Minerly v. Nalley et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 8/10/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT MINERLY,
#K63470,
Plaintiff,
vs.
NICK NALLEY,
CATHERINE HUTCHISON,
CINDY MILLER,
ROBERT GADDIS,
ZACKARY ROECKEMAN,
and JASON GARNETT,
Defendants.

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Case No. 16-cv-00782-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Robert Minerly, an inmate who is currently incarcerated at Big Muddy
River Correctional Center (“Big Muddy”), brings this pro se civil rights action pursuant to
42 U.S.C. § 1983 against six officials at Big Muddy. According to the complaint, these officials
allegedly conspired to retaliate against Plaintiff for filing a grievance in March 2015 to complain
about the prison’s “orange crush” tactical team by terminating his employment in the prison’s
law library, among other things (Doc. 1, pp. 7-9). In connection with these events, Plaintiff sues
the following defendants for monetary damages and/or injunctive relief: Jason Garnett
(current warden), Zackary Roeckeman (former warden), Nick Nalley (internal affairs officer),
Catherine Hutchison (correctional counselor), Robert Gaddis (correctional counselor), and
Cindy Miller (correctional counselor).
The complaint is now subject to review pursuant to 28 U.S.C. § 1915A(a).
Under Section 1915A, the Court is required to promptly screen prisoner complaints to filter out
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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 upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
The complaint survives preliminary review under this standard.
The Complaint
On March 29, 2015, Plaintiff filed a grievance to complain about the “orange crush”
tactical team at Big Muddy (Doc. 1, pp. 7-9). The grievance was denied as untimely (id. at 7).
Plaintiff sent an appeal to the former director of the Illinois Department of Corrections (id.).
While the appeal was pending in late May, Officer Nalley called Plaintiff’s coworker,
Charles Dent, into his office to question Inmate Dent about the grievance. Officer Nalley is an
internal affairs officer, as well as a member of the prison’s “orange crush” tactical team. At the
end of their conversation, Officer Nalley instructed Inmate Dent to inform the rest of the prison’s
law clerks “that they better stop with the Orange Crush stuff” (id. at 8).
On June 2, 2015, Plaintiff lost his job as a prison law clerk, despite the fact that he had
held the position since December 2014. The same week, Officer Nalley also denied Plaintiff’s
request to work as a literacy tutor after citing “I.A. Concerns” (id.). Plaintiff’s subsequent
requests for enrollment in college classes and a therapeutic program were denied.
On June 22, 2015, Elijah Manuel, an inmate who Plaintiff assisted while working as a
law clerk, was taken to segregation for allegedly committing “some kind of forgery” (id.).
Plaintiff grew concerned about the situation and wrote a letter to Uptown People’s Law Center.
Five days later, Plaintiff was “green-passed” over to Officer Nalley’s office. The officer accused
him of “playing God behind the typewriter at the law library” (id. at 9). He badgered Plaintiff
about writing the grievance to complain about the prison’s tactical team. He also accused

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Plaintiff of assisting Inmate Manuel. The officer became irate when discussing “some 3 page
report” that referred to him “a number of times” (id. at 8). In the process, Officer Nalley told
Plaintiff that he would never work again because of his role in preparing a letter that inmates
used to communicate with a Chicago-based civil rights law firm (id. at 9).
Plaintiff claims that Officer Nalley retaliated against him for filing the grievance to
complain about the prison’s “orange crush” tactical team by terminating his employment as a
clerk in the prison’s law library and denying his access to work opportunities, college classes,
and therapeutic programs at Big Muddy (Doc. 1, pp. 7-9). He also asserts that
Warden Roeckeman, Counselor Hutchison, Counselor Gaddis, and Counselor Miller conspired
with Officer Nalley to “feign an investigation” into the grievance (id. at 7). Plaintiff seeks
monetary relief against them, including lost wages of $360.00 (id. at 10). He also seeks
reinstatement of his employment in the prison’s law library and placement in the prison’s
therapeutic program. In connection with his request for injunctive relief, Plaintiff names
Warden Garnett, the prison’s current warden, in his official capacity (id.).
Merits Review Under 28 U.S.C. § 1915A
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the
Court deems it appropriate to organize the claims in Plaintiff’s pro se complaint into the
following enumerated 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.
Count 1:

Defendant Nalley retaliated against Plaintiff for filing a
grievance to complain about the “orange crush” tactical team
by terminating his employment in the prison’s law library in
June 2015 and denying his access to other work opportunities,
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college classes, and therapeutic programs at Big Muddy
(Doc. 1, pp. 7-9).
Count 2:

Defendants Roeckeman, Gaddis, Miller, and Hutchison
entered into a conspiracy with Defendant Nalley to violate his
constitutional rights by “feign[ing] an investigation” into his
grievance (Doc. 1, p. 7).

As discussed in more detail below, Count 1 shall receive further review against
Defendant Nalley, and this claim shall be dismissed without prejudice against the remaining
defendants. Count 2 shall be dismissed without prejudice against all of the defendants for failure
to state a claim upon which relief may be granted. Warden Garnett shall remain named as a
defendant, in his official capacity only, for the sole purpose of carrying out any injunctive relief
that is ordered. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (when injunctive
relief is sought, it is generally appropriate to name the government official who is responsible for
carrying out the requested relief, in his or her official capacity).
Discussion
Count 1 – Retaliation
The complaint articulates a viable First Amendment retaliation claim (Count 1) against
Defendant Nalley. To state a claim, the allegations 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)). For screening
purposes only, the Court finds that all three elements of this claim are satisfied.
With respect to the first element, the allegations suggest that Plaintiff engaged in
protected activity when he prepared a grievance to complain about the prison’s “orange crush”

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tactical team. 1 A prisoner has a right under the First Amendment “to file his own truthful
grievances and federal lawsuits.” Harris, 604 F. App’x at 521 (citing Hasan v. U.S. Dep’t of
Labor, 400 F.3d 1001, 1005 (7th Cir. 2005)). It has long been held that 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).
Plaintiff’s preparation of a truthful grievance complaining about the tactical team is protected
activity. The first element of this claim is therefore satisfied.
With regard to the second element, the allegations also suggest that Plaintiff suffered a
deprivation that would likely deter future First Amendment activity. After filing the grievance,
Plaintiff was terminated from his employment and then denied access to work opportunities,
college classes, and therapeutic programs (Doc. 1, pp. 7-9).
As for the third element, the allegations suggest that Officer Nalley’s conduct was
motivated by Plaintiff’s grievance. When meeting with Plaintiff to discuss the matter,
Officer Nalley referred to the grievance several times. The officer tied Plaintiff’s decision to file
the grievance to his decision to terminate Plaintiff’s employment in the prison’s law library and

1

The Court does not find that Plaintiff’s efforts to assist Inmate Manuel in preparing his grievance
constituted protected activity that supports a retaliation claim; this claim is considered dismissed without
prejudice. At the time, Plaintiff was acting as a “jailhouse lawyer.” Certainly, he had a right to assist an
inmate, who is otherwise unable to help himself access the courts. Harris, 604 F. App’x at 521
(citing Johnson v. Avery, 393 U.S. 483, 487 (1969) (invalidating prison regulations prohibiting habeas
petitioners from getting assistance from jailhouse lawyer)). However, a jailhouse lawyer’s speech on legal
matters is not subject to unlimited protection. Id. It is subject to the same protections “normally accorded
prisoners’ speech.” Id. (citing Shaw v. Murphy, 532 U.S. 223, 231 (2001)). The complaint includes
allegations indicating that Inmate Manuel may have forged a signature on his grievance. No other
allegations suggest that Inmate Manuel’s grievance was truthful. This conduct is not protected under the
First Amendment and cannot support a retaliation claim.

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to exclude him from consideration of all other employment opportunities. The third element of
this claim is also satisfied for screening purposes.
Count 1 shall receive further review against Officer Nalley. This claim shall be
dismissed without prejudice against all other defendants because Plaintiff does not allege that
any of these individuals were involved in the retaliatory conduct against him.
Count 2 - Conspiracy
The complaint does not support a claim of conspiracy (Count 2) against the defendants.
Plaintiff only alleges that “Correctional Counselors Catherine Hutchison, Cindy Miller,
Robert Gaddis, and Chief Administrative Officer Zackary Roeckeman conspired with Internal
Affairs Officer Nick Nalley to feign an investigation and suppress any pertinent facts in [his]
grievance against Nick Nalley in their reports” (Doc. 1, p. 7). He offers no other allegations in
support of this claim.
Civil conspiracy claims are cognizable under § 1983. See Lewis v. Washington, 300 F.3d
829, 831 (7th Cir. 2002). However, these claims require some factual foundation to survive
preliminary review. Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). “To establish the existence of a conspiracy, a
plaintiff must demonstrate that the conspirators have an agreement to inflict injury or harm upon
him.” Sow v. Fortville Police Dep’t, 636 F.3d 293, 304-05 (7th Cir. 2011). “The agreement may
be inferred from circumstantial evidence, but only if there is sufficient evidence that would
permit a reasonable jury to conclude that a meeting of the minds had occurred and that the
parties had an understanding to achieve the conspiracy’s objectives.” Id. at 305
(quoting Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 263 (7th Cir. 1999)).

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The complaint includes no allegations to this effect. Beyond what the Court has already
quoted above, Plaintiff mentions nothing about the alleged conspiracy. His conclusory or bald
assertions will not support Plaintiff’s conspiracy claim, even at this early stage.
Accordingly, Count 2 shall be dismissed without prejudice against the defendants.
Pending Motions
Plaintiff filed a motion for service of process at government expense (Doc. 3), which is
hereby GRANTED in part, with respect to Defendants Nalley and Garnett, and DENIED in
part, with respect to Defendants Roeckeman, Gaddis, Miller, and Hutchison.
Plaintiff also filed a motion for recruitment of counsel (Doc. 6), which shall be
REFERRED to United States Magistrate Judge Stephen C. Williams for a decision.
Disposition
IT IS HEREBY ORDERED that COUNT 1 is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted against Defendants ROECKEMAN,
GADDIS, MILLER, HUTCHISON, and GARNETT (in his individual capacity only);
COUNT 2 is DISMISSED without prejudice against all of the defendants for the same reason.
IT IS FURTHER ORDERED that Defendants ROECKEMAN, GADDIS, MILLER,
HUTCHISON, and GARNETT (in his individual capacity only) are DISMISSED without
prejudice from this action.
IT IS ALSO ORDERED that COUNT 1 is subject to further review against
Defendants NALLEY and GARNETT (in his official capacity only). As to COUNT 1, the
Clerk of Court shall prepare for Defendants NALLEY and GARNETT: (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

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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. 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, including a decision on Plaintiff’s
motion for recruitment of counsel (Doc. 6).
Further, this entire matter shall be REFERRED to United States Magistrate Judge

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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 Section 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).
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: August 10, 2016
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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