Goings v. Jones et al
Filing
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MEMORANDUM AND ORDER severing case number 16-489-SMY. Signed by Judge Staci M. Yandle on 7/22/2016. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FREDRICK GOINGS, M36022
Plaintiff,
vs.
JOHN BALDWIN,
DONALD STOLWORTHY,
KIM BUTLER,
BENEFIELD,
BIG E,
BENNETTE,
GALIOTO,
ANDREW W. SPILLER,
CHARLOTTE MIGET,
JOSH SCHOENBECK,
TRACY K. LEE,
JEANETTE C. HECHT,
MICHAEL HOF,
AARON RUNGE,
ERIN CARTER,
ANDREW DILLINGHAM,
LANCE PHELPS,
BRANDON M. ANTHONY, and
UNKNOWN PARTY
Defendants.
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Case No. 16−cv–0489−SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Frederick Goings, an inmate in Menard Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, alleging numerous
federal and state claims.
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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
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). 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). 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 Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
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Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of this action are subject to
summary dismissal.
The Complaint
On October 28, 2014 at approximately 11:10 am, Correctional Officer Benefield, the
acting cell-house sergeant, walked through Plaintiff’s gallery shouting that his paperwork had
been shredded. (Doc. 1, p. 3). Benefield stated that “he better not find out who’s been fucking
with his shit because if he did he would come back and tear up their cell and burn their fucking
house down.” (Doc. 1, p. 3). Benefield then proceeded to shakedown Plaintiff’s cell. (Doc. 1,
p. 3). When Plaintiff returned to his cell, he noticed that his legal files had been ransacked and
some of the documents destroyed. (Doc. 1, p. 4). Additionally, some of his family contact
information was missing. (Doc. 1, p. 4). Plaintiff then asked Benefield why his cell was shaken
down and Benefield responded by threatening Plaintiff and hurling verbal abuse at him at his cell
door. (Doc. 1, p. 4). Benefield told Plaintiff “let’s see how you like your next fucking cell
assignment.” (Doc. 1, p. 4). Benefield sent Plaintiff to segregation a few days later, allegedly as
part of a scheme to have Plaintiff seriously injured or killed. (Doc. 1, p. 5).
Plaintiff’s cell mate in segregation was David Sesson. (Doc. 1, p. 6). Plaintiff alleges
that Benefield, Butler and various unnamed other staff knew that Sesson had threatened to kill
his next cell mate if he was double-celled. (Doc. 1, p. 6). Sesson began strangling Plaintiff with
an extension cord on November 5, 2014. 1 (Doc. 1, p. 6). Sesson also bit Plaintiff’s fingers.
1
Plaintiff’s exhibits suggest it was November 7, 2014.
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(Doc. 1, p. 6). Another inmate intervened to save Plaintiff. (Doc. 1, p. 6). As Sesson strangled
Plaintiff, he told him “I told them not to put anyone in this cell with me.” (Doc. 1, p. 6).
After the incident, Plaintiff submitted a request to the gallery officer to be removed from
the cell, but the request was ignored for days. He also put in sick call slips that were ignored.
(Doc. 1, p. 7). Plaintiff was not seen by a physician until December 3 or 4, 2014. Sesson was
finally removed from Plaintiff’s cell approximately four days after the attack. (Doc. 1, p. 7). He
went on to kill his next cell mate, Bernard Simmons. (Doc. 1, p. 7).
Plaintiff alleges that when he finally received health care for the strangulation incident,
Dr. Gulioto recorded the following notations in his medical records: 1) can’t control movements;
2) family trying to kill me. (Doc. 1, p. 15). Plaintiff believes these are inaccurate statements and
distort what he said to Gulioto. Specifically, Plaintiff alleges that he reported fears that the
prison staff was trying harm him through their control of movement passes and that he believed
the that his victim’s family, not his own, was trying to kill him. (Doc. 1, p. 15).
Benefield also spread a rumor about Plaintiff that Plaintiff had dropped a kite on some other
inmates about an incident that Plaintiff knew nothing about. (Doc. 1, p. 7). Plaintiff requested
protective custody status on December 1, 2015. (Doc. 1, p. 8). Butler denied it on January 23,
2015. (Doc. 1, p. 8).
Plaintiff was placed in segregation on January 25, 2015, but was never issued a
disciplinary ticket or informed why he went to segregation. (Doc. 1, p. 8). During that time, he
received an anonymous death threat which he turned over to Correctional Officer Englelade.
(Doc. 1, p. 8). Plaintiff then submitted another request for protective custody on February 25,
2015. (Doc. 1, p. 9). The request was denied on March 2, 2015. (Doc. 1, p. 9). Plaintiff
appealed the request to the ARB and a video hearing was held with Bennette on April 23, 2015.
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(Doc. 1, p. 9). Plaintiff’s request for protective custody was denied on May 5, 2015. (Doc. 1, p.
9). The denial was signed by Bennette, and the then acting IDOC Director Donald Stolworthy.
(Doc. 1, p. 9). Plaintiff further alleges that the denial contained misrepresentations and lies.
(Doc. 1, p. 9). For example, the report found that Plaintiff stated that inmates try to harm him
because he tells things when he sees them. (Doc. 1, p. 9). The report also stated that Engelade
denied that Plaintiff gave him an anonymous note threatening his life. (Doc. 1, p. 10). Plaintiff
alleges that Engelade told Plaintiff in the presence of Jones that he gave the note to Internal
Affairs. (Doc. 1, p. 10).
On August 26, 2015, Plaintiff was subjected to a strip search. (Doc. 1, p. 10). As part of
the strip search, Plaintiff had to bend over and spread his butt cheeks. (Doc. 1, p. 10). Plaintiff
was then interviewed by internal affairs. (Doc. 1, p. 11). He was then strip searched again by
Andrew Spiller. (Doc. 1, p. 11). The Correctional Officer conducting the search “looked at
Plaintiff with an offensive smirk, smiled, and said thank you.” (Doc. 1, p. 11). Plaintiff alleges
that the same officers strip searched him again moments later. (Doc. 1, p. 12). When Plaintiff
returned to his cell, his property was in disarray and he was told that he was being transferred to
segregation. (Doc. 1, p. 12). No one told Plaintiff why he was being sent to segregation. (Doc.
1, p. 12).
When Plaintiff arrived in the segregation unit in the North II cell house, a guard named
Big E grabbed Plaintiff by the back of the neck and squeezed while shoving Plaintiff’s face and
forehead into the brick wall of the building. (Doc. 1, p. 13). Plaintiff was strip searched again
by Big E in front of six other officers. (Doc. 1, p. 13).
Plaintiff was then taken to Cell 503, which had poor ventilation, feces on the walls and
smelled of urine. (Doc. 1, p. 13). It also had a rusted bed and door and lacked a power outlet.
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(Doc. 1, p. 13). The light in cell 503 stayed on for 24 hours a day and Plaintiff could not sleep
for three days because of it. (Doc. 1, p. 14). While in that cell, Plaintiff was deprived of his
blood pressure medication and believes that he suffered a stroke as a result of the denial. (Doc.
1, p. 13). Plaintiff was also denied medical care for the injuries inflicted by Big E. (Doc. 1, p.
14). Plaintiff was eventually moved to Cell 835, where he stayed for two weeks until he was
released back into general population. (Doc. 1, p. 14). He was never issued a disciplinary ticket.
(Doc. 1, p. 14). Plaintiff believes that his sick call slips were ignored in retaliation for his
grievance activity. (Doc. 1, p. 14).
Plaintiff is an attorney, although his license to practice law has been suspended during the
pendency of disciplinary proceedings. He has divided his Complaint into the following claims,
which the Court will use in all further proceedings in this case:
1. Failure to protect against Benefield for setting in motion the violent attack Plaintiff
suffered at the hands of Sesson
2. Failure to protect against Butler, Schoenbeck, Tracy Lee, Jeannette Hecht, Michael
Hef, Aaron Runge, Erin Carter, Lance Phelps, Andrew Dillingham, Andrew Spiller,
Brandon Anthony, Unknown Placement staff, Unknown correctional officers,
unknown sergeants, unknown lieutenants, unknown majors that were assigned to
North II cell house 3 gallery at the relevant time for placing Plaintiff in the cell with
Sesson.
3. Defamation against Benefield for telling other inmates that Plaintiff dropped a kite
about an incident
4. Defamation against Bennette, unknown Administrative Review Board Panel
members and former IDOC director Stolworthy for publishing information that
gives the impression that Plaintiff is a confidential informant
5. False and misleading statement in a state administrative proceeding against
Bennette, unknown Administrative Review Board Members, and Donald
Stolworthy for implying that Plaintiff made up a story about receiving a kite
threatening his life
6. Conspiracy against Bennette, unknown ARB Panel members, and Stolworthy for
conspiring to cover up the attack on Plaintiff
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7. A state law battery claim against Big E for grabbing Plaintiff by the neck and
shoving his face into the wall
8. An excessive force claim under the Eighth Amendment against Big E for grabbing
Plaintiff by the neck and shoving his face into the wall
9. Deliberate indifference against unknown correctional officers in North II cell house,
Unknown Sgt. assigned to 3 gallery in North II, Charlotte Miget, and unknown
health care staff for denying Plaintiff medical attention after he was attacked by
David Sesson
10. Deliberate Indifference claim against unknown correctional staff, Jones, Unknown
health care staff assigned to 5 gallery in North II cell house for refusing Plaintiff
medical care after he was attacked by Big E and incarcerated in a cell that elevated
his blood pressure.
11. Fourth Amendment violation against Benefield and the unknown correctional
officer assigned to 5 gallery in North I cell house for performing an unreasonable
search and seizure of Plaintiff’s cell and for failure to intervene in the unreasonable
search
12. Fourth Amendment violation against Spiller, Big E and other unknown officers for
conducting an “unreasonable search” of Plaintiff’s body by subjecting him to
multiple strip searches and forcing him to spread his butt cheeks.
13. Eighth Amendment unconstitutional conditions of confinement claim based in the
conditions of cell 503 against Big E, Jones, and unknown correctional and unknown
medical staff assigned to 5 gallery in the North II cell house
14. Eighth Amendment deliberate indifference claim for depriving Plaintiff of access to
his blood pressure medication against Big E, Jones, unknown correctional staff,
unknown medical staff
15. Eighth Amendment conditions of confinement claim against Jones, for the
conditions in Cell 503
16. Campaign of harassment, including mental abuse, retaliatory conduct, and threats
against Benefield in retaliation for Plaintiff filing grievances
17. Intentional interference with prospective business opportunities against Benefield
for starting a rumor that Plaintiff dropped a kite on another inmate, as such a
rumor would be detrimental because Plaintiff is an attorney and is expected to
maintain strict confidence and confidentiality
18. Intentional interference with prospective business opportunities against Bennette,
Stolworthy, and unknown ARB members for publishing a lie in the correspondence
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denying Plaintiff protective custody that had the effect of damaging Plaintiff’s
reputation as an attorney
19. Intentional interference with prospective business opportunities against Galioto for
publishing information in Plaintiff’s medical records that suggests Plaintiff lacks
self-control or that he believes his own family is trying to kill him, which would
negatively affect perceptions of Plaintiff’s competence
20. Intentional infliction of severe emotional distress against Benefield based on his
harassment, abuse, retaliation, and systematic road blocks.
Plaintiff requests monetary damages in the amount of one million dollars as well as
declarative and injunctive relief.
Discussion
Counts 1 and 2- Failure to Protect
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment.
U.S. CONST., amend. VIII. See also Berry v.
Peterman, 604 F.3d 435, 439 (7th Cir. 2010).
Eighth Amendment protection extends to
conditions of confinement that pose a substantial risk of serious harm, including health and
safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012). Prison
officials can violate the Eighth Amendment’s proscription against cruel and unusual punishment
when their conduct demonstrates “deliberate indifference to serious medical needs of prisoners.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A prison official may be liable “only if he knows
that inmates face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Proving deliberate indifference, however, requires more than a showing of negligent or
even grossly negligent behavior. Id. at 835. Rather, the corrections officer must have acted with
the equivalent of criminal recklessness. Id. at 836–37. Once prison officials know about a
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serious risk of harm, they have an obligation “to take reasonable measures to abate it,” even if
harm is not averted.
Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006); see also Dale v.
Poston, 548 F.3d 563, 569 (7th Cir. 2008).
Failure to protect is a claim that falls under the deliberate indifference rubric. See
Santiago v. Walls, 599 F.3d 749, 756 (7th Cir 2010). It is only an Eighth Amendment violation
if the deliberate indifference “effectively condones the attack by allowing it to happen.” Id.
(citing Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997)). A prisoner must allege sufficient
facts to show “that the defendants had actual knowledge of an impending harm easily
preventable so that a conscious, culpable refusal to prevent the harm can be inferred from the
defendant’s failure to prevent it.” Id.
Here, Plaintiff has stated a claim against Benefield in Count 1 for failure to protect. His
factual allegations that Benefield made a comment suggesting that Plaintiff would not like his
next cell assignment, and that he was moved shortly after an incident with Benefield create a
basis for Plaintiff’s assertion that Benefield was aware of Sesson’s history. Likewise, Plaintiff’s
claims against the named Defendants in Count 2 are sufficient to state a claim and survive
threshold review.
However, Plaintiff’s claims against the other multiple unknown Defendants in Count 2
are much more conclusory and bare bones. A pro-se Plaintiff may sue unknown Defendants.
Billman v. Indiana Dep't of Corr., 56 F.3d 785, 789 (7th Cir. 1995) (“The principle is implicit in
the many cases, most famously Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 390 n. 2, 91 S.Ct. 1999, 2001 n. 2, 29 L.Ed.2d 619 (1971), that take for
granted the right of a plaintiff to sue unknown injurers”). This is particularly true where the
plaintiff is also a prisoner and has had no chance prior to filing the complaint to engage in a prePage 9 of 26
trial investigation. Id.; see also Billman v. Indiana Dep't of Corr., 56 F.3d 785, 790 (7th Cir.
1995) (“The absence of names creates justifiable skepticism concerning this claim, but for the
reasons previously set forth a determination of frivolousness would be premature when the
plaintiff has been given no chance to explain why he cannot (if he cannot) identify the guilty
guards.”).
Therefore, Plaintiff’s claims against unknown placement staff, and unknown
correctional officers, including sergeants, majors, and lieutenants, assigned to North II Cell
House 3 Gallery, who knew that Sesson had made threats regarding future cellmates will
proceed.
Counts 3-5- Defamation and False and Misleading Statements
Claims for defamation are not actionable under § 1983. Batagiannis v. Lafayette Comty.
Sch. Corp., 454 F.3d 738, 742 (7th Cir. 2006); Bone v. Lafayette, 919 F.2d 64 (7th Cir. 1990).
Plaintiff’s Complaint does not state that he is attempting to bring these claims pursuant to state
law, nor does it cite 28 U.S.C. § 1367, the source of federal pendant jurisdiction over state law
claims. At other points in the Complaint, Plaintiff specifically stated that he was bringing claims
pursuant to state law. Although the Court is obligated to construe pro-se pleadings broadly,
Plaintiff is a former attorney, and indeed some of his claims state that he has hopes of practicing
law again. The Court therefore presumes he understands the difference between state and federal
law. As such, these Counts will be dismissed because there is no federal cause of action for
defamation or false or misleading statements.
Even if the Court were to construe these defamation claims as brought pursuant to state
law, they would still fail. The three elements of defamation under Illinois state law are: 1) the
defendant made a false statement about the Plaintiff; 2) the defendant caused an unprivileged
publication of the statement to a third party; and 3) the publication of the statement harmed the
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plaintiff. Knafel v. Chicago Sun-Times, Inc., 413 F.3d 637, 639 (7th Cir. 2005) (citing Parker v.
House O’Lite Corp., 756 N.E.2d 286 (Ill. App. 2001)). The publication requirement is satisfied
when the information is communicated to a third person. Goldstein v. Kinney Shoe Corp. 931
F.Supp. 595, 598 (7th Cir. 1996). Actions for defamation pursuant to Illinois state law shall be
commenced within one year next after the cause of action accrued. 735 ILCS 5/13-201.
Plaintiff’s first claim for defamation falls on statute of limitations grounds. Plaintiff
alleges that Benefield spread rumors about him in the fall of 2014, around the time Plaintiff was
moved into Sesson’s cell. Accordingly, Plaintiff would have had to bring those claims by the fall
of 2015, instead of waiting until May 2, 2016.
As to Count 4, Plaintiff has not alleged that the defamatory information was published to
a third party. Therefore he has inadequately pleaded a state law claim for defamation. As to
Count 5, the Court has identified no cases which support a recovery for false and misleading
statements in a state administrative proceeding. To the extent that this claim could be construed
as a defamation claim, it fails under federal law for failure to state a claim and fails under state
law because Plaintiff has not alleged either that the false and misleading statements were
published to third parties or that he was harmed by the false and misleading statements. For the
above reasons, Counts 3-5 will be DISMISSED.
Count 6 – Conspiracy
To prove a § 1983 conspiracy claim, the plaintiff must show that 1) a state official and a
private individual reached an understanding to deprive the plaintiff of his constitutional rights,
and 2) those individuals were willful participants in the unlawful activity with the state actor.
Cooney v. Casady, 735 F.3d 514, 518 (7th Cir. 2013) (citing Lewis v. Mills, 677 F.3d 324, 333
(7th Cir. 2012)). Typically, the evidence must reflect a “concerted effort” between the parties.
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Whitlock v. Brueggemann, 682 F.3d 567, 577 (7th Cir. 2012).
It is not enough for the
conspirators to share the same objective, rather a conspiracy requires that there be an agreement,
express or implied, to reach a desired result. Cooney, 735 F.3d at 519 (quoting Hampton v.
Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979)).
All Defendants in this case are state actors. It is likely that this claim is superfluous and
unnecessary. See Turley v. Rednour, 729 F.3d 645, 649 n. 2 (citing Fairley v. Andrews, 578 F.3d
518, 526 (7th Cir. 2009) (finding that the function of a § 1985 conspiracy claim is to “permit
recovery from a private actor who has conspired with state actors” and without private actors, the
conspiracy claim adds only “needless complexity.”)). Regardless, Plaintiff has failed to allege
any agreement on behalf of the Defendants to deprive him of his constitutional rights. Therefore,
Plaintiff’s conspiracy claim will be DISMISSED.
Count 7 and 8- Excessive force and state law battery against Lt. Big E
An officer violates a prisoner’s right under the Eight Amendment when he causes the
unnecessary and wanton infliction of pain. Forrest v. Prine, 620 F.3d 739, 744 (7th Cir. 2010)
(quoting Lewis v. Downey, 581 F.3d 467 (7th Cir. 2009). While “a good faith effort to maintain
or restore discipline” is not unnecessary and wanton, a malicious and sadistic use of force with
the intent to cause harm falls under that rubric. Id. (citing Hudson v. McMillian, 503 U.S. 1, 7
(1992)). The following factors may be considered when determining for what purpose a
defendant used force: 1) the need for force; 2) the amount of force used; 3) the threat reasonably
perceived by the officer; 4) efforts to mitigate the amount of force used; and 5) the extent of the
injury caused by the force. Lewis v. Downey, 581 F.3d 467, 477 (7th Cir. 2009).
Pursuant to Illinois state law, battery is defined as the unauthorized touching of another’s
person. Welton v. Ambrose, 814 N.E. 962 (Ill. App. 2001).
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The Court finds that Plaintiff has stated claims for excessive force and battery, and those
claims shall be permitted to proceed in this case. However, the Court notes that although
Plaintiff has pled two distinct legal theories, they are based on the same set of facts and Plaintiff
will only be permitted one recovery under the law for the same harm.
Count 9-10, 14 – Deliberate Indifference
Deliberate indifference to prolonged, unnecessary pain can be a basis for an Eighth
Amendment claim. Smith v. Knox County Jail, 666 F.3d 1037, 1039 (7th Cir. 2012). The length
of the delay that is tolerable depends on the seriousness of the condition and the ease in
providing treatment. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). A few days’ delay
addressing a readily treatable condition suffices to state a claim.
Rodriguez v. Plymouth
Ambulance Service, 577 F.3d 816, 832 (7th Cir. 2009); Grieveson v. Anderson, 538 F.3d 763,
779 (7th Cir. 2009); Edwards v. Synder, 478 F.3d 827, 830-31 (7th Cir. 2007).
Here, in Count 9, Plaintiff has alleged that his requests for medical treatment went
unanswered between November 5, 2014, the day he was attacked by Sesson, and December 3 or
4, 2014, when he finally saw a doctor. This is sufficient to state a claim. However, Plaintiff has
named numerous John Does in this Count. As discussed more fully above with regards to
Counts 1 and 2, although Plaintiff’s inclusion of a collective group of John Does is problematic
to his claim, he shall be permitted to conduct an investigation into which correctional officers in
the North II cell house and which unknown health care staff has access to his medical request
slips during the relevant time period. His claim will also proceed against the unknown sergeant
assigned to 3 gallery in the North II cell house and Nursing Supervisor Charlotte Miget.
In Count 10, Plaintiff likewise brings claims against unknown Defendants for failing to
provide him with blood pressure medication in August-September 2015, and failure to respond to
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his medical request slips for his alleged injuries and elevated blood pressure. These claims will
also be permitted to proceed so that Plaintiff may investigate the identity of those who received
and ignored his request slips.
Both Counts 9 and 10, although titled as deliberate indifference counts, use the word
“conspiracy” to describe them. The Court does not find that either count states a claim for
conspiracy. A formulaic recitation of cause of action is insufficient to state a claim. Brooks v.
Ross, 578 F.3d 574, 581-82 (7th Cir. 2009) (finding pro-se plaintiff had failed to properly plead a
conspiracy under Twombly where he made conclusory allegations that were just as consistent
with lawful action as conspiracy). Plaintiff has not sufficiently pleaded conspiracy and Count 9
and 10 will proceed as to deliberate indifference only.
Although Count 14 is extremely similiar to Count 10, Plaintiff appears to be alleging in
Count 10 that his request for the medical call line to address his problems of high blood pressure
and injuries was ignored while Count 14 raises the issue of the denial of blood pressure
medication. While the Court is not sure that these counts need to be separate, to the extent that
Count 14 is raising a factually distinguishable claim based on denying Plaintiff his medication, it
shall proceed.
Count 11 – Cell search violates Fourth Amendment
Plaintiff argues that his cell was searched without any proper penological reason in
violation of the Fourth Amendment. However, the Fourth Amendment's proscription against
unreasonable searches does not apply to prison cells. Jones v. Walker, 358 F. App'x 708, 712
(7th Cir. 2009) (citing Hudson v. Palmer, 468 U.S. 517, 526 (1984); Hanrahan v. Lane, 747 F.2d
1137, 1139 (7th Cir.1984)).
In addition, a state employee's unauthorized acts depriving a
prisoner of personal property do not violate the Due Process Clause if state law provides a
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meaningful post-deprivation remedy, and Illinois law does. See Hudson, 468 U.S. at 533;
Murdock v. Washington, 193 F.3d 510, 512-13 (7th Cir.1999); Kimbrough v. O'Neil, 523 F.2d
1057, 1059 (7th Cir.1975). Thus, Plaintiff states no claim for the allegedly unconstitutional
search of his cell and this claim will be DISMISSED.
Count 12- Strip search violates Fourth Amendment
Unlike searches of a prisoner’s cell, the Seventh Circuit has not completely foreclosed the
possibility that strip searches may violate the Fourth Amendment. Peckham v. Wisconsin Dept.
of Corrections, 141 F.3d 694, 697 (7th Cir. 1998). The Court has noted, however, “that it is
difficult to conjure up too many real-life scenarios where prison strip searches of inmates could
be said to be unreasonable under the Fourth Amendment.” Id. Still, at this stage in the case,
Plaintiff’s claims that the strip searches he endured were unreasonable rise to the level of
plausible. Plaintiff will be permitted to proceed with Count 12.
However, Plaintiff has included another group of John Doe Defendants whom he alleges
“were present.” Under § 1983, individuals must be personally involved for liability to attach.
Minix v. Canarecci, 597 F.3d 824, 834 (7th Cir. 2010). Although direct participation is not a
requirement, there must at a minimum, facts tending to show that a defendant acquiesced in
some demonstrable way in the alleged constitutional violation. Palmer v. Marion Cty., 327 F.3d
588, 594 (7th Cir. 2003). Plaintiff’s allegation here is that the strip searches were unreasonable
because the guards conducted several during a short period of time, during which Plaintiff was
never out of custody of the guards. Plaintiff argues that he could not have secured contraband
during that time. But Plaintiff only alleges that the unknown guards were present for only one of
the strip searches. He does not allege that they knew about the other strip searches or that they
acquiesced in the entire course of conduct that Plaintiff complains of. As such, Plaintiff has not
Page 15 of 26
adequately stated a claim against the John Doe Defendants listed in this count and they will be
dismissed.
Counts 13 and 15- Conditions of Confinement
Plaintiff has alleged a conditions of confinement claim in both Count 13 and Count 15.
The Court finds no meaningful distinction between the two claims.
In a conditions of
confinement case, the plaintiff must prove both the objective factor—that he suffered a
sufficiently serious deprivation—and the subjective factor—that the defendant subjectively acted
with deliberate indifference to the plaintiff’s condition of confinement—to prove that an Eighth
Amendment constitutional violation occurred. Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008);
Helling v. McKinney, 509 U.S. 25, 35 (1993). With respect to the objective factor, the plaintiff is
required to show scientific and statistical proof of the potential harm and the likelihood that such
injury to health will actually be caused by the condition of confinement. Id. at 36. The Court
accepts as true Plaintiff’s allegations regarding the conditions of his cell at this time. Further, a
court is required to assess whether society considers the risk that the prisoner complains of to be
“so grave that it violates contemporary standards of decency to expose anyone unwilling to such
a risk.” Id. With respect to the subjective factor, the defendant must have known of the
substantial risk of serious harm but disregarded that risk by failing to take reasonable measures
to address it. Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008), citing Farmer v. Brennan,
511 U.S. 825, 847 (1994).
The problem with these counts is that Plaintiff has not alleged that any of the Defendants
were actually involved in the decision to place him in Cell 503 or that he complained to any of
them about the conditions therein. Paragraph 79 of Plaintiff’s Complaint does not identify any
Defendant who escorted Plaintiff to the cell. Likewise, although he alleges that he submitted
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medical request slips during his two weeks in segregation regarding the injuries allegedly
inflicted by Big E and his high blood pressure, Plaintiff does not allege that he complained to
anyone about the conditions in cell 503.
Plaintiff has not adequately pleaded personal
involvement on the part of any defendant, named or unnamed on his conditions of confinement
claim. Therefore these claims will be DISMISSED without prejudice.
Count 14 – Campaign of Harassment
The Court believes that Count 14 more properly states a retaliation claim, as Plaintiff
indicates that he believes that he was treated poorly to due to his protected First Amendment
conduct. An inmate has a constitutional right to file a grievance as part of his right of access to
the courts under the First Amendment. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000).
Retaliatory official action violates the Constitution, even if the officer would be otherwise
authorized to take that action in the absence of a retaliatory motive. Zimmerman v. Tribble, 226
F.3d 568, 573 (7th Cir. 2000). To succeed on a First amendment Retaliation claim, a plaintiff
must prove 1) that he engaged in conduct protected by the First Amendment; 2) that he suffered
a deprivation that would likely deter First Amendment activity in the future; and 3) that the
protected conduct was a “motivating factor” for taking the retaliatory action. Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009).
In the prison context, where an inmate is alleging retaliation, it is not enough to simply
state the cause of action. The inmate must identify the reasons that retaliation has been taken, as
well as “the act or acts claimed to have constituted retaliation,” so as to put those charged with
the retaliation on notice of the claim(s). Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). As
stated above, the inmate need not plead facts to establish the claim beyond doubt, but need only
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provide the bare essentials of the claim, and in a claim for retaliation the reason for the retaliation
and the acts taken in an effort to retaliate suffice. Id.
Here, Plaintiff has alleged generally that he filed grievances, but he has not identified
specific grievances by date or incident, which drew the alleged retaliation. See Higgs v. Carver,
286 F.3d 437, 439 (7th Cir. 2002) (“Had Higgs merely alleged that the defendants had retaliated
against him for filing a suit, without identifying the suit or the act or acts claimed to have
constituted retaliation, the complaint would be insufficient.”). Plaintiff must identify the specific
grievances or other protected conduct that caused the alleged retaliation. Otherwise, Defendants
do not have proper notice about the contours of his claim in order to prepare their response.
Having not identified his protected conduct, his claim must be DISMISSED at this time.
Counts 17-19 Intentional Interference with Prospective Business Opportunity
Plaintiff’s Counts 17-19 do not state claims pursuant to Federal law or assert rights
protected by § 1983. Illinois state law does recognize the tort of interference with prospective
business advantage and the Court presumes that this is the claim that Plaintiff is attempting to
make.
To state a claim for intentional interference with prospective business advantage,
plaintiffs must allege (1) a reasonable expectation of entering a valid business relationship with a
third party; (2) knowledge of that relationship on the part of the defendant; (3) defendant's
purposeful interference with and defeat of that expectancy; and (4) injury to plaintiff as a result.
A–Abart Elec. Supply, Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th Cir. 1992), cert.
denied, 506 U.S. 867 (1992); Kurtz v. Illinois Nat'l Bank, 534 N.E.2d 1007, 1012 (1989). In
addition, plaintiff must prove that the tortfeasor acted with actual malice, i.e., the individual
acted with a desire to harm that was unrelated to the interest he was presumably trying to protect
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by bringing about the contract breach. Capital Options Inv., Inc. v. Goldberg Bros. Commodities,
Inc., 958 F.2d 186, 189 (7th Cir.1992).
Plaintiff has alleged that Defendants’ various acts have interfered with potential job
opportunities he might have as an attorney. Not only is Plaintiff a convicted murderer, his law
license is also currently suspended pending further disciplinary proceedings. Therefore, He is
not currently licensed to practice law. Plaintiff makes all three claims on the explicit assumption
that his conviction will be overturned and that he will be reinstated as a licensed attorney. The
Court finds that assumption far too speculative at this time. Generally speaking, Illinois Courts
have held the hope of receiving a job offer is not a sufficient reasonable expectancy. Anderson v.
Vanden Dorpel, 667 N.E.2d 1296, 1299 (1996). Here Plaintiff does not even have that. He has
the hope of someday being able to entertain job offers from clients. The Court finds that Plaintiff
has failed to adequately plead intentional interference with prospective business opportunities.
Counts 17-19 will be DISMISSSED.
Count 20 – Intentional Infliction of Severe Emotional Distress
Under Illinois law, the tort of intentional infliction of emotional distress covers only acts
that are truly “outrageous,” that is, an “‘unwarranted intrusion . . . calculated to cause severe
emotional distress to a person of ordinary sensibilities.’” Knierim v. Izzo, 174 N.E.2d 157, 164
(Ill. 1961) (quoting Slocum v. Food Fair Stores of Fla., 100 So. 2d 396 (Fla.1958)). See
Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001). 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
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defendant’s conduct “must go beyond all bounds of decency and be considered intolerable in a
civilized community.” Honaker, 256 F.3d at 490 (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). Whether conduct is extreme and outrageous is judged on an objective standard,
based on the facts of the particular case. Honaker, 256 F.3d at 490.
It is clear, however, that “the tort does not extend to ‘mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.’ ” McGrath, 127 Ill.Dec. 724, 533 N.E.2d at
809 (quoting Restatement (Second) of Torts § 46, cmt. d (1965)). Instead, the conduct must go
beyond all bounds of decency and be considered intolerable in a civilized community. See
Kolegas v. Heftel Broad. Corp., 154 Ill.2d 1, 180 Ill.Dec. 307, 607 N.E.2d 201, 211 (1992);
Campbell v. A.C. Equip. Servs. Corp., Inc., 242 Ill.App.3d 707, 182 Ill.Dec. 876, 610 N.E.2d
745, 749 (1993). Thus, to serve as a basis for recovery, the defendant's conduct must be such that
the “ ‘recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim[:] Outrageous!’ ” Doe v. Calumet City, 161
Ill.2d 374, 204 Ill.Dec. 274, 641 N.E.2d 498, 507 (1994) (quoting Restatement (Second) of Torts
§ 46 cmt. d (1965)) (internal quotation marks omitted).
Plaintiff only alleges that he suffered from pain and emotional trauma in paragraph 32,
which refers back to the incident where he was celled with David Sesson. (Doc. 1, p. 7). The
Court finds that the conduct alleged with respect to that incident could objectively be considered
“extreme and outrageous”. Accordingly, Plaintiff has adequately stated a claim for intentional
infliction of emotional distress against Benefield, Butler, Schoenbeck, Tracy Lee, Jeannette
Hecht, Michael Hef, Aaron Runge, Erin Carter, Lance Phelps, Andrew Dillingham, Andrew
Spiller, Brandon Anthony, Unknown Placement staff, Unknown correctional officers, unknown
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sergeants, unknown lieutenants and unknown majors that were assigned to North II cell house 3
gallery at the relevant time.
In conclusion, Counts 3-5 will be DISMISSED with prejudice. Counts 6, 11, 13, and
15-19 will be DISMISSED without prejudice for failure to state a claim upon which relief
could be granted. Sherri Bennette, Donald Stolworthy, unknown ARB members, unknown
officers who observed a strip search, and Dr. Galioto are DISMISSED. Claims 1-2, 7-10, 12, 14
and 20 shall proceed. Plaintiff may file an amended complaint if he can articulate facts that
would entitle him to relief on Counts 6, 11, 13 and 15-19.
Severence
The Seventh Circuit has confirmed that separate, unrelated claims belong in different
suits. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). On review of the Complaint, the
claims against Defendants Benefield, Butler, Schoenbeck, Tracy Lee, Jeannette Hecht, Michael
Hef, Aaron Runge, Erin Carter, Lance Phelps, Andrew Dillingham, Andrew Spiller, Brandon
Anthony, Unknown Placement staff, Unknown correctional officers, unknown sergeants,
unknown lieutenants, unknown majors that were assigned to North II cell house 3 gallery,
Charlotte Miget, and unknown health care staff in Counts 1-2, 9, and 20 of the complaint are not
sufficiently related to the claims against Defendants Big E, Spiller, Jones, unknown correctional
staff, and unknown health care staff assigned to 5 gallery in North II cell house in Counts 7-8,
10, 12, and 14 so as to allow them to proceed together in one lawsuit.
The claims in Counts 1-2, 9, and 20 against Defendants Benefield, Butler, Schoenbeck,
Tracy Lee, Jeannette Hecht, Michael Hef, Aaron Runge, Erin Carter, Lance Phelps, Andrew
Dillingham, Andrew Spiller, Brandon Anthony, Unknown Placement staff, Unknown
correctional officers, unknown sergeants, unknown lieutenants, unknown majors that were
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assigned to North II cell house 3 gallery, Charlotte Miget, and unknown health care staff shall
proceed in this original suit. The claims in Counts 7-8, 10, 12 and 14 against Defendants Big E,
Spiller, Jones, unknown correctional staff, and unknown health care staff assigned to 5 gallery in
North II cell house shall also proceed, but shall be severed into a separate action. Plaintiff shall
be assessed a new filing fee for the severed case.
Pending Motions
Plaintiff’s Complaint requests multiple forms of preliminary injunctive relief, including
that all defendants cease and desist harassing or retaliating against Plaintiff, that Plaintiff be
immediately transferred to another institution and Defendants be permanently barred from
housing Plaintiff at Menard. Plaintiff makes other requests for injunctive relief, but those relate
to claims that have been dismissed at this time. In considering whether to grant injunctive relief,
a district court is obligated to weigh the relative strengths and weaknesses of a plaintiff’s claims
in light of a five-part test that has long been part of the Seventh Circuit’s jurisprudence.
Specifically, a plaintiff must establish: (1) that there is a reasonable or substantial likelihood that
he would succeed on the merits; (2) that there is no adequate remedy at law; (3) that absent an
injunction, he will suffer irreparable harm; (4) that the irreparable harm suffered by plaintiff in
the absence of the injunctive relief will outweigh the irreparable harm that defendants will
endure were the injunction granted; and (5) that the public interest would be served by an
injunction. Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking, 176 F.3d 1004, 1011
(7th Cir. 1999).
Plaintiff has made serious allegations related to his safety at Menard. However, his
allegations that he was celled with a homicidal cell mate date back to 2014. His allegations that
he was placed in a cell with unconstitutional conditions stems from incidents in 2015. There is
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no allegation that Plaintiff is currently housed in a gallery with Benefield, whom he alleges has
harassed and retaliated against him. There is no allegation that Plaintiff is housed with Sesson.
There is no allegation that Plaintiff is in cell 503, and in fact the Complaint states that Plaintiff
was removed from that cell after a few days. Plaintiff does not allege any ongoing course of
conduct that would put him at risk. Simply put, there are no allegations that support the
conclusion that Plaintiff would suffer irreparable harm if an injunction is not granted at this time.
Plaintiff is free to file another motion requesting a preliminary injunction if he believes that he
can articulate sufficient facts to support it. But for now, Plaintiff’s request for a preliminary
injunction is DENIED.
Plaintiff’s motion for recruitment of counsel remains PENDING and shall be referred to
United States Magistrate Judge Frazier for a decision. (Doc. 3).
Disposition
IT IS HEREBY ORDERED that Counts 3-5 will be DISMISSED with prejudice.
Counts 6, 11, 13, and 15-19 will be DISMISSED without prejudice for failure to state a claim
upon which relief could be granted.
Sherri Bennette, Donald Stolworthy, unknown ARB
members, unknown officers who observed a strip search, and Dr. Galioto are DISMISSED.
Counts 1-2, 7-10, 12, 14 and 20 shall proceed, although Counts 7-8, 10, 12 and 14 shall be
severed into a separate suit and a new filing fee assessed.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Benefield, Butler,
Big E, Andrew Spiller, Josh Schoenbeck, Tracy K. Lee, Jeanette C. Hecht, Michael Hot, Aaron
Runge, Erin Carter, Andrew Dillingham, Lance Phelps, Brandon M. Anthony, and Charlotte
Miget: (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
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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.
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.
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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 Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Frazier 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).
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IT IS SO ORDERED.
DATED: July 22, 2016
s/ STACI M. YANDLE
U.S. District Judge
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