Owens v. Mason et al

Filing 16

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 10/21/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRONE OWENS, # B-09385,
Plaintiff,
vs.
MS. MASON, MARCUS MYERS,
CAROL McBRIDE,
JACQUELINE LASHBROOK,
JOHN BALDWIN,
WEXFORD MEDICAL SERVICES,
LARUE LOVE, C/O URASKI,
MEDICAL DIRECTOR (IDOC),
and MR. FLATT,
Defendants.

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Case No. 16-cv-774-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff,

currently

incarcerated

at

Pinckneyville

Correctional

Center

(“Pinckneyville”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims that various Defendants wrongly punished him with segregation for conduct
related to his serious mental illness, violated HIPAA by disclosing his mental health writings to
security staff, and retaliated against him. This case is now before the Court for a preliminary
review of the complaint pursuant to 28 U.S.C. § 1915A. Also before the Court are several
motions filed by Plaintiff, including a motion seeking a temporary restraining order (“TRO”) and
preliminary injunction (Docs. 10 and 12), a “Motion in Addendum” (Doc. 11), and a “Motion to
Fast Track” (Doc. 13).
Under § 1915A, the Court is required to screen prisoner complaints to filter out
non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
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complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that
refers to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton,
209 F.3d 1025, 1026-27 (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. Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that one of Plaintiff’s claims survives
threshold review under § 1915A.

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The Complaint
On May 11, 2016, Plaintiff wrote a kite to tell mental health staff that he was
hearing voices. Defendant Mason (a mental health worker) gave the document to Defendant
Uraski (Intelligence Officer) (Doc. 1, p. 7). The kite allegedly said that Plaintiff “was hearing
evil voices telling [him] to kill a security staff member because he’s trying to kill me already.
He told the lieutenant to give me the max.” Id. Plaintiff claims that the note had been altered to
make it appear that he was actually threatening to kill a staff member; instead, he was seeking
help from mental health staff. Plaintiff has been hearing voices since he was 13 years old and
has been diagnosed with serious mental illness. He has written to Mental Health at Pinckneyville
over 50 times, and has told Defendant Mason about these voices on many occasions. He
maintains that he would not and could not do what the voices instructed him to do, and what the
voices told him in his head was not a “threat.” (Doc. 1, pp. 7, 9).
Based on that kite, Plaintiff was charged with a disciplinary violation and, he
claims, was punished with six months in segregation. The complaint articulates several claims.
First, Defendants Mason, Myers, McBride, Lashbrook, Baldwin, Wexford Medical Services,
Love, Uraski, Flatt, and the Medical Director of the IDOC all conspired to violate the HIPAA
law, by creating a policy instructing mental health workers to disclose mental health writings to
security staff. These Defendants further conspired to violate Plaintiff’s rights by instituting a
policy to retaliate against seriously mentally ill inmates by placing them in segregation for
lengthy periods, and requiring them to remain in their cells for 24 hours a day despite a
settlement agreement to stop that policy.
Plaintiff claims that his due process rights were violated because two of the
officers who conducted his disciplinary hearing (Defendants McBride and Myers) are both

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Black, and IDOC policy states that two people of the same race should not serve on a hearing
committee (Doc. 1, p. 8). Just before the hearing, Defendant McBride stabbed Plaintiff in the
chest with a tightly-rolled wad of papers and verbally threatened him.

The incident was

witnessed by Defendants Myers and Pearce. During the hearing, Plaintiff was asked, “How do
you plea?” but was not allowed to explain, nor was his ticket read to him. Plaintiff later learned
that he was given six months in segregation. He now suffers from severe headaches and has
suicidal thoughts because he is kept in the cell 24 hours a day, which he claims is too long for a
seriously mentally ill inmate (Doc. 1, p. 8).

These conditions cause the voices to occur

constantly. Plaintiff wrote four grievances over these matters, but Defendant Flatt refuses to
answer them.
On July 7, 2016, Plaintiff received another ticket issued by Defendant Uraski,
based on another kite he had written to Defendant Mason. As with the first ticket, Plaintiff wrote
about the voices he hears, and Defendant Mason turned the note over to security. Plaintiff was
told he would get another six months in segregation. Defendant Mason explained that according
to Defendant Wexford, she was required to inform security about the voices. Plaintiff asserts
that now that he is required to be treated by the prison mental health providers, and is covered by
a proposed settlement agreement regarding mental health treatment, the mental health workers at
Pinckneyville are retaliating by giving his mental health documents to security (Doc. 1, p. 9).
Plaintiff summarizes several provisions of the settlement agreement in Rasho v. Baldwin, et al.,
Case No. 07-cv-1298-MMM (C.D. Ill. filed Nov. 7, 2007), and includes as an exhibit the
proposed settlement notice he received as a class member (Doc. 1, pp. 9, 16-17).
Plaintiff also provided a copy of the adjustment committee report on the May 11,
2016, disciplinary action (Doc. 1, pp. 13-14). This document reflects that Plaintiff was charged

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with “206 – Intimidation or Threats,” and pled guilty to the conduct of writing a note describing
voices that told him to kill a staff member.

Mental Health staff were contacted, and

recommended a segregation term of no more than three months because of Plaintiff’s serious
mental illness. According to this document, Plaintiff was in fact punished with three months in
segregation, and lost one month of good conduct credits.

Plaintiff did not include any

documentation relating to the July 7, 2016, disciplinary ticket with his complaint.
Plaintiff seeks compensatory and punitive damages, as well as a temporary
restraining order and preliminary injunction ordering his release from segregation (Doc. 1, p.
10).
Motions for Emergency TRO/Preliminary Injunction (Docs. 10 and 12)
The TRO/Preliminary Injunction motion at Doc. 10 is identical to the second
TRO/PI motion filed at Doc. 12, with the exception that Plaintiff included three pages of exhibits
with Doc. 10 that were not included with the motion at Doc. 12. In this motion, Plaintiff asserts
that he has been punished with segregation time for a total of nine months, which will not end
until February 4, 2017. He includes other new allegations that were not contained in the
complaint, including a claim that he was placed in segregation simply because he is seriously
mentally ill, and because he continues to file grievances and lawsuits (Doc. 10, p. 1). He further
alleges that Dr. Thakur (psychiatrist) instructed Defendant Mason to take action to get Plaintiff
out of segregation, and attempted along with Ms. Hayes (another mental health worker) to
convince security officials and Defendant Love to release Plaintiff from segregation, to no avail.
He states that Dr. Thakur told Defendant Mason that giving Plaintiff’s kite to security was
improper (Doc. 10, p. 2).
Plaintiff’s exhibits include a “Treatment Review Committee Hearing Summary”

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from June 20, 2016, noting that the committee considered whether to forcibly medicate Plaintiff,
but decided such action was not necessary (Doc. 10, pp. 6-7). He also attaches another copy of
the Notice of Proposed Settlement from Rasho v. Baldwin.
Motion in Addendum (Doc. 11)
This document includes more factual allegations that were not presented in
Plaintiff’s complaint, and presents several pages of additional exhibits, which it appears that
Plaintiff wants to add to his complaint. He states that grievances he had filed over the incidents
in the complaint were not answered in a timely fashion, violating his due process rights. He
asserts that he exhausted his administrative remedies (Doc. 11, pp. 1-2). Referring to the tickets
he received on July 6, 2016, he claims that he was subjected to double jeopardy because the
same ticket was heard twice, and he was allegedly given six months in segregation for those
infractions (Doc. 11, pp. 1-2).
Plaintiff includes copies of an Administrative Review Board response dated
August 15, 2016, and grievances filed on July 12, 2016, and May 30, 2016 (Doc. 11, pp. 3-4, 9).
He attaches a statement and a memorandum of law, explaining that he wrote down his problems
with hearing voices because his therapist told him to do so, and those writings were protected by
psychotherapist-patient privilege, thus should not have been shared with security staff (Doc. 11,
pp. 5-8).
Also included are three Final Summary Reports of the Adjustment Committee,
from two different charges dated July 6, 2016 (Doc. 11, pp. 10-15). The first report references
“Incident # 201601769/1-PNK” and the second is labeled “Incident # 201601769/2-PNK” (Doc.
11, pp. 10, 12). The third report is a “Revised” version of Incident # 201601769/1-PNK, which
shows an apparent correction of Plaintiff’s living unit number (PNK-R5-C-32) (Doc. 11, p. 14).

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The first report includes a charge of 206-Intimidation or Threats, and notes that a charge of 208Dangerous Communications was deleted. This charge stemmed from a note in which Plaintiff
wrote that he was hearing voices telling him to kill a security staff member (Doc. 11, pp. 10).
Plaintiff pled not guilty, stating that he wrote the note to Mental Health. He was punished with
three months in segregation, and had one month of good conduct credits revoked. The second
report showed that Plaintiff was charged with writing a letter threatening staff and wardens, also
stating “I know I need help with these voices. I hear plans to do it daily. Do not turn my
paperwork into I.A.” (Doc. 11, p. 12). Based on this letter, the committee found Plaintiff guilty
of both 206-Intimidation or Threats, and 208-Dangerous Communications. This time, he was
punished with only one month of segregation, but another month of good conduct credits was
revoked (Doc. 11, p. 12).
Merits Review Pursuant to 28 U.S.C. § 1915A
Initially, it must be noted that a litigant cannot amend or supplement the
allegations in a complaint by adding new legal claims in a piecemeal fashion, as Plaintiff has
attempted to do here with the motions at Docs. 10, 11, and 12. In accordance with Federal Rule
of Civil Procedure 8(a), such piecemeal amendments are not permitted. Instead, all claims
against all defendants must be set forth in a single document. However, the exhibits Plaintiff
submitted along with his motions may be considered to the extent they assist in evaluating the
claims in the original complaint.
Based on the allegations of the complaint, 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. Any other claim

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that is mentioned in the complaint but not addressed in this Order should be considered
dismissed without prejudice.
Count 1: Defendants Mason, Myers, McBride, Lashbrook, Baldwin, Wexford
Medical Services, Love, Uraski, Flatt, and the Medical Director of the IDOC
conspired to violate Plaintiff’s rights under HIPAA, by creating a policy
instructing mental health workers to disclose mental health writings to security
staff;
Count 2: Defendants Mason, Myers, McBride, Lashbrook, Baldwin, Wexford
Medical Services, Love, Uraski, Flatt, and the Medical Director of the IDOC
conspired to violate Plaintiff’s rights by instituting a policy to retaliate against
seriously mentally ill inmates by placing them in segregation for lengthy periods,
and requiring them to remain in their cells for 24 hours a day, in violation of the
settlement agreement in Rasho v. Baldwin, which applies to Plaintiff as a class
member;
Count 3: Defendants Mason, Uraski, McBride, Myers, and Lashbrook subjected
Plaintiff to unconstitutional conditions of confinement in segregation in light of
his serious mental health condition, by requiring him to remain in his cell for 24
hours a day;
Count 4: Defendants McBride and Myers, who are both Black, violated
Plaintiff’s due process rights by conducting his disciplinary hearing on the May
11, 2016, charge in violation of the IDOC policy prohibiting two officers of the
same race from serving on a disciplinary committee;
Count 5: Defendants Mason and Uraski improperly subjected Plaintiff to
disciplinary sanctions based on written communications to his mental health
providers that should not have been disclosed to security staff;
Count 6: Defendant Mason turned over Plaintiff’s privileged mental health
communications to security staff, in retaliation for the requirement to provide
mental health treatment to Plaintiff pursuant to the terms of the settlement
agreement in Rasho v. Baldwin, of which Plaintiff is a class member.
Count 3 shall proceed for further consideration in this action. However, Counts 1,
2, 4, 5, and 6 shall be dismissed for failure to state a claim upon which relief may be granted.
Dismissal of Count 1 – Conspiracy to Violate HIPAA
For the purpose of this merits review under § 1915A, the Court takes Plaintiff’s
allegations as true, and assumes that Plaintiff's private mental health information was improperly
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disclosed. Nonetheless, Plaintiff's claim in Count 1, which is based on the Health Insurance
Portability and Accountability Act (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996),
must fail. The Seventh Circuit has held that “HIPAA does not furnish a private right of action.”
Carpenter v. Phillips, 419 F. App’x 658, 659 (7th Cir. 2011) (citing Acara v. Banks, 470 F.3d
569, 570-72 (5th Cir. 2006)); see also Doe v. Bd. of Trs. of Univ. Ill., 429 F. Supp. 2d 930, 944
(N.D. Ill. 2006) (“HIPAA provides civil and criminal penalties for improper disclosures of
medical information, but it does not create a private cause of action, leaving enforcement to the
Department of Health and Human Services alone.”). Only the Secretary of Health and Human
Services may pursue sanctions if a HIPAA violation has occurred. 42 U.S.C. § 1320d-5(a)(1).
See also Dodd v. Jones, 623 F.3d 563, 569 (8th Cir.2010); Seaton v. Mayberg, 610 F.3d 530, 533
(9th Cir. 2010); Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010). Consequently,
Plaintiff cannot bring a claim for the alleged HIPAA violation.
Likewise, the conspiracy claim cannot stand. Conspiracy is 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). Thus, an alleged conspiracy to
violate HIPAA states no claim, where Plaintiff cannot maintain an action for a HIPAA violation
in the first place. Count 1 shall be dismissed with prejudice for failure to state a claim upon
which relief may be granted.
Dismissal of Count 2 – Conditions of Segregation Confinement Violate Rasho v. Baldwin
Settlement
According to the allegations in the complaint, Plaintiff is a member of the plaintiff
class in Rasho v. Baldwin, because he has been diagnosed with a serious mental illness and is in

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the custody of the IDOC. Certain provisions of the settlement agreement in Rasho 1 thus apply to
Plaintiff’s confinement in segregation.
Plaintiff’s sweeping assertion that Defendants Mason, Myers, McBride,
Lashbrook, Baldwin, Wexford Medical Services, Love, Uraski, Flatt, and the Medical Director
of the IDOC conspired to adopt a policy to retaliate against seriously mentally ill inmates and
violate the Rasho settlement agreement by placing them in segregation for lengthy periods and
requiring them to remain in their cells for 24 hours a day, has no factual support in the complaint.
However, if the conditions of Plaintiff’s segregation confinement indeed require him to remain in
his cell 24 hours per day without weekly access to out-of-cell time, he may have an argument
that Defendant Baldwin has failed to comply with the provisions of the Rasho settlement
agreement, which he signed in his official capacity. 2 Plaintiff may also have a potential claim
that the conditions of his confinement run afoul of the Eighth Amendment’s prohibition against
cruel and unusual punishment – that claim shall be reviewed in Count 3 below.
The Rasho case sought injunctive relief only, in order to remedy the alleged
problems of inadequate access to mental health treatment within Illinois prisons, as well as
frequent and extended punishment of mentally ill inmates with isolation/segregation which has
exacerbated their mental health problems. The court in Rasho has noted that an inmate who
wishes to seek damages arising from his particular circumstances of incarceration must do so in
an individual action, as Plaintiff has done here (See, e.g., Rasho docket entries (TEXT ONLY
1

See Rasho v. Baldwin, Case No. 07-cv-1298-MMM (C.D. Ill. filed Nov. 7, 2007). The court’s Order of
May 23, 2016, accepting the parties’ Settlement Agreement is found at Doc. 710 in that case. The
Amended Settlement Agreement is filed at Doc. 711-1.
2
Under the Rasho Settlement Agreement, mentally ill offenders who are in disciplinary segregation for
more than 16 days are to receive “weekly unstructured out-of-cell time” of an amount equivalent to the
time allowed for all other segregation inmates, unless the inmate’s individual treatment plan calls for
more out-of-cell time (Doc. 711-1, p. 18, in Rasho). In addition, mentally ill offenders who are in
segregation for longer than 60 days must be given eight hours per week of out-of-cell time (Doc. 711-1,
pp. 18-20, in Rasho).
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ORDERS) dated 5/18/2016, 9/16/2016, 9/26/2016).

Because the terms of the settlement

agreement do not provide for the payment of money damages, Plaintiff would not be entitled to
compensation even if he demonstrates that Defendants failed to comply with the settlement terms
in his case. Furthermore, the Rasho court has made it clear that individualized relief of any kind
shall not be considered or ordered in the context of that class action case (See Rasho docket
entries (TEXT ONLY ORDERS) dated 9/16/2016, 9/26/2016).

Class members who have

submitted letters and motions in Rasho regarding their individual concerns, or moved for
enforcement of the settlement agreement, have been advised to proceed through the IDOC’s
grievance process and/or to contact class counsel. 3 The court has further directed class counsel
to review a number of individual motions and letters which were filed of record in that case (See,
e.g., Rasho docket entries (TEXT ONLY ORDERS) dated 6/30/2016, 8/19/2016, 8/30/2016). In
keeping with this approach, Plaintiff is ADVISED to inform the Rasho class attorneys of his
concerns regarding the implementation of the terms of the settlement agreement as they relate to
his circumstances, if he has not already done so.
Plaintiff is seeking injunctive relief in the form of an order releasing him from
segregation altogether. The Rasho settlement does not provide for such relief, but does establish
a mechanism and schedule for review of the segregation status and disciplinary outcomes of
certain seriously mentally ill offenders. Plaintiff’s complaint and motions do not indicate that he
has sought or undergone such a review of his status. The time frame for conducting such
reviews has not yet expired.
If Plaintiff were to instead request injunctive relief to require that he be provided
with the out-of-cell time specified in the Rasho settlement (which to date he has not done), this

3

Plaintiff was supplied with the contact information for the attorneys representing the Rasho plaintiff
class on his notice of the proposed settlement in the case (Doc. 1, pp. 16-17).
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Court is skeptical that it could consider or order such a remedy. The Rasho case is still pending
in the Central District of Illinois, and it would be improper for this Court to insert itself into that
pending case in order to determine whether or not Defendants have complied with the terms of
the settlement. For these reasons, Plaintiff’s claim in Count 2 that Defendants are in violation of
the terms of the settlement agreement in Rasho shall be dismissed from this action without
prejudice.
Count 3 – Eighth Amendment – Conditions of Segregation Confinement
The Eighth Amendment prohibition on cruel and unusual punishment forbids
unnecessary and wanton infliction of pain, and punishment grossly disproportionate to the
severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v. Georgia,
428 U.S. 153, 173 (1976)). Prison conditions that deprive inmates of basic human needs – food,
medical care, sanitation, or physical safety – may violate the Eighth Amendment. Rhodes, 452
U.S. at 346; see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).
Claims under the Eight Amendment have both an objective and subjective
component. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); see also Wilson v. Seiter, 501
U.S. 294, 302 (1991). The objective conditions must have resulted in an unquestioned and
serious deprivation of basic human needs or deprived the inmate of the minimal civilized
measure of life’s necessities. Rhodes, 452 U.S. at 347; accord Jamison-Bey v. Thieret, 867 F.2d
1046, 1048 (7th Cir. 1989); Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987).
The subjective component of unconstitutional punishment focuses on the state of
mind of the defendant. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992); Wilson, 501 U.S.
at 298; see also McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994). In conditions of confinement
cases, this is deliberate indifference to inmate health or safety. See, e.g., Farmer v. Brennan, 511

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U.S. 825, 837 (1994); Wilson, 501 U.S. at 303; Estelle v. Gamble, 429 U.S. 97, 104 (1976);
DelRaine v. Williford, 32 F.3d 1024, 1032 (7th Cir. 1994). The deliberate indifference standard
is satisfied if the plaintiff shows that the prison official acted or failed to act despite the official’s
knowledge of a substantial risk of serious harm from the conditions. Farmer, 511 U.S. at 842.
A failure of prison officials to act in such circumstances suggests that the officials actually want
the prisoner to suffer harm. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). It is wellsettled that mere negligence is not enough. See, e.g., Davidson v. Cannon, 474 U.S. 344, 347-48
(1986).
In the present case, Plaintiff’s allegations suggest a claim that his 24/7
confinement in segregation, without any opportunity for recreation, exercise, or unstructured
time outside his cell, may have subjected him to cruel and unusual punishment by aggravating
the symptoms he suffers as a result of his serious mental illness. Addressing concerns for the
physical health of prisoners, the Seventh Circuit has noted that a “[l]ack of exercise could rise to
a constitutional violation where movement is denied and muscles are allowed to atrophy, and the
health of the individual is threatened.” Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988);
French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). The
appellate court has expanded that observation to include a concern for the mental health of
prisoners with reference to their need for adequate exercise:
In recent years we have not only acknowledged that a lack of exercise can rise to
a constitutional violation, French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1986),
but have concluded that “exercise is now regarded in many quarters as an
indispensable component of preventive medicine.” Anderson v. Romero, 72 F.3d
518, 528 (7th Cir. 1995). Given current norms, exercise is no longer considered
an optional form of recreation, but is instead a necessary requirement for physical
and mental well-being.
Delaney v. DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001). At this early stage, Plaintiff’s

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complaint contains sufficient allegations to suggest that his lengthy confinement in segregation
without the opportunity to leave his cell subjected him to an objectively serious risk of harm to
his mental health.
As to the subjective component of the Eighth Amendment claim, the complaint
indicates that Defendants Mason, Uraski, McBride, Myers, and Lashbrook were aware of
Plaintiff’s serious mental health needs, and his assertions that the segregation conditions
aggravated his symptoms.
conditions.

However, they apparently did not take steps to mitigate those

Plaintiff may thus proceed with an Eighth Amendment claim against these

Defendants. However, Defendants Baldwin, Love, Flatt, and the IDOC Medical Director shall
be dismissed from this claim without prejudice, as the complaint does not suggest that they were
personally involved in maintaining Plaintiff’s confinement under these conditions. Defendant
Wexford Medical Services (“Wexford”) shall also be dismissed from this claim, because there
are no facts suggesting that the segregation conditions were imposed pursuant to a policy
promulgated by Wexford. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th
Cir. 2004) (corporation can be held liable only if it had a policy or practice that caused the
alleged violation of a constitutional right).
To summarize, the Eighth Amendment claim in Count 3 against Defendants
Mason, Uraski, McBride, Myers, and Lashbrook, for violating Plaintiff’s constitutional rights by
depriving him of access to out-of-cell exercise, recreation, and/or unstructured time during his
confinement in segregation while he suffered from a serious mental health condition, shall
proceed for further review.
Dismissal of Count 4 – Due Process Violation
This claim is based on Plaintiff’s assertion that the May 11, 2016, disciplinary

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proceeding conducted by Defendants McBride and Myers violated his rights under the due
process clause of the Fourteenth Amendment. He argues that IDOC policy prohibits two officers
of the same race from serving on a disciplinary committee, and concludes that because these two
Defendants are African-American, the hearing did not comport with due process requirements.
However, even if the racial composition of the disciplinary committee failed to comply with
IDOC policy, that fact does not violate the Constitution and thus does not give rise to a federal
claim cognizable in a civil rights action.

A federal court does not enforce state law or

regulations. Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert.
denied, 489 U.S. 1065 (1989); Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526
(7th Cir. 2001).
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court set out the
minimal procedural protections that must be provided to a prisoner in disciplinary proceedings in
which the prisoner loses good time, is confined to a disciplinary segregation, or otherwise
subjected to some comparable deprivation of a constitutionally protected liberty interest. Id. at
556-572. Notably, the racial composition of the tribunal is not a factor in this analysis.
Wolff required that inmates facing disciplinary charges for misconduct be
accorded [1] 24 hours’ advance written notice of the charges against them; [2] a
right to call witnesses and present documentary evidence in defense, unless doing
so would jeopardize institutional safety or correctional goals; [3] the aid of a staff
member or inmate in presenting a defense, provided the inmate is illiterate or the
issues complex; [4] an impartial tribunal; and [5] a written statement of reasons
relied on by the tribunal. 418 U.S. at 563-572.
Hewitt v. Helms, 459 U.S. 460, 466 n.3 (1983). The Supreme Court has also held that due
process requires that the findings of the disciplinary tribunal must be supported by some
evidence in the record.

Superintendent v. Hill, 472 U.S. 445, 455 (1985); McPherson v.

McBride, 188 F.3d 784, 786 (7th Cir. 1999). Even a meager amount of supporting evidence is

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sufficient to satisfy this inquiry. Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).
Plaintiff’s complaint does not show that his May 11, 2016, disciplinary hearing
failed to comply with the basic due process protections outlined in Wolff. He admitted that he
wrote the note that gave rise to the disciplinary charge. His position was that the note did not
represent a threat, but instead was written in an effort to seek mental health care. Plaintiff’s
defense, however, did not prevail. The note itself provided “some evidence” to support the
guilty finding on the disciplinary charge.
For these reasons, Plaintiff’s due process claim in Count 4, based on the racial
composition of his hearing committee, fails to state a claim upon which relief may be granted.
This count shall be dismissed with prejudice.
Dismissal of Count 5 – Challenge to Disciplinary Sanctions Based on Communications
Directed to Mental Health
Plaintiff seeks damages as well as an order requiring Defendants to release him
from segregation, arguing that it was improper to bring disciplinary charges against him based on
his written communications to Defendant Mason. He asserts that Defendant Mason should not
have shared his notes with security staff, both because of HIPAA restrictions and because he
wrote the notes for the purpose of seeking mental health treatment. He claims he was not
making an actual threat to harm anybody, but was merely reporting what the voices in his head
were telling him to do. He never intended to act out what the voices told him.
Regardless of whether Plaintiff invokes HIPAA, doctor-patient privilege, or some
other theory, his claim is an attack on the validity of the disciplinary actions that resulted in his
punishment with segregation. As demonstrated by the reports of the Adjustment Committee that
heard the disciplinary charges, Plaintiff was not only punished with segregation, but also lost part
of his accumulated good conduct credits in each case. Nowhere does he claim or indicate that
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any of these disciplinary actions have been reversed or expunged.
In Muhammad v. Close, 540 U.S. 749 (2004) (per curiam), the Supreme Court
recognized that some prisoner civil rights cases straddle the line between what is actionable
under § 1983, and what should instead be instituted in a habeas corpus action under 28 U.S.C.
§ 2254.
Challenges to the validity of any confinement or to particulars affecting its
duration are the province of habeas corpus; requests for relief turning on
circumstances of confinement may be presented in a § 1983 action. Some cases
are hybrids, with a prisoner seeking relief unavailable in habeas, notably damages,
but on allegations that not only support a claim for recompense, but imply the
invalidity either of an underlying conviction or of a particular ground for denying
release short of serving the maximum time of confinement.
Muhammad, 540 U.S. at 750-51 (citations omitted).

Muhammad is based on two related

decisions: Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641
(1997).

In Heck, the Supreme Court held that a § 1983 action for damages that “would

necessarily imply the invalidity of [a plaintiff’s] conviction or sentence” is not cognizable until
the conviction or sentence has been reversed, expunged, invalidated, or called into question by a
federal court’s issuance of a writ of habeas corpus. 512 U.S. at 486-87. For purposes of this
analysis, “the ruling in a prison disciplinary proceeding is a conviction.” Moore v. Mahone, 652
F.3d 722, 723 (7th Cir. 2011) (citing Balisok; Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir.
2008)). In Balisok, the Supreme Court held that claims that “necessarily imply the invalidity of
the deprivation of [the prisoner’s] good-time credits” are not actionable under § 1983 unless the
prison disciplinary decision has been invalidated, even though the restoration of credits is not
sought as a remedy. 520 U.S. at 646-68.
Plaintiff’s documents show that he lost one month of good conduct credit on each
of the disciplinary actions that landed him in segregation. Although his complaint does not

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request restoration of this lost good conduct time, under Balisok, he nonetheless may not
maintain an action at this juncture for damages based on his placement in segregation for the
same disciplinary offenses.

A finding in favor of Plaintiff in this § 1983 claim would

“necessarily imply” that the disciplinary action was invalid, and would therefore run afoul of
Heck and its progeny. The same is true for Plaintiff’s current request for an injunction to release
him from disciplinary segregation, which is also based on his claim that the disciplinary
proceedings were invalid.

Thus, his civil rights claim only ripens when the disciplinary

decisions have been reversed or otherwise invalidated. See Simpson v. Nickel, 450 F.3d 303,
306-07 (7th Cir. 2006). Because the complaint indicates that the disciplinary actions remain in
full force, Plaintiff’s claims in Count 5 must be dismissed.
The dismissal shall be without prejudice, however, to Plaintiff raising his claim,
should he wish to do so, if and when the disciplinary actions that revoked the good conduct time
and extended the duration of his confinement are overturned. Plaintiff may be able to pursue
relief in a federal habeas corpus case, after presenting his claim to the Illinois state courts. This
includes appealing any adverse decision to the Illinois Appellate Court and the Illinois Supreme
Court. The Illinois courts, for example, have recognized mandamus as an appropriate remedy to
compel prison officials to award or restore sentence credit to a prisoner. See 735 ILL. COMP.
STAT. 5/14-101 et seq.; Turner-El v. West, 811 N.E.2d 728, 733 (Ill. App. 2004) (citing Taylor v.
Franzen, 417 N.E.2d 242, 247, aff’d on reh’g, 420 N.E.2d 1203 (Ill. App. 1981)).
Count 5 shall therefore be dismissed without prejudice.
Dismissal of Count 6 - Retaliation
Finally, Plaintiff asserts that Defendant Mason turned over his privileged mental
health communications to security staff, as an act of retaliation. He claims that this retaliation

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stemmed from the outcome of Rasho v. Baldwin, which requires prison staff to provide mental
health treatment to Plaintiff.
Prison officials may not retaliate against inmates for filing grievances or
otherwise complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680
F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v.
Carter, 224 F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v.
Lane, 857 F.2d 1139 (7th Cir. 1988). In order to plead a retaliation claim, a plaintiff must
identify the protected activity on his part, and describe the act(s) of retaliation that were allegedly
prompted by his complaint, grievance, or other protected activity. See Higgs v. Carver, 286 F.3d
437, 439 (7th Cir. 2002) (“All that need be specified is the bare minimum facts necessary to put
the defendant on notice of the claim so that he can file an answer.”).
It is true that Plaintiff is a member of the sizeable plaintiff class of inmates whose
interests are represented in Rasho v. Baldwin. However, Plaintiff’s complaint in this action does
not reveal any participation or activity on his part related to the ongoing litigation in Rasho. A
retaliation claim includes the requirement that the inmate bringing such a claim took some action
– typically lodging a complaint, voicing a protest, or filing a lawsuit – which is protected by the
First Amendment, and then suffered some adverse action connected to the protected activity.
Here, nothing in Plaintiff’s pleading or motions suggests that he did anything at all to trigger the
alleged retaliation. Merely meeting the criteria for membership in a litigation class, without any
other involvement in the lawsuit, is not sufficient to meet the “protected activity” factor in a
retaliation claim.
Furthermore, Plaintiff’s claim of retaliation implies that the prison mental health
staff only recently became obligated to treat his mental illness as a result of the Rasho settlement.

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However, Plaintiff’s own documents 4 demonstrate that he has been receiving mental health
treatment in Pinckneyville since at least September 2014, long before the May 23, 2016,
settlement agreement in Rasho. Thus, there was no change in Plaintiff’s eligibility for mental
health services that would have any logical connection to a “retaliation” event on May 11, 2016,
when Defendant Mason turned over his note.
For these reasons, the retaliation claim in Count 6 shall be dismissed without
prejudice.
Pending Motions
Plaintiff’s motions for recruitment of counsel (Docs. 2, 8, & 15) shall be referred
to the United States Magistrate Judge for further consideration.
The motion for service of process at government expense (Doc. 3) is GRANTED
IN PART AND DENIED IN PART. Service shall be ordered below on those Defendants who
remain in the action. No service shall be made on the dismissed Defendants.
Plaintiff filed two duplicate “Emergency” motions seeking a TRO and
preliminary injunction (Docs. 10 & 12). The motions request this Court to order his “immediate
release from punitive segregation,” and order him to be transferred to another prison. The
motions also seek compensatory and punitive damages.
Plaintiff’s motions for injunctive relief are grounded on the same arguments that
underlie his request for damages – he claims that (1) the disciplinary charges against him were

4

See, e.g., Doc. 10, pp. 6-7, in which Plaintiff’s Treatment Review Committee noted that he “has a
history of mental health treatment services” for his diagnosis of Schizoaffective Disorder. He was
transferred to Pinckneyville from Lawrence Correctional Center in September 2014. Further, “Since his
incarceration with the IDOC, [Plaintiff] has been placed on multiple crisis watches due to suicidal
ideations and delusional thought processes as well as medication non-compliance.” Id. According to the
online records of the IDOC, Plaintiff has been in state custody since April 2013. Website of the Illinois
Department of Corrections, Offender Search page, http://www.illinois.gov/idoc/Offender/
Pages/InmateSearch.aspx (Last visited Oct. 20, 2016).
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improperly brought, because they were based on privileged communication given to Defendant
Mason and “illegally received” by those who charged him, and (2) he was falsely charged with
making a threat, and incorrectly found guilty of that offense. Essentially, Plaintiff is seeking to
overturn the disciplinary actions and his segregation term through the motions for injunctive
relief.
As discussed above under the section of this order dismissing Count 5, Plaintiff is
barred by the precedents of Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok,
520 U.S. 641 (1997), from maintaining a civil rights action where a grant of relief would
necessarily call into question the validity of a disciplinary “conviction,” unless that disciplinary
action has been expunged or reversed. See Muhammad v. Close, 540 U.S. 749 (2004) (per
curiam). If the Court were to grant the present motions for injunctive relief, such an order would
directly undermine Plaintiff’s prison disciplinary convictions, in violation of Heck, Balisok, and
Muhammad. Consistent with the dismissal of Count 5 herein, the Court therefore DENIES the
motions for TRO/preliminary injunction (Docs. 10 & 12), without prejudice.
Plaintiff’s Motion in Addendum (Doc. 11) contains new claims of due process
violations and double jeopardy that were not included in the complaint. To the extent that the
motion seeks to add these new claims to this case, it is DENIED. Such piecemeal amendments to

a complaint are not permitted. See FED. R. CIV. P. 8(a). All claims against all defendants must be
set forth in a single pleading. However, the documents submitted by Plaintiff along with his

motion (Doc. 11, pp. 3-15) shall be considered as additional exhibits to the original complaint, as
reflected herein.
The “Motion to Fast Track” (Doc. 13) renews Plaintiff’s request for an immediate
hearing on his TRO motion to be released from segregation, and asks for the matter to be

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assigned to a magistrate judge. This motion is GRANTED IN PART, in that Plaintiff’s claim
in Count 3 shall be referred to the magistrate judge for further consideration, and the Defendants
involved in that claim shall be served. All other relief requested in the motion (Doc. 13) is
DENIED.
Disposition
COUNTS 1 and 4 are DISMISSED with prejudice for failure to state a claim
upon which relief may be granted. COUNTS 2, 5, and 6 are DISMISSED without prejudice for
failure to state a claim upon which relief may be granted. Defendants BALDWIN, WEXFORD
MEDICAL SERVICES, LOVE, MEDICAL DIRECTOR, and FLATT are DISMISSED
from this action without prejudice.
The Clerk of Court shall prepare for Defendants MASON, MYERS, McBRIDE,
LASHBROOK, and URASKI: (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. If a Defendant fails to sign and return the Waiver
of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent,
the Clerk shall take appropriate steps to effect formal service on that Defendant, and the Court
will require that Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
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.

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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 Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motions for recruitment of counsel (Docs. 2, 8, & 15).
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under § 1915, Plaintiff will be required to pay the full amount of the costs,
notwithstanding that his application to proceed in forma pauperis has been granted. See 28
U.S.C. § 1915(f)(2)(A).
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

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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 21, 2016

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

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