when Benefield made this statement. However, his verified Amended
Complaint may indicate that the statement was made around the time his cell was shaken down (Doc. 82, pp. 9-10).

Page 5 of 17

separated from Sesson (Id. 25). He was not immediately removed from his cell even after he told
another correctional officer about the attack (Id.).
The next day, Sesson told Goings not to complain about the incident (Id. 53). Goings
sought medical care by sending requests to the healthcare unit and asking for care from healthcare
workers (Id. 49-50). Within a week, he wrote a letter to the Warden, Kimberly Butler, telling her
that an officer had set him up and placed him in the cell with Sesson knowing that he had threatened
to kill his next cellmate (Id. 12, 51). He requested assistance in being moved and to prevent a
similar incident from happening again (Id.).
On November 8, 2014, an investigation was conducted by Defendant Schoenbeck who
interviewed Goings and Sesson (Doc. 230-5, Doc. 230-3, p. 54, Doc. 266-1, p. 9). Goings told
Schoenbeck what happened and that he feared for his life (Doc. 230-3, p. 54). Nevertheless,
Goings was placed back in the cell with Sesson. He continued to request immediate separation
but was informed that Sesson would not be immediately moved (Id.). Sesson and Goings did not
have another altercation, but Sesson told other inmates that Goings was a snitch (Id.). Sesson was
removed from the cell a few days after his interview with Schoenbeck (Id. 55-57; Doc. 82, p. 16).7
Prior to leaving, Sesson told Goings that he was paid to attack him and mentioned Benefield (Doc.
230-3, p. 56).
Goings requested protective custody on December 1, 2014 (Id. 71).

While that

determination was being made, he was placed in a cell with an inmate with the same gang
affiliation as Sesson (Id.). Goings requested a new cell but was told by Defendant Hecht that he
would remain in that cell unless he signed himself out of protective custody (Id.). Goings signed
himself out of protective custody and filed another request for protective custody on February 25,

7

This fact is disputed as set forth below.

Page 6 of 17

2015 (Id.). That request was denied on March 2, 2015 and Goings appealed the decision to the
Administrative Review Board (“ARB”) (Id. 72-3). The ARB, through Defendant Benton, denied
the appeal; a decision that was signed off on by Defendant Stolworthy (Id. 75). That decision was
read out loud and within the hearing of Goings’ cellmate and others (Id. 73).8 Goings believes that
his reputation was again injured by the ARB’s opinion and its transmission to other inmates.
Goings did not speak to Defendants Butler, Schoenbeck, Lee, Hecht, Hof, Runge, Carter,
Phelps, Dillingham or Anthony prior to the incident with Sesson (Id. 51). He did not tell any
defendant about Sesson’s behavior or any specific threats of harm prior to the attack (Id.). As a
result of Goings’ interview with Schoenbeck after the attack, Schoenbeck sent an email to the other
defendants (except Benton, Stolworthy, Butler, and Benefield) on November 11, 2014 outlining
the incident (Id. 12-13; Doc. 266-1).
Despite sending a number of requests for medical care, Goings was seen by an optometrist
on December 2, 2014 and a doctor on December 3, 2014 (Doc. 230-6, pp. 7-11; Doc. 230-3, p.
55). There is no evidence that any defendant was aware of Goings request for medical care.
Goings also sought mental health treatment. A “mental health progress note” dated January
30, 2015 and signed by Psychiatrist Dr. Galioto recounts a host of incidents that Goings had while
incarcerated, including the November 5, 2014 incident (Doc. 266-1, pp. 28-27). While the
clinician’s diagnosis was PTSD and personality disorder, the note indicates that objective findings
were essentially normal and that Goings refused medication (Id.). He was told to follow-up as
needed (Id.). The next month, Dr. Galioto again noted essentially normal clinical findings and
found that there was “no major mental illness” (Id. 29). The note also states that Goings selfreported PTSD and had a personality disorder (Id.). In a subsequent mental health note dated

8

Neither Defendants nor Plaintiff have provided the document signed by Defendants Benton or Stolworthy.

Page 7 of 17

November 5, 2016, after he was transferred to Pontiac CC, Goings again discusses the events on
November 5, 2014 and is assessed as having a paranoid personality (Id. p. 36-7). He was diagnosed
with PTSD on December 7, 2016 (Id. 38-9) and was seen by mental health professionals once
every three months thereafter (Id. 13-22). Goings claims that he has suffered from emotional
distress, a deep sleep disorder, confusion, memory loss, and speech slips since the attack (Id. 66).
Legal Standard
Since Goings filed an objection, this Court must undertake a de novo review of Judge
Daly’s findings and recommendations. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);
SDIL-LR 73.1(b); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review
requires the district judge to “give fresh consideration to those issues to which specific objections
have been 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.” Mendez
v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court “may accept, reject or modify the
magistrate judge’s recommended decision.” Id. Consistent with these standards, the Court has
reviewed Judge Daly’s Report de novo.
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving
party bears the initial burden of demonstrating the lack of any genuine issue of material fact.
Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is filed, the
adverse party “must set forth specific facts showing there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Page 8 of 17

A genuine issue of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745
(7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). When deciding a summary judgment motion,
the Court views the facts in the light most favorable to, and draws all reasonable inferences in
favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th
Cir. 2013) (citation omitted). Summary judgment will be denied where a reasonable jury could
return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Hedberg v. Indiana Bell
Tel. Co., 47 F.3d 928, 931 (7th Cir.1995).
Discussion
General Objections
Goings first objects to consideration of Defendants’ memorandum in support of their
motion for summary judgment because the motion referred to a memorandum in support of a
motion to dismiss. This is an obvious typo and does not affect the Court’s consideration of the
motion or memorandum on the merits.
Goings next objects to Judge Daly’s citation to the document number and page number
generated by CM/ECF rather than to the page numbers listed on the exhibits. Citations to the
record are a mere courtesy, and Goings does not claim that he suffered any prejudice from the
citations. This objection is therefore without merit.
Next, Goings asserts that he intends to elicit testimony at trial to prove his case. Summary
judgment “requires a non-moving party to respond to the moving party’s properly-supported
motion by identifying specific, admissible evidence showing that there is a genuine dispute of
material fact for trial.” Grant v. Trustees of Indiana University, 870 F.3d 562, 569 (7th Cir. 2017).
It is insufficient for Goings to merely state what he expects the evidence at trial to reveal.

Page 9 of 17

Additionally, Goings may not rely on hearsay to support his claims, including his own testimony
that Sesson told him Benefield hired Sesson to attack him. See Fed.R.Evid. 801(c). Finally,
although Goings is “entitled to the benefit of reasonable inferences, that does not extend to
inferences that are supported only by speculation and conjecture.” Matthews v. Waukesha County,
759 F.3d 821, 824 (7th Cir. 2014). As such, Goings’ speculation that there was a plot between
Sesson and Benefield to attack him is not evidence. To the extent Goings relies on conjecture,
speculation, and non-existent evidence to support his claims, such arguments are summarily
rejected.
Counts 1 and 4: Failure to Protect
Goings contends that Judge Daly erred in concluding that Benefield is entitled to judgment
on Counts 1. Specifically, he argues that three pieces of evidence demonstrate Benefield was
deliberately indifferent to the risk posed by transferring him to a cell with Sesson: Benefield’s
belief that Goings had tampered with his paperwork; Benefield’s statement “Let’s see how you
like your next fucking cellmate” at the time of the transfer; and threats of harm Benefield directed
at Goings just prior to the transfer (“I’m going to open up that cell and kick your ass”). Goings
maintains these three events “set in motion” the assault by Sesson.
Prison officials have a constitutional duty to “take reasonable measures to guarantee the
safety” of prisoners and protect them “from violence at the hands of other prisoners.” Brown v.
Budz, 398 F.3d 904, 909 (7th Cir. 2005). To prevail on a failure to protect claim, a prisoner must
show that (1) “he is incarcerated under conditions posing a substantial risk of serious harm, and
(2) defendant(s) “acted with deliberate indifference to that risk.” Id. Goings claims that Benefield
intentionally placed him in a cell with Sesson with the intent to cause him harm or at least with
knowledge of a heightened risk of harm. He cites evidence that Benefield was belligerent towards

Page 10 of 17

him and Benefield’s statement that he will like his next cellmate. However, there is no evidence
of any connection between Benefield and Sesson, no evidence that Benefield knew or had reason
to know of Sesson’s predilections, and no evidence that Benefield had any involvement in Goings’
cell placement. Goings merely speculates that Benefield placed him in a dangerous situation. See
Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir. 1995) (“If [correctional
officers] place a prisoner in a cell that has a cobra, but they do not know that there is a cobra there
(or even that there is a high probability that there is a cobra there), they are not guilty of deliberate
indifference even if they should have known about the risk, that is, even if they were negligent –
even grossly negligent or even reckless in the tort sense – in failing to know.”). Therefore,
Benefield is entitled to summary judgment on Count 1.
The same is true with respect to Count 4. Goings argues that he was susceptible to attack
because of his background and that various personnel at Menard (but not specifically Defendants)
were aware of Sesson’s violent tendencies. See e.g. Sinn v. Lemmon, 911 F.3d 412, 422 (7th Cir.
2018) (reversing summary judgment where officer was aware of general gang violence, a specific
gang related attack on plaintiff, knew of repeat attacks on inmates like plaintiff, and was told by
plaintiff that he was fearful and needed to be moved). There is no evidence to suggest that any of
the defendants were aware that Sesson posed a threat to Goings before to the attack; there is no
evidence they were either aware of Sesson’s violent tendencies or that Goings was particularly
vulnerable. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“We hold instead that a prison
official cannot be found liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”). Instead, the

Page 11 of 17

evidence reveals that an investigation was conducted after Sesson attacked Goings and he was
ultimately separated from Sesson.
Goings argues that Defendants received emails regarding potential and general dangers at
the prison, but the only email in the record is one dated November 11, 2014 from Schoenbeck to
other Defendants related to the November 5, 2014 incident. That email does not establish that any
defendant was aware that Sesson posed a risk of harm to Goings before the attack. As far as the
recipients of the email were aware, Schoenbeck investigated the incident and immediately
separated Goings from Sessson. There is no evidence that any defendant was aware of any further
specific threat to Goings’ safety. Therefore, Defendants Butler, Lee, Hecht, Hof, Runge Carter,
Phelps, Dillingham, Spiller, and Anthony are entitled to summary judgment on Count 4.
As to Schoenbeck, while there is a question of fact as to whether Goings was separated
from Sesson on November 8, 2014 as Schoenbeck contends (Doc. 230-14), or a few days later, as
Goings testified, it is undisputed that there were no additional attacks or altercations after
November 8, 2014. Thus, Goings has no viable failure to protect claim against Schoenbeck and
Schoenbeck is also entitled to summary judgment on Count 4.
Count 3: Excessive Force and Unconstitutional Conditions of Confinement
In this claim, Goings alleges that Benefield orchestrated the attack by Sesson.

As

previously noted however, there is no admissible evidence in the record connecting Benefield to
Sesson or showing that Benefield orchestrated the attack on Goings. Benefield is therefore also
entitled to summary judgment on this claim.

Page 12 of 17

Counts 5 and 6: Defamation9
Goings claims Benefield told other inmates and correctional officers that he is a snitch,
stool-pigeon, and a rat and that these statements damaged his reputation among the prison
population, caused him to miss out on a prison law clerk job, and damaged his reputation in the
greater legal community. In his objection, Goings states certain facts, without citation to the
record, and does not challenge Judge Daly’s finding that he failed to plead special damages and
has not shown any pecuniary loss as a result of the alleged defamation. Tuite v. Corbitt, 866
N.E.2d 114, 121 (Ill. 2006). Accordingly, this Court agrees with Judge Daly’s conclusion;
Benefield is entitled to judgment on this claim.
The Court reaches the same conclusion as to Count 6. Goings alleges that Benton and
Stolworthy defamed him by written statements following the protective custody hearing. Again,
Goings fails to show any damages that resulted from the allegedly defaming statements, and he
does not specifically object to Judge Daly’s findings and conclusions as to this Count. Therefore,
Defendants Benton and Stolworthy are entitled to judgment on Count 6.
Count 12: Deliberate Indifference to Medical Needs
In order to prevail on a deliberate indifference to serious medical needs claim, a plaintiff
must first show that his condition was “objectively, sufficiently serious” and second, that the
“prison officials acted with a sufficiently culpable state of mind.” Greeno v. Daley, 414 F.3d 645,
652-53 (7th Cir. 2005) (citations and quotation marks omitted). Assuming Goings had an
objectively serious medical condition, he must show that prison officials acted with a sufficiently

9
Defendants argue that this Court lacks jurisdiction to consider Counts 5, 6, 16, and 17, which they argue are barred
by sovereign immunity. Judge Daly did not address this argument, opting to address the claims on the merits.
Defendants have not objected to this omission. In any event, the Seventh Circuit has held that it is “clear that a state
employee’s sovereign immunity defense does not impact a federal court’s jurisdiction over a case.” Fields v Wharrie,
672 F.3d 505, 518 (7th Cir. 2012).

Page 13 of 17

culpable state of mind, namely, deliberate indifference. In other words, he must show that the
officials were “aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists” and that the officials actually drew that inference. Greeno, 414 F.3d at 653.
He does not have to prove that his complaints were “literally ignored,” only that “the defendants'
responses were so plainly inappropriate as to permit the inference that the defendants intentionally
or recklessly disregarded his needs.” Hayes, 546 F.3d at 524 (quoting Sherrod v. Lingle, 223 F.3d
605, 611 (7th Cir. 2000) ). Negligence, gross negligence, or even recklessness as that term is used
in tort cases, is not enough. Id. at 653; Shockley v. Jones, 823, F.2d 1068, 1072 (7th Cir. 1987).
To the extent Goings argues that Butler is liable because of her status as the chief
administrator of the jail, this argument is without merit because there is no respondeat superior
liability in § 1983 cases. Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir, 2008). Goings further
argues that Butler was aware of his medical needs because of the letter he sent after the attack.
The actual letter is not a part of the record, but Goings described it in his deposition:
I had wrote her at least a two-page letter asking her to assist me with the
circumstance that I was going through and getting proper placement and ensuring
that this type of incident never occurred, and in informing her of that, the officer
had set me up, put me in that cell with full knowledge knowing that Mr. David
Sessions threatened to kill his next cellmate.
(Doc. 230-3, p. 12).
Based on Goings’ own description, the letter would not have alerted Butler that there was an
excessive risk to his health or that he was requesting medical assistance. Therefore, Butler is
entitled to judgment on Count 12.
Counts 16 and 17: Intentional Infliction of Emotional Distress
Goings alleges that by putting attack by Sesson in motion or allowing it to happen,
Defendants inflicted severe emotional distress. Goings does not state any specific objection to
Judge Daly’s conclusion that the record does not support such a finding. Instead, he merely
Page 14 of 17

rehashes the facts related to these claims and makes the same arguments that were already
considered and rejected by Judge Daly, without indicating how he believes Judge Daly erred. In
any event, in order to prevail on a claim of intentional infliction of emotional distress, Goings must
demonstrate that the Defendants intentionally or recklessly engaged in “extreme and outrageous
conduct” that resulted in severe emotional distress. Somberger v. City of Knoxville, Ill.,, 434 F.3d
1006, 1030 (7th Cir. 2006). The tort has three components: (1) the conduct involved must be truly
extreme and outrageous; (2) the actor must either intend that his conduct inflict severe emotional
distress, or know that there is at least a high probability that his conduct will cause severe emotional
distress; and (3) the conduct must in fact cause severe emotional distress. McGrath v. Fahey, 533
N.E.2d 806, 809 (Ill. 1988). To be actionable, the defendants’ conduct “must go beyond all bounds
of decency and be considered intolerable in a civilized community.” Honaker v. Smith, 256 F.3d
477, 490 (7th Cir. 2001) (citing Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992));
Campbell v. A.C. Equip. Servs. Corp., Inc., 610 N.E.2d 745, 749 (Ill. App. Ct. 1993). Whether
conduct is extreme and outrageous is judged on an objective standard, based on the facts of the
particular case. Honaker, 256 F.3d at 490.
As this Court has found that no reasonable jury would conclude Defendants were
deliberately indifferent to Goings’ safety by allowing the attack by Sesson, there is no evidence
that their conduct was outrageous or extreme. See e.g. Dixon v. County of Cook, 819 F.3d 343,
351 (7th Cir. 2016) (“The requirement of finding ‘extreme and outrageous’ conduct is a demanding
one, and it will not be met in every instance where a plaintiff has stated a claim under the Eight
Amendment (which itself sets a high bar).”). Moreover, there is no showing that they intended or
should have known that their conduct would cause emotional distress. Id. (“Behavior that is
otherwise rude, abrasive, or inconsiderate can be intentional infliction of emotional distress if the

Page 15 of 17

plaintiff is particularly susceptible to emotional distress and the defendant is aware of plaintiff's
susceptibility.”). These Defendants are therefore entitled to summary judgment on these Counts.10
Count 20: First Amendment retaliation Claim
An inmate has a First Amendment right to file grievances and lawsuits. Watkins v. Kasper,
599 F.3d 791, 798 (7th Cir. 2010). “An act taken in retaliation for the exercise of a constitutionally
protected right violates the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000).
To prevail on a retaliation claim, an inmate must show that “(1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation likely to deter such activity; and (3) the
First Amendment activity was at least a motivating factor in the decision to impose the
deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir. 2014) (citations omitted).
Goings wrote a grievance about Benefield interfering with access to legal property when
he was transferred to Menard.11 He claims that from that day on, Benefield engaged in a pattern
of harassment: preventing access to property, being disrespectful, using profanity, spreading
rumors about him being a snitch, and then ultimately orchestrating the transfer to the cell with
Sesson.
The use of profanity, impolite speech, and threats would not deter a person of ordinary
firmness from exercising his right to file grievances. See Bart v. Telford, 677 F.2d 622, 625 (7th
Cir. 1982) (“It would trivialize the First Amendment to hold that harassment for exercising the

10

As set forth in the 28 U.S.C. § 1915A Screening Order (Doc. 11) and the March 27, 2017 Order (Doc. 79), Count
17 is only related to the initial placement of Goings in the cell with Sesson. The Count does not allege the infliction
of emotional distress as to events that occurred after November 5, 2014.
11
Defendants have not argued that the grievance was not protected First Amendment speech. See Hughes v. Scott,
816 F.3d 955, 956 (7th Cir. 2016) (“Grievances addressed to a government agency are, if intelligible, nonfrivolous,
and nonmalicious, petitions for the redress of grievances within the meaning of the First Amendment and are therefore
prima facie protected by the amendment.”). As set forth in the Cumulative Counseling Summary, the grievance was
denied because Goings’ legal documents had not arrived at Menard when he accused Benefield of interfering with
access to the same. As such, the grievance may have been considered frivolous and outside the ambit of the First
Amendment.

Page 16 of 17

right of free speech was always actionable no matter how unlikely to deter a person of ordinary
firmness from that exercise.”). Further, there is no evidence that any inmate believed Goings was
a snitch, such that any rumor would constitute a deprivation. See Cobian v. McLaughlin, 717 F.
App’x 605, 610 (7th Cir. 2017) (“Although being branded a ‘snitch’ can pose a substantial risk of
harm to inmates, an inmate’s cooperation with authorities poses no risk unless fellow prisoners
believe the prisoner is a snitch.”). Nor is there evidence in the record that Benefield orchestrated
Goings’ transfer to the cell with Sesson. Indeed, it is undisputed that Goings continued to file
grievances and lawsuits thereafter. Therefore, Benefield is entitled to summary judgment on Count
20.
Unknown Defendants
Goings also named unknown parties in the operative Complaint. As of the date of this
Order, Goings has neither identified those unknown parties or filed an amended complaint naming
those parties (See Doc. 79). As such, pursuant to Federal Rule of Civil Procedure 41, they are
dismissed with prejudice for failure to prosecute.
Conclusion
For the foregoing reasons, Judge Daly’s Report and Recommendation is ADOPTED in its
entirety.

Accordingly, Defendant Unknown party is DISMISSED with prejudice and

Defendants’ Motion for Summary Judgment (Doc. 229) is GRANTED. As there are no claims
remaining, all pending motions are hereby TERMINATED as moot and all deadlines and hearing
dates are VACATED. The Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: August 16, 2019
STACI M. YANDLE
United States District Judge
Page 17 of 17