Serio v. Westerman et al
ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 10/11/2016. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAYMOND SERIO, #B-70625,
KIMBERLY C. BUTLER,
and UNKNOWN PARTY,
Case No. 16-cv-00763-SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Raymond Serio, an inmate who is currently incarcerated at Pontiac Correctional
Center, brings this civil rights action pursuant to 42 U.S.C. § 1983 against four officials at
Menard Correctional Center. In the Complaint (Doc. 1), Plaintiff claims that these officials
retaliated against him for filing grievances by denying him access to his personal property,
including his legal materials, and subjecting him to cruel and unusual punishment (Doc. 1, pp. 131). Plaintiff now sues the following Menard officials for violating his federal rights under the
First, Eighth and Fourteenth Amendments, as well as Illinois state law: Warden Kimberly Butler,
C/O Westerman, C/O Mullholland and C/O John Doe (unknown correctional officer).
Plaintiff seeks declaratory judgment, monetary damages and injunctive relief (id. at 12, 31-33).
This case is now before the Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A.
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
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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). The Complaint survives preliminary review
under this standard.
Plaintiff transferred from Stateville Correctional Center (“Stateville”) to Menard
Correctional Center (“Menard”) on October 15, 2014 (Doc. 1, p. 5). Prior to his transfer, an
inventory was taken of Plaintiff’s personal property. All of his possessions were listed on an
offender personal property sheet.
For the first two weeks after his transfer to Menard, Plaintiff was denied access to his
personal property boxes. 1 On October 28, 2014, he received two property boxes. However, he
was not provided with a copy of the personal property inventory that was created at Stateville
(id.). Plaintiff claims that the following items were missing: (1) 1 RCA flat screen television;
(2) 1 pair of Koss C-L 20 headphones; (3) 12 bottles of acrylic paint; (4) 40 paintbrushes; (5) 1 18” x 24” pad of water color paper; (6) 40 colored pens; (7) 50 colored pencils; (8) 25 markers;
(9) miscellaneous family photos; (10) 1 ruler; (11) 2 Gun Digest books; (12) 1 lamp with bulb;
(13) 1 clip-on book light; (14) sweatpants; (15) gym shorts; (16) sweatshirt; (17) tattoo books;
(18) 5 crewneck t-shirts; (19) 1 pad of tracing paper; (20) JVC ear buds; (21) 2 blue bed sheets;
(22) 2 blue pillow cases; (23) 2 hairbrushes; (24) 1 thermal top; (25) 1 thermal bottom;
(26) 2 towels; (27) 1 West Bend fan; (28) 1 pair of Nike gym shoes; (29) 1 waterproof folder;
and (30) 1 bowl (id. at 6).
Plaintiff explains that he was initially placed on a “security hold” and housed in Menard’s health care
unit because he arrived at the facility with a “walking crutch” (id. at 5).
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On October 29, 2014, Plaintiff wrote grievances to Counselor Rowold 2 and
Warden Butler to complain about his missing property (id. at 7). Counselor Rowold assured
Plaintiff that she would “look into the matter” (id.). While he awaited the counselor’s response,
Plaintiff continued writing grievances, including emergency grievances, to Warden Butler.
He “begged” the warden to intervene (id.).
On November 11, 2014, Plaintiff was escorted to the personal property office, where he
met with an unknown correctional officer, who is referred to herein as “C/O John Doe” (id. at 8).
C/O Doe told Plaintiff that he had become a “pain in [the] ass” (id.). The correctional officer
then pulled out a list of Plaintiff’s missing personal property and a grievance Plaintiff addressed
to the warden. As he reviewed the list, C/O Doe told Plaintiff why he could not have each of the
items listed (id. at 9).
C/O Doe denied having a box of Plaintiff’s legal materials, but he ordered an inmate
worker to retrieve Plaintiff’s other personal property (id.). The inmate worker returned with
three clear plastic bags of property as well as an unsealed cardboard box (id. at 10). The box
contained privileged legal materials. C/O Doe asked Plaintiff if this was the “shit [he had] been
crying about” (id.). Plaintiff confirmed that it was. He was then given an opportunity to sort
through the box and take legal materials that he needed in his cell. After Plaintiff finished
sorting through the box, C/O Doe failed to seal it (id. at 11).
C/O Doe then refused to turn over several items of confiscated personal property to
Plaintiff, including his headphones, paintbrushes and paints (id. at 12-13).
Counselor Rowold was not named as a defendant in this action, and Plaintiff does not state any claim
against this individual. When parties are not listed in the caption, this Court will not treat them as
defendants, and any claims against them should be considered dismissed without prejudice. See FED. R.
CIV. P. 10(a) (noting that the title of the complaint “must name all the parties”); Myles v. United States,
416 F.3d 551, 551-52 (7th Cir. 2005) (holding that to be properly considered a party, a defendant must be
“specif[ied] in the caption”).
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threatened C/O Doe with litigation over the issue, C/O Doe said, “[Y]ou want to act like a
lawyer. I’m going to burn you[.] [Y]ou’re not going to get shit. You already fucked up and
filed a grievance on us and keep complaining to the warden.
I promise its [sic] over[.]
[Y]ou will never see any of this shit again[.] [Y]ou have my word” (id. at 14). At that, Plaintiff
was escorted back to his cell. He continued to complain about his missing property in grievances
that he addressed to the assistant warden and Warden Butler, to no avail.
On January 24, 2015, Plaintiff asked a lieutenant to send his television to the vocational
school for repair. C/O Westerman visited Plaintiff’s cell to discuss the matter. She walked right
up to the bars and said, “[W]ho the fuck do you think you are?” (id.). When Plaintiff asked
C/O Westerman what she was talking about, she told him to “stop writing my officers up in
personal property” (id. at 15). She too promised Plaintiff that he would never see his property
again. In addition, C/O Westerman told Plaintiff that she would make his life a “living hell”
On June 4, 2015, three correctional officers (i.e., Hanks, Mullholland and an unknown
officer 3) approached Plaintiff’s cell and pounded on the window (id. at 16). Plaintiff and his
cellmate were instructed to cuff up. When Plaintiff showed the officers his medical permit for a
double cuff due to a “really messed up shoulder,” C/O Mullholland said, “I don’t care about
this[.] [T]urn around and cuff up” (id.). C/O Mullholland then cuffed both of Plaintiff’s wrists
behind his back. He “jerked” Plaintiff by his cuffs and slammed his head twice “off the wall”
(id. at 16-17). When Plaintiff became dizzy and staggered, C/O Mullholland smashed his face
against the wall again and again. As he did so, the officer said, “[Y]ou want to fuck with my
family, . . . [h]uh, you want to fuck with my people you fuck? [L]isten to me, this is Menard I
C/O Hanks and the unknown officer are not named as defendants in this action, and any claims against
them are considered dismissed without prejudice. See Myles, 416 F.3d at 551-52.
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can do whatever I want to you, believe me you can die in this cellhouse. Keep fucking with my
family and see what happens to you” (id. at 17). The unknown correctional officer then strip
searched Plaintiff and his cellmate.
For weeks after this incident, Plaintiff suffered from
excruciating pain in his head, right shoulder and neck (id. at 19). The Complaint is silent about
the medical care he requested or received for these alleged injuries.
When Plaintiff returned to his cell, he found his property scattered everywhere while his
cellmate’s property was “hardly touched” (id. at 18).
Family photos of deceased family
members were shredded and floating in the toilet. Legal papers were also torn up and other
property was smashed. Several affidavits that Plaintiff obtained from fellow inmates after the
January incident involving C/O Westerman were missing from his legal property. Plaintiff later
learned that C/O Westerman is related to C/O Mullholland (id.).
Plaintiff realized that “his life was sincerely at risk” (id. at 19). He had heard stories over
the years about other inmates being beaten to death by officers at Menard. In “complete terror,”
Plaintiff was unable to sleep, eat or perform basic tasks (id.). He was overwhelmed by anxiety,
fear and depression. In November or December, an officer 4 who worked in the television repair
shop asked Plaintiff to “turn[ ] over” his television for repairs and, when Plaintiff refused, simply
told Plaintiff that the television was no longer his (id. at 20).
Plaintiff transferred to Pontiac Correctional Center (“Pontiac”) on December 30, 2015
(id.). He received his legal boxes from Menard’s storage on January 17, 2016. Instead of the
sealed boxes, Plaintiff received a paper bag containing some of the documents that he stored in
the legal boxes (id. at 21). Missing from the collection were privileged legal documents and
evidence that he intended to use in state court to challenge his criminal conviction. He could no
This officer is also not named as a defendant in the caption of the complaint or in the list of defendants.
All claims against this individual are therefore considered dismissed without prejudice.
See Myles, 416 F.3d at 551-52.
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longer find affidavits from affiants who had since died. Also missing were three civil rights
Complaints that he prepared with the assistance of a jailhouse lawyer for filing against officials
in the Illinois Department of Corrections (id.).
Plaintiff now brings claims against Warden Butler, C/O Doe, C/O Westerman and
C/O Mullholland for violations of his federal rights under the First, Eighth and Fourteenth
Amendments, as well as his rights under Illinois state law. He seeks declaratory judgment,
monetary damages and injunctive relief (id. at 31-33).
Merits Review Under 28 U.S.C. § 1915A
Based on the allegations, the Court finds it convenient to divide the pro se Complaint 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 regarding their merit.
On or around November 11, 2014, Defendant Doe retaliated
against Plaintiff for filing grievances to complain about missing
property by denying Plaintiff access to his personal property
and improperly storing his legal materials in violation of the
First and Fourteenth Amendments (id. at 22-24).
On January 24, 2015, Defendant Westerman retaliated against
Plaintiff for filing grievances to complain about missing
property by threatening to withhold his property from him
and to make his life a “living hell” in violation of the First and
Fourteenth Amendments (id. at 24-25).
On June 4, 2015, Defendant Mullholland retaliated against
Plaintiff for filing grievances to complain about his missing
property by using excessive force against him and confiscating
or destroying his personal property during a cell shakedown in
violation of the First, Eighth and Fourteenth Amendments
(id. at 24-25).
Defendant Butler failed to adequately train and/or supervise
Defendants Doe, Mullholland and Westerman and also turned
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a blind eye to their misconduct in violation of the First, Eighth
and Fourteenth Amendments (id. at 26-27).
Defendants conspired to violate Plaintiff’s constitutional rights
in an effort to protect one another from liability (id. at 29-30).
Illinois state law claim for replevin under 735 ILCS § 5/19-101,
et seq., against Defendants Doe and Butler (id. at 28).
Illinois battery claim against Defendant Mullholland (id. at 2829).
Illinois state law claim for intentional infliction of emotional
distress against all of the defendants (id. at 30-31).
As discussed in more detail below, the Eighth Amendment excessive force claim against
Defendant Mullholland in Count 3 is subject to further review, along with the state law claims
for battery in Count 7 and intentional infliction of emotional distress in Count 8. However, all
other claims are subject to dismissal and Plaintiff’s request for injunctive relief is subject to
Claims Subject to Further Review
Excessive Force (Count 3)
The Complaint articulates an Eighth Amendment excessive force claim against
Defendant Mullholland. The intentional use of excessive force by prison guards against an
inmate without penological justification constitutes cruel and unusual punishment in violation of
the Eighth Amendment. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d
607, 619 (7th Cir. 2000). To state an excessive force claim, an inmate must show that an assault
occurred and that “it was carried out ‘maliciously and sadistically’ rather than as part of ‘a goodfaith effort to maintain or restore discipline.’”
Wilkins, 559 U.S. at 40 (citing Hudson v.
McMillian, 503 U.S. 1, 6 (1992)).
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The allegations in the Complaint suggest that Defendant Mullholland may have engaged
in the malicious and sadistic use of excessive force against Plaintiff at Menard on June 4, 2015.
Allegedly and without provocation, this defendant cuffed Plaintiff behind his back
(despite the fact that Plaintiff showed him a front cuff permit) and repeatedly slammed Plaintiff’s
head into a wall while threatening him. Given these allegations, the excessive force claim
against Defendant Mullholland in Count 3 is subject to further review. However, this claim
shall be dismissed with prejudice against all other defendants.
State Law Claims (Counts 7 and 8)
Where a district court has original jurisdiction over a civil action such as a Section 1983
claim, it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C.
§ 1367(a), so long as the state claims “derive from a common nucleus of operative fact” with the
original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008).
“A loose factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495
(7th Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299
(7th Cir. 1995)).
Here, the Court has original jurisdiction over Plaintiff’s Section 1983 action. Because the
tort claims and federal claims arise from the same facts, the district court also has supplemental
jurisdiction over Plaintiff’s related state law claims for battery (Count 7) and intentional
infliction of emotional distress (Count 8). Each of these state tort claims is discussed below.
Battery (Count 7)
Under Illinois state law, “[a] battery occurs when one ‘intentionally or knowingly without
legal justification and by any means, (1) causes bodily harm to an individual or (2) makes
physical contact of an insulting or provoking nature with an individual.’” Smith v. City of
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Chicago, 242 F.3d 737, 744 (7th Cir. 2001) (quoting 720 ILL. COMP. STAT. 5/12–3(a)).
The Complaint addresses each element of this claim against Defendant Mullholland.
Accordingly, Count 7 against Defendant Mullholland warrants further review. However, the
claim is subject to dismissal against all other defendants with prejudice because they are not
named in connection with the incident that occurred on June 4, 2015.
Intentional Infliction of Emotional Distress (Count 8)
The Court also cannot dismiss the intentional infliction of emotional distress claim
against Defendant Mullholland. Under Illinois law, a plaintiff claiming intentional infliction of
emotional distress must demonstrate that the defendant(s) 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); see Lopez v. City of Chi., 464 F.3d 711,
720 (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 defendant’s 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. 1993)).
The allegations in the Complaint satisfy these requirements for screening purposes. At
this early stage, the Court will allow Plaintiff to proceed with Count 8 against Defendant
Mullholland. However, this claim shall be dismissed with prejudice against all other defendants,
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none of whom are named in connection with the incident that occurred on June 4, 2015.
Claims Subject to Dismissal
Retaliation (Counts 1, 2 and 3)
The Complaint supports no claim of retaliation against Defendants Doe (Count 1),
Westerman (Count 2) or Mullholland (Count 3), even at this early stage. To state a retaliation
claim under the First Amendment, the allegations in the Complaint must at least suggest that:
(1) Plaintiff engaged in protected First Amendment activity; (2) he suffered a deprivation that
would likely deter future First Amendment activity; and (3) the protected activity caused the
deprivation. Harris v. Walls, 604 F. App’x 518, 521 (7th Cir. 2015) (citing Watkins v. Kasper,
599 F.3d 791, 794 (7th Cir. 2010); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).
Plaintiff must allege a “chronology of events from which retaliation can be inferred,” and show
that retaliation was the motivating factor for the actions. Black v. Lane, 22 F.3d 1395, 1399 (7th
Cir. 1994); Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977).
Plaintiff alleges that the act of filing a grievance(s) on or around October 29, 2014
triggered the retaliation by Defendant Doe on November 11, 2014 (Count 1), by Defendant
Westerman on January 24, 2015 (Count 2), and by Defendant Mullholland on June 4, 2015
Filing a non-frivolous, truthful grievance is protected activity under the First
See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); Walker v.
Thompson, 288 F.3d 1005 (7th Cir. 2002); Babcock v. White, 102 F.3d 267 (7th Cir. 1996);
Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). Because the allegations in the Complaint suggest
that Plaintiff may have engaged in protected First Amendment activity when he filed
grievance(s) to complain about missing personal property, the first component of this claim is
satisfied for screening purposes.
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The question then becomes whether Plaintiff suffered a deprivation that likely deters
future First Amendment activity and, if so, whether the protected conduct triggered the
deprivation. The allegations suggest that Plaintiff suffered two deprivations—a denial of access
to his personal property and a denial of access to the courts. As discussed in more detail below,
neither the denial of Plaintiff’s access to his personal property nor his legal materials is of
constitutional magnitude in this case, but this does not doom Plaintiff’s claim for retaliation.
Actions taken against a prisoner in retaliation for exercising a constitutional right may state a
claim under § 1983, even if the retaliatory act itself does not violate a constitutional right.
Matzker v. Herr, 748 F.2d 1142, 1151-52 (7th Cir. 1984), abrogated on other grounds by,
Salazar v. Chicago, 940 F.2d 233, 240-41 (7th Cir. 1991). For screening purposes, the second
component of this claim is also satisfied.
The retaliation claims fail because the allegations do not suggest that Plaintiff’s
grievance(s) were a motivating factor in the retaliatory action. Greene v. Doruff, 660 F.3d 975,
979 (7th Cir. 2011).
Plaintiff was denied access to his personal property before he filed
grievance(s) to complain about this deprivation. That is, after all, why he filed the grievance(s).
In response, Defendant Doe met with Plaintiff on November 11th and explained the reason for
denying access to each item. Plaintiff summarizes this discussion in the Complaint. He does not
allege that the items were incorrectly withheld. Despite referring to Plaintiff as a “pain in the
ass,” Defendant Doe immediately responded to Plaintiff’s request for his property and his legal
boxes by having an inmate worker locate this property. Defendant Doe then gave Plaintiff an
opportunity to sort through his legal boxes and take selected materials to his cell. In light of
these allegations, the Court cannot find that the protected activity (i.e., filing grievance(s) on or
around October 29, 2014) resulted in the denial of access to Plaintiff’s personal property.
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That deprivation predated the grievance(s). As such, the retaliation claim in Count 1 shall be
dismissed without prejudice against Defendant Doe.
The retaliation claim against Defendant Westerman does not survive preliminary review
because the Complaint discloses no actual acts of retaliation that are attributable to this
defendant. To support any claim under § 1983 against this defendant, Plaintiff must demonstrate
that Defendant Westerman was personally involved in a constitutional violation. Harris v.
Greer, 750 F.2d 617, 618 (7th Cir. 1984). See also Pepper v. Village of Oak Park, 430 F.3d 809,
810 (7th Cir. 2005) (citations omitted) (To “be liable under [Section] 1983, an individual
defendant must have caused or participated in a constitutional deprivation.”). While it may be
true that Defendant Westerman threatened to make Plaintiff’s life a “living hell” on January 24,
2015, the Complaint identifies no affirmative steps taken by this defendant to follow through on
this threat. Similarly, Defendant Westerman’s threat to withhold property after it was already
withheld from Plaintiff supports no claim against this defendant. Plaintiff must establish a causal
connection between a threat of retaliation and the subsequent retaliatory act. See Higgs v.
Carver, 286 F.3d 437, 439 (7th Cir. 2002); see also Bridges, 557 F.3d at 551 (the mere threat of
retaliation states no claim for relief).
Threats, alone, do not suffice to state a claim.
Accordingly, the retaliation claim in Count 2 against Defendant Westerman shall be dismissed
Finally, the retaliation claim against Defendant Mullholland must also be dismissed for
the same reason. Plaintiff fails to establish a causal connection between the protected conduct
(i.e., filing grievance(s) on or around October 29, 2014) and retaliatory action of Defendant
Mullholland on June 4, 2015.
More than six months passed between Plaintiff’s protected
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conduct and Defendant Mullholland’s alleged use of excessive force. 5 Although Plaintiff alleges
that Defendant Mullholland targeted him for mistreatment because of the grievances, the
allegations suggest no such thing. Defendant Mullholland said nothing about the grievances.
Rather, he accused Plaintiff of messing with “his family” (Doc. 1, p. 17). Plaintiff speculates
that Defendants Westerman and Mullholland are related. However, the Complaint draws no
connection between the grievance(s) Plaintiff filed to complain about missing property and the
alleged Eighth Amendment violation that occurred on June 4, 2015. The connection between the
protected conduct and the retaliatory action of Defendant Mullholland is too tenuous to support a
claim against this defendant. Accordingly, the retaliation claim in Count 3 against Defendant
Mullholland shall be dismissed without prejudice.
Denial of Property Without Due Process (Counts 1, 2 and 3)
The Complaint supports no independent Fourteenth Amendment claim against
Defendants Doe (Count 1), Westerman (Count 2) or Mullholland (Count 3) based on the denial
of access to Plaintiff’s personal property. To state a claim under the Fourteenth Amendment Due
Process Clause, Plaintiff must establish a deprivation of liberty or property without due process
of law and if the state provides an adequate remedy, Plaintiff has no civil rights claim. Hudson
v. Palmer, 468 U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is
an adequate, post-deprivation remedy). The Seventh Circuit has found that Illinois provides an
adequate post-deprivation remedy in an action for damages in the Illinois Court of Claims.
Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999) (citations omitted) (“A prisoner has
adequate process where an adequate post-deprivation remedy is available to redress unauthorized
There is no indication that Defendant Mullholland searched Plaintiff’s cell and confiscated his legal
papers. Therefore, the deprivation at issue in Count 3 is more appropriately characterized as the
deprivation of Plaintiff’s right to be free from cruel and unusual punishment and not the denial of access
to his property.
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confiscations of property.”). Accordingly, this claim shall be dismissed without prejudice to
Plaintiff separately pursuing relief in the Illinois Court of Claims.
Denial of Access to Courts (Counts 1, 2 and 3)
The Complaint does not support a no access-to-courts claim against the defendants. To
state a claim, a plaintiff must explain “the connection between the alleged denial of access to
legal materials and an inability to pursue a legitimate challenge to a conviction, sentence, or
prison conditions,” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal quotation and
citation omitted); accord Guajardo Palma v. Martinson, 622 F.3d 801, 805-06 (7th Cir. 2010).
This requires Plaintiff to identify the underlying claim that was lost.
See Christopher v.
Harbury, 536 U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007).
In this case, Plaintiff generally alleges that his legal boxes were not sealed properly.
When he inventoried the boxes more than a year later, he discovered that certain items were
missing. In addition, several affidavits and Complaints were allegedly taken or destroyed during
the cell shakedown that occurred on June 4, 2015. However, Plaintiff does not allege that any
particular defendant was personally involved in the loss of this property, defeating any separate
access-to-courts claim against them. Harris, 750 F.2d at 618. Further, the Complaint fails to
identify what consequences, if any, befell Plaintiff because he lacked access to these materials.
See, e.g., Johnson v. Barczak, 338 F.3d 771, 773 (7th Cir. 2003) (internal questions and citation
omitted) (no access-to-courts claim stated where Plaintiff failed to mention any action that
resulted “in actual substantial prejudice to specific litigation”).
The court access claim is
therefore subject to dismissal without prejudice against the defendants.
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Supervisory Liability (Count 4)
The Complaint articulates no claim against Defendant Butler for failing to intervene and
stop the alleged retaliation of Defendants Doe, Westerman and Mullholland. As previously
stated, the underlying retaliation and property claim against these defendants fails. So, too, must
any claim arising from the warden’s role as their supervisor. There is no concept of supervisory
liability under § 1983. See, Harris, 750 F.2d at 618 (citations omitted). Accordingly, Count 4 is
dismissed without prejudice against Defendant Butler and with prejudice against all other
defendants. Plaintiff’s request for injunctive relief, which pertains to the return of his personal
property, is also subject to denial; it is therefore not necessary to name the warden, in his or her
official capacity, for purposes of carrying out any injunctive relief that is ordered.
Moreover, no independent claim arises against Defendant Butler for mishandling
Plaintiff’s grievances. Prison grievance procedures are not constitutionally mandated and thus
do not implicate the Due Process Clause per se. As such, the alleged mishandling or denial 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).
Civil Conspiracy (Count 5)
The civil conspiracy claim against the defendants also fails. Plaintiff’s vague assertion
that the defendants conspired to cover up their acts of retaliation against him is insufficient to
support a conspiracy claim. Allegations of a conspiracy have routinely been held to a higher
pleading standard than other allegations. See Geinosky v. City of Chicago, 675 F.3d 743, 740
(7th Cir. 2012) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Under
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Twombly, the Complaint must allege a “plausible account of a conspiracy.” Id. The mere
suspicion of a conspiracy will not suffice. Likewise, conclusory allegations of a conspiracy give
rise to no claim.
Further, conspiracy is also not an independent basis of liability in § 1983 actions. See
Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008); Cefalu v. Vill. of Elk Grove, 211 F.3d 416,
423 (7th Cir. 2000). “There is no constitutional violation in conspiring to cover-up an action
which does not itself violate the Constitution.” Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996).
In light of the fact that no retaliation, property, or access-to-courts claim is stated against the
defendants in the Complaint, Plaintiff’s claim of a conspiracy to cover up these acts fails.
Further, no defendants, other than Defendant Mullholland, are mentioned in connection with the
excessive force claim. In light of these considerations, the conspiracy claim in Count 5 shall be
dismissed without prejudice.
Replevin (Count 6)
Plaintiff’s claim of replevin under 735 ILCS § 5/19-101 shall also be dismissed without
prejudice to Plaintiff pursuing relief in state court. The Court declines to exercise supplemental
jurisdiction over this claim under 28 U.S.C. § 1367 because it is unrelated to the excessive force
claim against Defendant Mullholland that shall be allowed to proceed in this action. Ho-Chunk
Nation, 512 F.3d at 936 (court may exercise supplemental jurisdiction under § 1367(a) only if
stated claims “derive from a common nucleus of operative fact” with the federal claims). Thus,
without addressing the merits of this claim, the Court deems it appropriate to dismiss Count 6
without prejudice to Plaintiff separately pursuing relief in Illinois state court.
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Plaintiff’s Motion for Appointment of Counsel (Doc. 4) shall be REFERRED to a
United States Magistrate Judge for handling.
IT IS HEREBY ORDERED that, because they fail to state a claim upon which relief
may be granted, COUNTS 1, 2, and 3 (except the Eighth Amendment excessive force claim
against Defendant Mullholland) are DISMISSED without prejudice against Defendants DOE,
WESTERMAN, and MULLHOLLAND, respectively; COUNT 4 is DISMISSED without
prejudice against Defendant BUTLER and with prejudice against all other defendants; and
COUNT 5 is DISMISSED without prejudice against all of the defendants. Finally, COUNT 6
is DISMISSED without prejudice to Plaintiff pursuing relief in Illinois state court, this Court
having declined to exercise supplemental jurisdiction of the claim pursuant to 28 U.S.C. § 1367.
IT IS ALSO ORDERED that Plaintiff’s request for injunctive relief is DENIED
because it pertains only to the return of personal property and all such claims have been
IT IS FURTHER ORDERED that the Eighth Amendment excessive force claim in
COUNT 3, the Illinois battery claim in COUNT 7 and the Illinois intentional infliction of
emotional distress claim in COUNT 8 against Defendant MULLHOLLAND are subject to
further review. With regard to COUNTS 3, 7, and 8, the Clerk of Court shall prepare for
Defendant MULLHOLLAND: (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 (Doc. 1) and this Memorandum and Order to each
Defendant’s place of employment as identified by Plaintiff. If a Defendant fails to sign and
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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.
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 Defendant (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 Defendant 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.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Reona J. Daly for further pre-trial proceedings, including a decision on Plaintiff’s Motion
for Appointment of Counsel (Doc. 4) pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c),
if all parties consent to such a referral. Further, this entire matter shall be REFERRED to
United States Magistrate Judge Daly for disposition, pursuant to Local Rule 72.2(b)(2) and
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28 U.S.C. § 636(c), if all parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, regardless of the fact
that his application to proceed in forma pauperis was 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: October 11, 2016
s/ STACI M. YANDLE
United States District Judge
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