Reyes v. IDOC et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 9/26/2016. (tjk)

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

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JAIRO REYES,
Plaintiff,
vs.
ILLINOIS DEPARTMENT OF
CORRECTIONS,
MICHAEL P. ATCHISON,
SALVADOR GODINEZ,
RICHARD HARRINGTON,
KIMBERLY BUTLER,
WATSON, JONES,
HASEMEYER, COWAN,
HUGHES, REICHERT,
JOSHUA SHOENBECK,
RANDY CLARK, REBECCA CREASON,
BARBARA MUELLER, JONAH HILL,
BRAD BRAMLET, OLSON,
LORI OAKLEY, LINDA CARTER,
MARVIN BOCHANTIN, JOHN DOE 1,
JOHN DOE 2, JOHN DOE 3, and
JOHN DOE 4,
Defendants.

–0826 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Jairo Reyes, an inmate in Pontiac Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 for events that occurred at
Menard Correctional Center. Plaintiff seeks injunctive relief, as well as compensatory and
punitive damages. This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
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prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
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 any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint and the supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of this action are subject to
summary dismissal.
The Complaint
According to the allegations of the complaint, John Doe 1 placed Plaintiff in
administrative detention on April 8, 2013. (Doc. 1, p. 3). John Doe 2 approved the placement.
(Doc. 1, p. 3). Plaintiff did not receive any formal written or oral notice or a hearing prior to the
placement. (Doc. 1, p. 3). The Illinois Administrative Code directs that Plaintiff should have
received a hearing after 90 days. (Doc. 1, p. 3). See 20 ILL. ADMIN. CODE § 504.660. But Warden

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Atchison allegedly implemented a policy of not giving hearings until an inmate had been in
administrative detention for 270 days. (Doc. 1, p. 3). Specifically, he created a three-tiered
system of administrative detention where a hearing was held to determine whether an inmate
should be stepped down to a less restrictive level every 90 days. (Doc. 1, p. 3). Plaintiff was
ultimately not released from administrative detention until December 2, 2015. (Doc. 1, p. 3).
Plaintiff submitted grievances, including one dated August 18, 2013, regarding his
placement to counselor Jonah Hill. (Doc. 1, p. 3). The Administrative Review Board (“ARB”)
ultimately rejected Plaintiff’s grievance, and Godinez signed off on the grievance. (Doc. 1, p. 5).
On December 10, 2014, the grievance officer, Marvin Bochantin, refused to give Plaintiff more
information about his placement. (Doc. 1, p. 5). Counselor Brad Bramlet denied a grievance that
Plaintiff wrote on January 28, 2015, on the grounds that it was duplicative of Plaintiff’s other
grievances. (Doc. 1, p. 5). Lori Oakley and Butler affirmed the grievance. (Doc. 1, p. 5).
Plaintiff was so frustrated by his placement in administrative detention that he went on a
hunger strike. (Doc. 1, p. 3). Finally, on June 25, 2014, Plaintiff was given an official notice
regarding his placement. The notice was signed by Shoenbeck and stated that “information from
a confidential informant was received that [Plaintiff] directed other Latin Folks affiliates to
assault staff at Menard.” (Doc. 1, p. 4). This was the first time that Plaintiff was given any reason
for his placement in administrative detention. (Doc. 1, p. 4). Plaintiff denies that he ever ordered
Latin Folks to assault staff. (Doc. 1, p. 4).
A hearing was held on July 2, 2014, fifteen months after Plaintiff was placed in
administrative detention. (Doc. 1, p. 4). The committee was comprised of Butler, Jones, Reichert,
Hasemeyer, Shoenbeck, Creason, and John Doe 3. (Doc. 1, p. 4). Plaintiff told the committee
that he was innocent. (Doc. 1, p. 4). The committee decided to advance Plaintiff from phase 1 to

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phase 2. (Doc. 1, p. 4). On September 23, 2014, Plaintiff was informed that he would be
advanced against from phase 2 to phase 3. (Doc. 1, p. 4). Plaintiff’s placement was reviewed
again on December 16, 2014, this time by Butler, Watson, and Clark, and they determined that
Plaintiff should stay in phase 3. (Doc. 1, p. 5).
While in administrative detention, Plaintiff was isolated away from the rest of the
population in a steel-door fronted cell. (Doc. 1, p. 5). The cell lacked hot water for approximately
ten months. (Doc. 1, p. 6). Plaintiff filed grievances to Mueller and informed staff that he lacked
hot water. (Doc. 1, p. 6). Plaintiff’s cell also lacked heat, and it had a three inch gap in the
window that would not close. (Doc. 1, p. 6). Plaintiff alleges that he became ill as a result of
these conditions. (Doc.1, p. 6). In the summer, Plaintiff’s cell was hot, and his wing did not have
the same kind of industrial fans present on other wings. (Doc. 1, p. 6). Other prisoners were
given ice water twice a day, but Plaintiff only received ice water three times over the course of
the summer. (Doc. 1, p. 6). Water would also leak from the ventilation that smelled. (Doc. 1, p.
6). Plaintiff lacked cleaning supplies and found vermin and mice feces in his cell. (Doc. 1, p. 6).
He submitted a grievance on this issue that was rejected by Counselor Hill. (Doc. 1, p. 6).
Discussion
Based on the allegations of the complaint, the Court finds it convenient to divide the pro
se action into three 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:
Count 1:

Plaintiff’s Fourteenth Amendment due process rights were
violated when Godinez, Atchison, Harrington, Butler, Watson,
Jones, Hasemeyer, Cowan, Hughes, Hill, Bramlet, Mueller,
Oakley, Carter, Bochantin, Creason, Reichert, Shoenbeck,
Clark, Olson, and John Does 1-3 caused Plaintiff to be placed
into administrative segregation for an extended period of time;

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Count 2:

Plaintiff was incarcerated in conditions of confinement that
violate the Eighth Amendment’s proscription on cruel and
unusual punishment when he was subjected to vermin,
excessive cold, inadequate sanitation, inadequate ventilation,
mold, and mildew by Godinez, Atchison, Harrington, Butler,
Watson, Jones, Hasemeyer, Cowan, Hughes, Olson, Hill,
Bramlet, Mueller, Oakley, Carter, Bochantin, Creason,
Shoenbeck, Clark, John Doe 4.

Count 3:

Claim for indemnification against all Defendants.

As an initial matter, Plaintiff cannot maintain this suit against the Illinois Department of
Corrections. Not only has Plaintiff not directed any allegations towards that defendant, it is a
state government agency. The Supreme Court has held that “neither a State nor its officials
acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001)
(Eleventh Amendment bars suits against states in federal court for money damages); Billman v.
Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune
from suit by virtue of Eleventh Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th
Cir. 1991) (same); Santiago v. Lane, 894 F.2d 219, 220 n. 3 (7th Cir. 1990) (same). Thus, the
Illinois Department of Corrections will be dismissed with prejudice from this suit.
As to Count 1, a liberty interest under the due process clause may be implicated when
inmates are disciplined—if the discipline imposed infringes on rights protected “by the due
process clause of its own force” or where the sanction imposed on him amounts to an “atypical
or significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin
v. Conner, 515 U.S. 472, 484 (1995).
In Sandin, the Supreme Court found that a thirty-day assignment to segregated
confinement did not implicate a liberty interest under the Due Process Clause because it did not
“present a dramatic departure from the basic conditions of [the inmate’s] sentence.” Sandin, 515

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U.S. at 485. In Wilkinson v. Austin, the Court considered whether placement in an Ohio
supermax facility, the Ohio State Penitentiary (“OSP”), triggered protections under the Due
Process Clause. The Supreme Court concluded that the conditions at the Ohio supermax facility
were an atypical or significant hardship on inmates in relation to the ordinary incidents of prison
life, requiring that they be afforded due process before being transferred there. Wilkinson v.
Austin, 545 U.S. at 224.
When a liberty interest is implicated, the Supreme Court has held that informal, nonadversarial procedures may suffice. See Hewitt v. Helms, 459 U.S. 460 (1983). At a minimum,
informal due process requires “some notice” of the reasons for the inmate’s placement. Hewitt,
459 U.S. at 476; see also Westefer v. Snyder, 422 F.3d 570, 590 (7th Cir. 2005) (“the district
court will have to evaluate with particular care whether the prisoner is given sufficient notice of
the reasons for his transfer to afford meaningful opportunity to challenge his placement . . . For
those in administrative status, the lack of any pre-transfer hearing may require close
examination.”).
Plaintiff has alleged facts suggesting that the conditions in administrative detention at
Menard are constitutionally deficient. In addition, he asserts that he was never afforded even
minimal due process protections because he did not receive any notice until he had already been
in administrative detention for over a year. Giving Plaintiff the benefit of the inferences to which
he is entitled at the pleadings stage, his claim that Defendants transferred him to administrative
detention at Menard without affording him minimum, informal due process states a plausible
Fourteenth Amendment claim under the standards set forth in Wilkinson v. Austin. Plaintiff may
proceed on this claim against Defendants Atchison, Harrington, Butler, Watson, Jones,

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Hasemeyer, Cowan, Hughes, Carter, Creason, Reichert, Shoenbeck, Clark, Olson, and John Does
1-3.
Count 1 will be dismissed with prejudice, however, as to Defendants Mueller, Hill,
Godinez, Bochantin, Bramlet, Oakley, and Carter. Plaintiff has attempted to attach liability to
these defendants based on their participation in the institutional grievance process. As an initial
matter, although Plaintiff has tried to state a claim against Mueller in Count 1, he never alleges
that she participated in grievances related to his placement in administrative detention, and a
review of Plaintiff’s exhibits shows that she did not sign off on any of the grievances that
addressed the placement in administrative segregation. Thus it does not appear that Mueller had
any involvement in Plaintiff’s placement in administrative segregation. In order to be held
individually liable, a defendant must be “personally responsible for the deprivation of a
constitutional right.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez
v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978). Mueller will be dismissed with prejudice from Count 1.
As to the other grievance defendants, prison grievance procedures are not constitutionally
mandated and thus do not implicate the Due Process Clause per se. The alleged mishandling 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). While the Seventh Circuit has
stated that a grievance may provide evidence of the requisite mental state for a deliberate
indifference claim, here, subjective knowledge of the situation is not a requirement of a due
process claim. Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015). Plaintiff does not have a

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claim against Defendants for his due process claim where their only involvement was responding
to grievances. Therefore, Defendants Hill, Godinez, Bochantin, Bramlet, Oakley, and Carter will
be dismissed from Count 1 with prejudice.
As to Count 2, in order to prevail on a claim attacking the conditions of confinement, a
plaintiff must allege facts that, if true, would satisfy the objective and subjective components
applicable to all Eighth Amendment claims. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994);
see also Wilson v. Seiter, 501 U.S. 294, 302 (1991). The objective analysis examines whether the
conditions of confinement exceed the contemporary bounds of decency of a mature civilized
society. Id. The condition must result in unquestioned and serious deprivations of basic human
needs or deprive inmates of the minimal civilized measure of life’s necessities. Rhodes v.
Chapman, 452 U.S. 337, 347 (1981); accord Jamison–Bey v. Thieret, 867 F.2d 1046, 1048 (7th
Cir. 1989); Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987).
In addition to showing objectively serious conditions, a plaintiff also must demonstrate
the subjective component of an Eighth Amendment claim. The subjective component requires
that a prison official had a sufficiently culpable state of mind. Wilson, 501 U.S. at 298; see also
McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994). In conditions of confinement cases, the
relevant state of mind is deliberate indifference to inmate health or safety; the official must be
aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he also must draw the inference. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837
(1994); Wilson, 501 U.S. at 303; Estelle v. Gamble, 429 U.S. 97, 104 (1976); Del Raine 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. Farmer, 511 U.S. at 842. A failure of prison officials to act

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in such circumstances suggests that the officials actually want the prisoner to suffer the harm.
Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).
It is well-established that inmates, under the Eighth Amendment, “have a right to
protection from extreme cold.” See Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). To
assess whether cold cell temperatures constitute cruel and unusual punishment, courts must
consider factors including “the severity of the cold; its duration; whether the prisoner has
alternative means to protect himself from the cold; the adequacy of such alternatives; as well as
whether he must endure other uncomfortable conditions as well as cold.” Id. at 644.
Here, Plaintiff alleges that the heat in his cell was not working for several months in the
middle of winter and that it was very cold. Furthermore, he was only allowed to shower once,
maybe twice a week. The rest of the time, Plaintiff had to use the water from his sink to maintain
his personal hygiene, but the hot water in the sink was not working. Thus, in order to stay clean,
Plaintiff had to wash his body in a cold cell using cold water. Plaintiff also alleges that there was
vermin in his cell and that he was not given adequate cleaning supplies. He also alleges that his
cell did not have adequate ventilation and that water leaked into his cell. Accepting Plaintiff’s
allegations as true, as the Court must do at this preliminary stage, the Court finds that Plaintiff
has adequately alleged facts suggesting that the conditions in his cell were “sufficiently serious.”
He also has alleged facts that, if true, would suggest that the conditions were caused by the acts
or omissions of Defendants, whom he contends were notified of the conditions but failed to
address the problems. At this juncture, more facts are needed to determine whether that was in
fact the case.
At this time, Plaintiff may proceed on this claim against Defendants Atchison,
Harrington, Butler, Watson, Jones, Hasemeyer, Cowan, Hughes, Hill, Mueller, Oakley, Carter,

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and John Doe 4 in their individual capacities. Because this claim implicates the deliberate
indifference standard, the Court will allow the claim to proceed against Defendants involved in
the grievance process, specifically Mueller, Hill, Oakley, Harrington, and Carter. Defendant
Godinez, Bramlet, and Bochantin, however, do not appear to have participated in responding to
Plaintiff’s grievances regarding his cell condition, as Plaintiff has not submitted any grievances
which they reviewed or identified the grievances in his statement of claim. Therefore, Godinez,
Bramlet, and Bochantin will be dismissed from Count 2 with prejudice. Likewise, although he
included them in his claim, Plaintiff did not actually allege that Olson, Creason, Shoenbeck, and
Clark ever knew about his conditions of confinement. Therefore, there is no allegation that these
defendants were personally involved in Plaintiff’s conditions of confinement claim, and they
must be dismissed without prejudice.
As to Count 3, this claim fails. While Plaintiff is correct that the State of Illinois has a
statutory obligation to indemnify its employees, this is a legal conclusion, not a theory of relief.
In dismissing this claim, the Court passes no judgment on whether or not the provisions cited by
Plaintiff apply to Defendants; the Court is dismissing Count 3 because it is not a separate
substantive claim, and its inclusion as one will only cause unnecessary confusion without adding
to the substance of the complaint.
Pending Motions
Plaintiff’s Motion to Appoint Counsel will be referred to a Magistrate Judge for
disposition. (Doc. 3). The complaint also requests a preliminary injunction, but as Plaintiff is no
longer incarcerated at Menard Correctional Center, he is not entitled to one. Higgason v. Farley,
83 F.3d 807, 811 (7th Cir. 1996). Therefore, to the extent contains a request for a preliminary
injunction, it is DENIED.

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Disposition
IT IS HEREBY ORDERED that Counts 1 and 2 survive threshold review. Count 1
proceeds against Defendants Atchison, Harrington, Butler, Watson, Jones, Hasemeyer, Cowan,
Hughes, Creason, Reichert, Shoenbeck, Clark, Olson, and John Does 1-3. Defendants Mueller,
Hill, Godinez, Bochantin, Bramlet, Oakley, and Carter are DISMISSED without prejudice
from Count 1. Count 2 proceeds against Atchison, Harrington, Butler, Watson, Jones,
Hasemeyer, Cowan, Hughes, Hill, Mueller, Oakley, Carter, and John Doe 4. Count 2 will be
dismissed without prejudice against Godinez, Bramlet, Bochantin, Olson, Creason, Shoenbeck,
and Clark. Defendants Godinez, Bramlet, and Bochantin will be DISMISSED without
prejudice from this action. Defendant Illinois Department of Corrections is DISMISSED with
prejudice. The Clerk of the Court is also DIRECTED to update Defendant Unknown Party to
“John Doe 1,” “John Doe 2,” “John Doe 3,” and “John Doe 4.”
IT IS HEREBY ORDERED that COUNT 3 fails to state a claim upon which relief may
be granted, and thus it is DISMISSED with prejudice.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Atchison,
Harrington, Butler, Watson, Jones, Hasemeyer, Cowan, Hughes, Reichert, Shoenbeck, Clark,
Creason, Mueller, Hill, Olson, Oakley, and Carter: (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,

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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.
Service shall not be made on the Unknown (John Doe) Defendants until such time as
Plaintiff has identified them by name in a properly filed amended complaint. Plaintiff is
ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and service
addresses for these individuals.
IT IS FURTHER ORDERED that, 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.
IT IS FURTHER ORDERED that 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 Donald G. Wilkerson for further pre-trial proceedings.

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Further, this entire matter is REFERRED to United States Magistrate Judge Wilkerson
for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
IT IS FURTHER ORDERED that 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: September 26, 2016

___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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