Keller v. Walton et al

Filing 69

MEMORANDUM AND ORDER, The Court ADOPTS in part and REJECTS in part the Report (Doc. 66). The Court GRANTS in part and DENIES in part the Motion to Dismiss Count I of Plaintiff's Complaint by C. Behle, J. Byram, S. Byram, M. Patterson, J. S. Walt on (Doc. 39), DISMISSES defendant M. Patterson from Count I of the Complaint, DIRECTS the Clerk of Court to TERMINATE M. Patterson as a defendant in this case, and DENIES the Motion to Dismiss Count III of Plaintiff's Complaint by J. Byram, Nat haniel Bufford, Jr., C/O Cook, Dawn, Joey R Hampton, Sharon K Hicks, May, David W Morris, Johnathan C Mowery, Josh Richardson, Jeff C Richey, Judd Andrew Snyder, James W Tanner, Thompson, Thomas Richard Waters, Alexander Leif Will (Doc. 40). Signed by Judge J. Phil Gilbert on 11/28/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DERRICK KELLER,
Plaintiff,
v.

Case No. 3:16-cv-00565-JPG-DGW

J.S. WALTON, et al.,
Defendants.
MEMORANDUM & ORDER
J. PHIL GILBERT, DISTRICT JUDGE
This matter comes before the Court on the Report and Recommendation (“Report”)
(Doc. 66) of Magistrate Judge Donald G. Wilkerson recommending that the Court deny both the
Motion to Dismiss Count I of Plaintiff’s Complaint filed by Defendants Walton, Patterson, J.
Byram, S. Byram, and Behle (Doc. 39), and the Motion to Dismiss Count III of Plaintiff’s
Complaint filed by Defendants J. Byram, Morris, Mowery, Cook, Bufford, Jr., Snyder, Will,
Tanner, Waters, Richey, Hicks, Hampton, Daun, May, Thompson, and Richardson (Doc. 40).
The Government has filed an objection to the Report on behalf of the defendants (Doc. 67) and
the plaintiff has responded to the objection (Doc. 68).
I.

BACKGROUND
Charles Derrick Keller is serving a 180-month sentence for possessing a firearm as a

convicted felon. In 2016, he brought this suit pursuant to Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971), alleging that a number of parties violated his constitutional rights while he
was incarcerated at United States Penitentiary Marion (USP-Marion). The claims center around
Keller’s alleged psychiatric condition, which he asserts prison officials inflamed by placing him
in unacceptable situations at the prison. Specifically, Keller maintains that prison officials (1)
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assigned him to a three-man cell when they knew Keller required a single-man cell because of
his condition, and (2) confined Keller in a “boxcar” cell—rife with unsanitary and unsafe
conditions—in retaliation for Keller’s grievances with the prison. The Court screened Keller’s
complaint pursuant to 28 U.S.C. § 1915A and allowed the following claims to proceed:
Count 1: Eighth Amendment claim against Defendants Walton, S.
Byram, J. Byram, Behle, and Patterson, for deliberate indifference
to Plaintiff’s serious mental health condition in that they housed
him under conditions that worsened his psychiatric symptoms;
Count 2: First Amendment retaliation claim against Defendants
Walton, S. Byram, Behle, J. Byram, Patterson, and Mowery, who
took adverse actions against Plaintiff (a retaliatory transfer, false
disciplinary report, and placement in the boxcar cell) because he
filed grievances over his conditions of confinement;
Count 3: Eighth Amendment claim against Defendants J. Byram,
Morrison, Mowery, Cook, Bufford, Bushnell, Snyder, Will,
Tanner, Morris, Waters, Richey, Hicks, Hampton, Dawn, May,
Thompson, Richardson, Trovillion, Pass, and other Jane/John Doe
SHU Officers, who kept Plaintiff confined in unsanitary and unsafe
conditions in the boxcar cell for seven days, and/or failed to
mitigate those conditions after learning of them.
Now, the Government has filed two motions to dismiss on behalf of the defendants
seeking to dismiss Counts 1 and 3 pursuant to Federal Rule of Civil Procedure 12(b)(6). First, the
Government argues that the Court should dismiss Count 1 because (1) qualified immunity
insulates the defendants from suit, and (2) the complaint fails to allege a violation of the Eighth
Amendment. Next, the Government argues that the Court should dismiss Count 3 because Keller
has not exhausted his administrative remedies.
Magistrate Judge Wilkerson issued a report and recommendation (“Report”) that
recommends this Court deny both motions. (Doc. 66.) With regards to the Count I arguments, the
Report first explains that even though this Court has the discretion to change its decision from
the initial screening order, such a reversal is not warranted here. Second, the Report spells out
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that qualified immunity does not apply because Keller has sufficiently alleged the elements of an
Eighth Amendment deliberate indifference claim: a claim which abrogates qualified immunity.
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity does not protect a
government official if their conduct violates “clearly established statutory or constitutional rights
of which a reasonable person would have known”); Carlson v. Green, 446 U.S. 14 (1980)
(allowing a Bivens claim predicated on an Eighth Amendment violation to proceed). With
regards to the administrative remedies argument, the Report outlines that Keller exhausted his
administrative remedies. Even though Keller was tardy in filing his BP-9 form, he had a valid
reason for the delay pursuant to 28 C.F.R. § 542.14(a) because he was waiting for the institution
to respond to his informal resolution request. The Government has filed an assertive objection to
the Report on the Count I issues, but the objection does not mention the exhaustion of remedies
matter. (Doc. 67.)
II.

LEGAL STANDARDS
A.

Standard of Review

The Court may accept, reject, or modify—in whole or in part—the findings or
recommendations of the magistrate judge in a report and recommendation. FED. R. CIV. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
B.

Federal Rule of Civil Procedure 12(b)(6)

When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all
allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to state
a claim, a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This requirement is satisfied if the
complaint: (1) describes the claim in sufficient detail to give the defendant fair notice of what the
claim is and the grounds upon which it rests and (2) plausibly suggests that the plaintiff has a
right to relief above a speculative level. Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Bell Atl., 550 U.S. at 556). “Determining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679.
III.

ANALYSIS
A.

Count I: The Eighth Amendment & Sovereign Immunity
i.

Bivens and 1983

First, the Government argues that the Report improperly conflated the legal standards of
Bivens and 42 U.S.C. § 1983. This argument hinges on the Supreme Court’s recent opinion in
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017): the Government explains that since Bivens is a
judicially-implied remedy, the Court cannot extend it to new contexts without consulting a
“variety of factors”. The Government contends that even though Courts have already extended
Bivens to Eighth Amendment adequate medical care cases, the Report in this case does not
explain how inmate cell assignments have anything to do with medical care—and thus this case

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is an improper extension of Bivens. Accordingly, the Government believes it is entitled to a de
novo review of pages four through nine of their motion for summary judgment.
The Court disagrees. Although the Government boldly asserts that this “fundamental
error infects the R&R” (Doc. 67, pp. 1), the Government’s position that this case does not
present an issue of medical care is troubling. The initial screening order makes it manifestly clear
why this case is an issue of medical care:
In order to state a claim for deliberate indifference to a serious
medical need, an inmate must show that he (1) suffered from an
objectively serious medical condition; and (2) that the defendant
was deliberately indifferent to a risk of serious harm from that
condition. The Seventh Circuit has found that “the need for a
mental illness to be treated could certainly be considered a serious
medical need.” Sanville v. McCaughtry, 266 F.3d 724, 734 (7th
Cir. 2001)
[. . .]
Plaintiff alleges that Defendants Walton, S. Byram, J. Byram,
Behle, and Patterson were all aware of his mental health
condition and the fact that being housed with a cellmate would
trigger his symptoms and lead to conflicts. He indicates that his
disruptive behavior, which led to disciplinary charges and his cell
and prison reassignments, was caused by his mental illness.
Rather
than
follow
the
longstanding
treatment
recommendations for Plaintiff to be housed in a single cell,
Defendants reassigned him to a three-person cell and then
transferred him to another prison.
(Doc. 12 at 9–10) (emphasis added). The Report is therefore not “infected” with a
fundamental error that expands Bivens liability to something beyond an issue of adequate
medical care. Since the Government’s objection here abjectly fails, the Court will not grant the
Government’s request for a de novo review of their entire motion for summary judgment on this
ground.
ii.

Whether the Right is “Sufficiently Clear”

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Next, the Government argues that the Report “define[d] the constitutional right at issue in
this case at an extremely high level of generality” rather than targeting the Eighth Amendment
issue here with a sufficient level of particularity. (Doc. 67, pp. 2.) This argument loops in with
the qualified immunity issue: qualified immunity is only abrogated when an official violates
“clearly established statutory or constitutional rights of which a reasonable person would have
known”. Harlow, 457 U.S. at 818 (emphasis added). The Government believes that since the
Report focused on the broad legal standard for Eighth Amendment claims of deliberate
indifference to serious medical needs, there has been no showing that the defendants violated a
clearly established constitutional right here.
This argument also fails. It is clearly established that the Eighth Amendment protects
inmates from a “deliberate indifference to a serious medical need”. Greeno v. Daley, 414 F.3d
645, 653 (7th Cir. 2005). In his complaint, Keller accuses the defendants of being deliberately
indifferent to his serious psychiatric condition (he has allegedly been diagnosed as a complex
trauma victim by the state of Illinois) by placing him in a three-man cell, rather than following
the longstanding treatment recommendations for Keller to be housed in a single cell. Keller also
clearly alleges that the defendants were all aware of his psychiatric condition and that they
deliberately ignored it while they managed the cell block. At this stage in the proceedings, the
Court must take all allegations in the complaint as true and accordingly, Keller has made the
proper showing for a plausible claim. Since he has done so, his Bivens Eighth Amendment claim
abrogates sovereign immunity. Carlson v. Green, 446 U.S. 14 (1980).
iii.

Sufficient Personal Involvement

The Government’s final argument is that the Report incorrectly finds sufficient personal
involvement of the named defendants in Count I: Walton, S. Byram, J. Byram, Behle, and

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Patterson. In the Report, Magistrate Judge Wilkerson explained the grounds for each defendants’
involvement. First, J. Byram allegedly gave a written response to Keller that denied one of his
requests to be transferred in light of his medical condition to a single-man cell. (Doc. 1-1, ¶ ¶ 2627.) Second, Behle, S. Byram, and Walton signed off on a mental health care level three transfer
of Keller that caused him to no longer reside in a single-man cell. (Id. at 32; Doc. 1-2, p. 22.)
And third, Patterson signed (and perhaps prepared) a Mental Health Transfer Summary report
that corresponded with Keller’s transfer. (Doc. 1-2, pp. 45-46.) The Government objects to these
findings and argues that none of these allegations or documents are sufficient to find personal
involvement, especially given the Supreme Court’s language in Ashcroft v. Iqbal: “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice”. 556 U.S. 662, 678 (2009).
The Court has reviewed this portion of the Report de novo and finds the Government’s
objections to be without merit with respect to all of the defendants other than Patterson. This
dilemma does not present an issue of “threadbare recitals of the elements” of an Eighth
Amendment violation, supported by mere conclusory statements. Keller here has provided
specific allegations and documents in support of his claims. First, with respect to J. Byram,
Keller alleges “[o]n May 22nd, 2014, at 10:55 AM, SHU review officer LT. J. Byram arrived at
plaintiff’s SHU cell with his written response” denying Keller’s request that he be
accommodated for his mental health issues. (Doc. 1-1, ¶¶ 26-27.) Next, Keller provided the
written form that shows Behle’s, S. Byram’s, and Walton’s signatures on the request to disregard
Keller’s treatment plan and transfer him. (Id. at 32; Doc. 1-2, p. 22.) Of course, it is possible that
as this case proceeds and discovery flourishes, the Government could prove at another stage that
these documents do not suffice to show personal involvement. But at the motion to dismiss stage,

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Keller has met his simple burden. Moreover, the Government’s intertwined argument that
vicarious liability is not available against defendant Walton fails for the same reason: he
personally signed off on the request that Keller be transferred to a different facility.
The Government’s objections regarding defendant Patterson are a different story. As
Magistrate Judge Wilkerson noted in the Report, Keller attached to his complaint a “Mental
Health Transfer Summary” report that Patterson appears to have either prepared or signed off on
in conjunction with Keller’s transfer. The Government points out that this form appears to be
merely a summary of Keller’s mental health history in advance of his transfer. And more
suspiciously, even Keller does not address the dubiousness of this document in his response to
the Government’s objections. (See Doc. 68.) The Government is correct that a doctor signing or
preparing a mental health history form does not suffice to violate the Eighth Amendment to the
United States Constitution. As such, the Court will dismiss defendant Patterson.
B.

Count III: Administrative Remedies

In its objection, the Government does not address the administrative remedies portion of
the Report. The Court has reviewed the entire file and finds no clear error in those unobjected
portions of the Report.
CONCLUSION
For the foregoing reasons, the Court ADOPTS in part and REJECTS in part the
Report (Doc. 66). Specifically, the Court adopts the Report as to all respects other than the
conclusion that Keller stated a plausible claim against defendant Patterson. Accordingly, the
Court:


GRANTS in part and DENIES in part the Motion to Dismiss Count I of Plaintiff’s
Complaint by C. Behle, J. Byram, S. Byram, M. Patterson, J. S. Walton (Doc. 39);

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

DISMISSES defendant M. Patterson from Count I of the Complaint;



DIRECTS the Clerk of Court to TERMINATE M. Patterson as a defendant in this case;
and



DENIES the Motion to Dismiss Count III of Plaintiff’s Complaint by J. Byram,
Nathaniel Bufford, Jr., C/O Cook, Dawn, Joey R Hampton, Sharon K Hicks, May, David
W Morris, Johnathan C Mowery, Josh Richardson, Jeff C Richey, Judd Andrew Snyder,
James W Tanner, Thompson, Thomas Richard Waters, Alexander Leif Will (Doc. 40).

IT IS SO ORDERED.
DATED: NOVEMBER 28, 2017

s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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