Watson v. Dodd et al
Filing
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ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 1/12/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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KENNETH WATSON,
Plaintiff,
vs.
C/O DODD,
C/O MCBRIDE,
LT JACKSON,
C/O ANDERTON,
C/O NALLEY,
NURSE MCCAIN,
C/O APARICIO,
MICHAEL SANDERS,
MAJOR PLOTTS, and
JASON GARNETT,
Defendants.
–1217 NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Kenneth Watson, an inmate in Pontiac Correctional Center (“Pontiac”), brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 that
allegedly took place at Big Muddy Correctional Center (“Big Muddy”). According to the
Complaint, Plaintiff was attacked and sexually assaulted by defendant corrections officers Dodd
and McBride, and his efforts at obtaining medical care and reporting the incident were prevented
or ignored by the other defendants. (Doc. 1). This case is now before the Court for a preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915A, which reads:
(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.
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(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 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
In his Complaint (Doc. 1), Plaintiff claims he was unjustifiably attacked by corrections
officers McBride and Dodd on July 17, 2016. (Doc. 1, p. 16). According to the Complaint, both
Dodd and McBride beat Plaintiff in the shower, and Dodd grabbed and squeezed Plaintiff’s penis
and testicles “very hard.” Id. Despite his cries for help, Plaintiff alleges Jackson and Plotts
observed this attack without intervening to assist Plaintiff. Id. Anderton was also allegedly
present during the altercation. Id. Plaintiff claims Dodd and McBride then dragged him by a lead
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cuff to a “chuckhole” where they forced his wrists through and yanked on his cuffs “with
extreme force” causing the cuffs to cut deep into his wrists. Id. When Anderton removed the
cuffs, Jackson allegedly told Plaintiff to undress for a strip search. Id. According to the
Complaint, Plaintiff refused this command because Dodd and McBride, his alleged assailants,
were still present, he “wasn’t getting naked in front of 2 men that just beat [him] and sexually
assaulted [him],” and he wanted to see a nurse and PREA 1 to report his sexual assault. (Doc. 1,
pp. 16-17). Plaintiff allegedly complied and removed his clothing after Plotts threatened him
with a “Tact Team” and Dodd and McBride left the area. (Doc. 1, p. 17).
Plaintiff claims he told Nalley about the alleged sexual assault. Id. At this point, Plaintiff
allegedly requested to see a nurse and PREA and to be allowed to file a police report in Nalley’s
office on Dodd and McBride for the attack. (Doc. 1, pp. 17-18). Nalley allegedly told Plaintiff to
go to his cell and that he would return for him in a few minutes. (Doc. 1, p. 18). Plaintiff
complied but allegedly never heard from Nalley again. Id. Plaintiff was instead visited
approximately one hour later by McCain, a nurse, and Jackson. Id. Plaintiff told them both about
the alleged attack and sexual assault. Id. McCain told Plaintiff she did not see any injuries,
though Plaintiff alleges she did see injuries, at least deep cuts on his wrists from the cuffs, and
“chose to protect her co-workers/friends and not document [his] injuries or treat them.” (Doc. 1,
p. 19). Plaintiff further alleges McCain failed in her duty to report his accusation of sexual
assault against Dodd. Id.
Within one day of the alleged attack, Plaintiff claims that Aparicio and Sanders met with
him in their office for an Adjustment Committee hearing on his “ticket.” (Doc. 1, pp. 19-20).
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Plaintiff repeatedly refers to the “PREA” throughout his filings. This refers to the statute commonly
known as the Prison Rape Elimination Act. In some instances, Plaintiff seems to reference an entity or office within
the prison system that handles prisoner complaints about sexual assault.
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Plaintiff allegedly told them everything that had happened to him, including the sexual assault
and all of the people he told about the events after the fact. Id. Despite Plaintiff’s alleged request
to Aparicio and Sanders to be able to see PREA and file a complaint against Dodd and McBride,
and Aparicio and Sanders telling Plaintiff someone would come to talk to him about it, this never
occurred, and Aparicio and Sanders allegedly misquoted and underreported Plaintiff’s statements
to them in their Adjustment Committee report. (Doc. 1, p. 20). For example, their report
indicated that Plaintiff refused to uncuff at one point, when Plaintiff says he never told them he
refused to uncuff, only strip. Id. Plaintiff claims they misreported his statements to them “in
order to make things fit their (IDOC) agenda and find [him] guilty of something [he] didn’t do.”
Id.
As warden, having the final say on the report of the Adjustment Committee, Garnett also
allegedly “tried to cover everything up and make [Plaintiff] do 6 months for some . . . tickets” to
protect Dodd and McBride, despite the fact that Plaintiff’s allegations of sexual assault were
included on the report. (Doc. 1, p. 21). Plaintiff also filed three grievances and submitted several
requests at Big Muddy to Healthcare, PREA, mental health, and the warden’s office, which went
unanswered. (Doc. 1, p. 22). The ARB also allegedly denied Plaintiff’s grievances, without a
proper investigation, despite his well-documented allegation of sexual assault. (Doc.1, pp. 2223). Instead, Plaintiff claims they “altered [his] words and made [Plaintiff] look like [he] said
things [he] didn’t to fit a certain agenda which is to protect an officer.” (Doc. 1, p. 23). Plaintiff
allegedly was not seen by PREA until September 14, 2016, when he was in Pontiac. (Doc. 1, p.
24). Plaintiff claims that, had the PREA Mandate been followed when he was at Big Muddy, the
bruising on his penis, testicles, and chest and the cuts on his wrists from the alleged attack would
have been more visible, and his claims “could have been substantiated more clearly.” Id. Plaintiff
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seeks monetary damages and injunctive relief in the form of a transfer to Graham Correctional
Center and placement in a Correctional Industry Job for the rest of his sentence, a body camera
to be worn by IDOC employees at all times, each defendant to be fired, and criminal charges to
be filed, presumably against his alleged attackers. (Doc. 1, p. 34).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into six 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 was subjected to excessive force in violation of the Eighth
Amendment when he was unjustifiably attacked by Dodd and
McBride on July 17, 2016.
Count 2 –
Anderton, Jackson, and Plotts failed to intervene and protect
Plaintiff by failing to put an end to the excessive force used against
Plaintiff by Dodd and McBride on July 17, 2016.
Count 3 –
Defendants were deliberately indifferent to Plaintiff’s medical
needs by failing to treat and/or failing to ensure treatment of the
cuts on his wrist, his stomach pain, and the bruising on his penis,
testicles, and chest after he sustained these injuries while being
attacked on July 17, 2016.
Count 4 –
Plaintiff was subjected to retaliation in the form of a transfer to
Pontiac, Plaintiff being found guilty for “bogus” tickets, and
Plaintiff having to do “seg time” for reporting the attack by Dodd
and McBride.
Count 5 –
Plaintiff was discriminated against in violation of the Fourteenth
Amendment in that his claims of sexual assault by a corrections
officer were treated differently than would be claims of sexual
assault brought by a corrections officer against him.
Count 6 –
Plaintiff was deprived of his due process rights guaranteed by the
Fourteenth Amendment when his allegations of physical and
sexual assault were not reported or investigated when he was in
Big Muddy despite his consistent requests to be seen by PREA
starting July 17, 2016.
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As discussed in more detail below, Counts 1, 2, 3, and 4 are subject to further review.
Any other intended claim that has not been recognized by the Court is considered dismissed
without prejudice as inadequately pleaded under the Twombly pleading standard.
Count 1–Excessive Force
Plaintiff alleges he was subjected to cruel and unusual punishment in the form of
excessive force and sexual assault by Dodd and McBride. The intentional use of excessive force
by prison guards against an inmate without penological justification constitutes cruel and unusual
punishment in violation of the Eighth Amendment and is actionable under § 1983. See Wilkins v.
Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). An inmate
must show that an assault occurred, and that “it was carried out ‘maliciously and sadistically’
rather than as part of ‘a good-faith effort to maintain or restore discipline.’” Wilkins, 559 U.S. at
40 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). An inmate seeking damages for the use of
excessive force need not establish serious bodily injury to make a claim, but not “every
malevolent touch by a prison guard gives rise to a federal cause of action.” Wilkins, 559 U.S. at
37-38 (the question is whether force was de minimis, not whether the injury suffered was de
minimis); see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).
Here, Plaintiff has presented sufficient facts to state a claim of excessive force. Although
the prison guards who allegedly beat and sexually assaulted Plaintiff told him to stop resisting at
one point, Plaintiff claims that he was not resisting and that these actions were unjustified.
(Doc. 1, p. 16). It cannot be determined at this point if this alleged use of force was appropriate
or excessive, or if the sexual assault occurred. See Wilkins, 559 U.S. at 40. Count 1 will be
allowed to proceed against defendants Dodd and McBride.
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Count 2–Failure to Intervene
Under the Eighth Amendment, a correctional officer may be held liable for failing to
intervene if he or she has a realistic opportunity to step forward and protect a plaintiff from
another officer’s excessive force, but fails to do so. Harper v. Albert, 400 F.3d 1052, 1064 (7th
Cir. 2005). Plaintiff claims that while he was being assaulted by Dodd and McBride, he called
for help to the guards that were present, including Anderton, Jackson, and Plotts. (Doc. 1, p. 16).
Instead of intervening, Anderton, Jackson, and Plotts allegedly stood by and allowed the attack
to continue. Id. This states a viable failure to intervene claim against Anderton, Jackson, and
Plotts, so Count 2 will be allowed to proceed against them.
Count 3–Deliberate Indifference
Plaintiff claims defendants were deliberately indifferent to his medical needs. The Eighth
Amendment to the United States Constitution protects prisoners from cruel and unusual
punishment. U.S. CONST., amend. VIII; see also Berry v. Peterman, 604 F.3d 435 (7th Cir.
2010). Prison conditions that deprive inmates of basic human needs, such as adequate nutrition,
health, or safety, may constitute cruel and unusual punishment. Rhodes v. Chapman, 452 U.S.
337, 346 (1981); see also James, 956 F.2d at 699. Prison officials violate the Eighth
Amendment’s proscription against cruel and unusual punishment when their conduct
demonstrates deliberate indifference to the serious medical needs of an inmate. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). To
establish deliberate indifference to a medical condition, a prisoner must show a condition that is
sufficiently serious (objective component) and that an official acted with a sufficiently culpable
state of mind in failing to address the condition (subjective component). Id. Whether an injury is
serious enough is a very fact specific inquiry—seriousness may be shown if an ordinary doctor
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opined an injury warranted treatment, if an injury significantly impacted an individual’s daily
activities, or if an injury caused chronic or substantial pain, among other things. Id.
As to the subjective component, an official “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002). If an official
reasonably responds to a risk, even if harm was not averted, deliberate indifference does not
exist. Id. A claim for medical negligence does not amount to deliberate indifference. Gutierrez,
111 F.3d at 1369.
Plaintiff has alleged that he sustained sufficiently serious injuries as his “penis, wrist, and
stomace [sic] were hurting very badly” after the alleged attack. (Doc. 1, p. 10). He claims he had
bruising on his penis, testicles, and chest and deep cuts on his wrists that went entirely untreated.
(Doc. 1 , pp. 19, 24). At this early stage, these allegations are enough to satisfy the objective
component of the deliberate indifference analysis.
With respect to the subjective component, the only defendant who apparently saw
Plaintiff for his injuries at Big Muddy was McCain, the nurse who saw him soon after he was
allegedly attacked and sexually assaulted. Plaintiff’s factual assertions about McCain’s refusal to
examine him, acknowledge his visible wrist injuries, or provide even the bare minimum of care
are sufficient to allow this claim past screening. Although a nurse is not held to as stringent of a
standard as a doctor, a nurse still has a duty to provide a reasonable amount of care within the
bounds of his or her position. Perez v. Fenoglio, 792 F.3d 768, 779 (7th Cir. 2015) (noting that a
nurse’s duty could include administering treatment if authorized to do so, or contacting higher
authorities if care he or she was authorized to provide would be so inadequate that awaiting
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further authorization could be harmful). Accordingly, Count 3 will be allowed to proceed against
McCain for deliberate indifference to a serious medical condition.
Plaintiff has also sufficiently stated claims against those guards who failed to respond to
his pleas that he needed medical treatment immediately following his attack. Even though prison
guards have a lesser degree of responsibility for the provision of medical care than other prison
employees such as a nurse or doctor, a guard may still be deliberately indifferent if he or she
blatantly disregards a medical need. This is especially true if the guard’s own conduct
contributes to the need for medical attention. See Cooper v. Casey, 97 F.3d 914, 917 (7th Cir.
1996) (holding that a prison guard who uses excessive force has a duty to secure appropriate
medical care for the injured inmate). Defendants Anderton, Jackson, Plotts, Dodd, McBride, and
Nalley were all present during and/or immediately after the alleged attack. Anderton, Jackson,
and Plotts allegedly failed to intervene to prevent further injuries to Plaintiff during the attack,
and Dodd and McCain allegedly committed it. These defendants therefore allegedly contributed
to Plaintiff’s injury, so they should have secured appropriate care for Plaintiff after the fact.
Though Nalley did not necessarily contribute to the attack, he was allegedly informed of the
attack by Plaintiff immediately after it happened and misled Plaintiff into believing he would get
him help, only to abandon him in his cell. His actions may constitute a blatant disregard for
Plaintiff’s medical needs as well. Thus, Count 3 will also be allowed to proceed against
Anderton, Jackson, Plotts, Dodd, McBride, and Nalley, to allow for development of a more
comprehensive factual record.
Count 4–Retaliation
Plaintiff argues that he was disciplined and then transferred in retaliation for complaining
of and attempting to report the alleged attack and sexual assault on him by Dodd and McBride, in
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violation of his rights under the First Amendment. Prisoners have a First Amendment right to
free speech, see Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125
(1977); Martin v. Brewer, 830 F.2d 76, 77 (7th Cir. 1987), and restrictions on that right will be
upheld only if they are “reasonably related to legitimate penological interests.” See Thornburgh
v. Abbott, 490 U.S. 401, 413 (1989) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)); Massey v.
Wheeler, 221 F.3d 1030, 1035 (7th Cir. 2000). Further, prison officials may not retaliate against
an inmate for exercising his First Amendment rights, even if their actions would not
independently violate the Constitution. See Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir.
2000); DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000) (“a prison official may not retaliate
against a prisoner because that prisoner filed a grievance”); Babcock v. White, 102 F.3d 267, 275
(7th Cir. 1996) (retaliatory transfer); Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996)
(retaliation for filing lawsuit); Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987) (per
curiam) (retaliation for filing suit).
“A complaint states a claim for retaliation when it sets forth ‘a chronology of events from
which retaliation may plausibly be inferred.’” Zimmerman, 226 F.3d at 573 (citation omitted). In
this case, Plaintiff alleges that defendants “found [him] guilty for bogus tickets,” made him “do
seg time,” and transferred him from Big Muddy “to ‘protect’ C/O McBride” after Plaintiff
attempted to report the alleged attack on him. (Doc. 1, p. 24). Such a chronology arguably
presents a colorable claim of retaliation; thus, the Court is unable to dismiss this retaliation claim
at this point in the litigation. 28 U.S.C. § 1915A; see Zimmerman, 226 F.3d at 574 (reversing
district court’s § 1915A dismissal because inmate’s allegations established that “the exercise of
his [First Amendment] right was closely followed by the retaliatory act”). The defendants
conceivably responsible for the alleged acts of retaliation include Aparicio, Sanders, and Garnett,
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as they were allegedly involved in the Adjustment Committee process from which Plaintiff was
disciplined after the alleged attack, and in which they allegedly altered what he did and said to
“fit their agenda” and “cover everything up” to protect Dodd and McBride. (Doc. 1, p. 21).
Count 4 will proceed against Aparicio, Sanders, and Garnett.
Count 5–Discrimination
Plaintiff alleges he was discriminated against in violation of the Fourteenth Amendment,
in that “if it [were him] sexually assaulting an officer or beating them things would have been
handled totally different than how they were” when it was Plaintiff being allegedly assaulted by
an officer. (Doc. 1, p. 24). “To show a violation of the Equal Protection Clause, plaintiffs must
prove that the defendants’ actions had a discriminatory effect and were motived by a
discriminatory purpose.” Chavez v. Ill. State Police, 251 F.3d 612, 635–36 (7th Cir. 2001).
Actions may have discriminatory effect when they cause a plaintiff to be treated differently from
other similarly situated individuals. Id. at 636. Further, to state a claim for violation of the Equal
Protection Clause, plaintiffs usually must allege that they are members of a “suspect class.” Srail
v. Village of Lisle, 588 F.3d 940, 943 (7th Cir. 2009).
A plaintiff can also allege that a defendant discriminated against him in particular—so
called “class-of-one” claims. Such claims require the plaintiff to allege that “the plaintiff has
been intentionally treated differently from others similarly situated and there is no rational basis
for the difference in treatment.” Srail v. Village of Lisle, 588 F.3d 940, 943 (7th Cir. 2009). To
plausibly allege such a claim, the “plaintiff must negate any reasonably conceivable state of facts
that could provide a rational basis.” Jackson v. Village of Western Springs, 612 F. App’x 842,
847 (7th Cir. 2015).
It is not clear what Plaintiff believes the claimed discrimination is based upon–his status
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as a prisoner or as a “class of one.” Plaintiff has not alleged that he is in a suspect class, and his
status as a prisoner does not render him in one. Johnson v. Daley, 339 F.3d 582, 585-586 (7th
Cir. 2003) (“Prisoners are not a suspect class; conviction of crime justifies the imposition of
many burdens.”). Further, Plaintiff has not negated any reasonably conceivable set of facts that
could provide a rational basis for his complaints being allegedly ignored when, in a hypothetical
situation where the tables would be turned, an officer’s complaints would not be. In fact, Plaintiff
has not provided any reason why this Court should consider him to be “similarly situated” to that
hypothetical officer. Further, this Court is not in the business of speculating about what might
have happened in a different scenario entirely, just to substantiate Plaintiff’s claims. See
Twombly, 550 U.S. at 570 (“Factual allegations [in a complaint] must be enough to raise a right
to relief above the speculative level.”). Plaintiff has therefore failed to state an equal protection
claim upon which relief may be granted. Count 5 shall be dismissed with prejudice.
Count 6–Due Process
Plaintiff claims that his due process rights were violated when his “allegations were not
reported or investigated in Big Muddy,” specifically citing defendants’ failure to follow the
PREA Mandate. (Doc. 1, p. 24). With respect to defendants’ alleged failure to investigate
Plaintiff’s more general allegations of assault, “a state’s inmate grievance procedures do not give
rise to a liberty interest protected by the due process clause.” Antonelli v. Sheahan, 81 F.3d 1422,
1430 (7th Cir. 1995). In fact, the Constitution requires no procedure at all, and the failure of state
prison officials to follow their own procedures does not, of itself, violate the Constitution. Maust
v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982).
Prison officials thus incur no liability under § 1983 if they fail or refuse to investigate a
prisoner’s complaints or grievances. See Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005)
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(inmate’s claim that prison officials failed to investigate his grievances that mailroom and
security staff was stealing his property was indisputably meritless because inmate did not have a
due process right to an investigation). Because “inmates do not have a due process right to have
their claims investigated at all,” Plaintiff does not state an adequate due process claim for failure
to investigate his alleged assault. See Wilkins v. Illinois Dep’t of Corr. No. 8-cv-732-JPG, 2009
WL 1904414, at *9 (S.D. Ill. July 1, 2009).
With respect to the defendants’ alleged failure to follow the PREA Mandate to fully
investigate Plaintiff’s allegations of sexual assault, it is true that prison officials have a duty
under the Constitution to protect prisoners from sexual assault. Farmer v. Brennan, 511 U.S. 825
(1994). However, the Constitution does not require officials to investigate or otherwise correct
wrongdoing after it has happened. Whitlock v. Brueggemann, 682 F.3d 567, 588-89 (7th Cir.
2012); Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). “Further, PREA does not give
prisoners a personal right to sue for an official’s failure to comply with the Act’s requirements.”
Garness v. Wisconsin Dep’t of Corr., No. 15-cv-787-BBC, 2016 WL 426611, at *2 (W.D. Wis.
Feb. 3, 2016) (citing Ross v. Gossett, No. 15-CV-309-SMY-PMF, 2016 WL 335991, at *4 (S.D.
Ill. Jan. 28, 2016)). See also J.K.J. v. Polk Cty., No. 15-cv-428-WMC, 2017 WL 28093, at *12
(W.D. Wis. Jan. 3, 2017) (“[T]here is no private right of action under the PREA.”). Count 6 shall
be dismissed with prejudice.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3), which is REFERRED
to United States Magistrate Judge Donald G. Wilkerson for a decision.
Plaintiff has filed a Motion for Status Report (Doc. 7), which is DENIED as moot, as this
Order provides the current status of the case.
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Plaintiff has filed a Motion Demanding Response from Court, which is DENIED as
moot, as this Order constitutes a response from the Court regarding Plaintiff’s Complaint.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against DODD and
MCBRIDE.
IT IS FURTHER ORDERED that COUNT 2 shall PROCEED against ANDERTON,
JACKSON, and PLOTTS.
IT IS FURTHER ORDERED that COUNT 3 shall PROCEED against MCCAIN,
ANDERTON, JACKSON, PLOTTS, DODD, MCBRIDE, and NALLEY.
IT IS FURTHER ORDERED that COUNT 4 shall PROCEED against APARICIO,
SANDERS, and GARNETT.
IT IS FURTHER ORDERED that COUNTS 5 and 6 are DISMISSED with prejudice
for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that as to COUNTS 1, 2, 3, and 4, the Clerk of Court
shall prepare for each defendant: (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 any 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 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
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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 each defendant (or upon defense counsel once an appearance is
entered) a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on the defendant or counsel. Any paper
received by a district judge or magistrate judge that has not been filed with the Clerk or that fails
to include a certificate of service will be disregarded by the Court.
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, including a decision on Plaintiff’s
Motion for Recruitment of Counsel (Doc. 3). Further, this entire matter shall be REFERRED to
United States Magistrate Judge Donald G. Wilkerson 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, despite the fact
that his application to proceed in forma pauperis has been granted. See 28 U.S.C.
§ 1915(f)(2)(A).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
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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: January 12, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge
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