Hoskins v. Spiller et al
Filing
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ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, granting 27 MOTION to Amend/Correct filed by Joshua Hoskins. Signed by Chief Judge Michael J. Reagan on 4/13/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA HOSKINS,
#R-54570,
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Plaintiff,
vs.
SPILLER,
WILLIAM SPILLER,
SHAUN GEE,
M. HUDSON,
F. EOVALADI,
R. ALLEN,
B. GUTREUTER,
A. LANG,
CORY BUMP,
C. FREIDRICH,
HARTMAN,
GRACIN, 1
J. CARTER,
K. BROOKMAN,
SARAH WOOLEY,
R. ENGELAGE,
and MR. WARD,
Defendants.
Case No. 16−cv–01232−MJR
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Joshua Hoskins, an inmate at Menard Correctional Center (“Menard”), brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. His First
Amended Complaint is now before the Court for preliminary review pursuant to 28 U.S.C.
§ 1915A. (Doc. 20). In it, Plaintiff describes a campaign of retaliation against him at Menard
1
Plaintiff filed a Motion to Correct Defendant Name (Doc. 27), in which he asks the Court to substitute
“Nurse L. Gregson” in place of “Gracin.” His motion is GRANTED. The Clerk shall be directed to
replace Gracin with Nurse L. Gregson as a defendant on the docketing sheet in CM/ECF. The Court will
refer to this defendant as “Nurse L. Gregson” in the screening order.
1
that culminated in his assault by Officer Spiller on June 10, 2016, and his subsequent denial of
medical care and mental health treatment. (Doc. 20, pp. 24-34). The allegations in the First
Amended Complaint give rise to claims against the defendants under the First, Eighth, and/or
Fourteenth Amendments.
Id.
In connection with these claims, Plaintiff seeks monetary
damages. (Doc. 20, p. 35). He also seeks a permanent transfer from Menard. 2 Id.
This case is now before the Court for preliminary review of the First Amended 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). Frivolousness is an objective standard that refers to a claim
that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th
Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
2
Plaintiff is not currently housed at Menard. (Doc. 28). During much of the pending case, he has been
temporarily housed at Stateville Correctional Center (“Stateville”) and more recently at Pontiac
Correctional Center (“Pontiac”). (See Docs. 11, 13, 14, 18, 28, 29). Pursuant to an order entered by this
Court in a related case on March 10, 2017, the Illinois Department of Corrections Director, John Baldwin,
was required to transfer Plaintiff from Menard no later than March 24, 2017. See Hoskins v. Dilday, No.
16-cv-00334-MJR-SCW (S.D. Ill. 2016) (Doc. 105). Should his situation change, necessitating a
temporary restraining order or preliminary injunction in this case, he may file a separate motion seeking
this relief under Rule 65 of the Federal Rules of Civil Procedure.
2
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 First Amended 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 First Amended Complaint otherwise survives preliminary
review.
Background
Plaintiff’s claims in this case are related to claims that are now pending before this Court
in two cases he filed on March 28, 2016, i.e., Hoskins v. Dilday, No. 16-cv-00334-MJR-SCW
(S.D. Ill. filed Mar. 28, 2016) (“lead case”) and Hoskins v. Dilday, No. 16-cv-00335-MJR-SCW
(S.D. Ill. filed Mar. 28, 2016) (“consolidated case”). In fact, his two prior cases are so closely
related to one another that this Court consolidated them on April 11, 2016. (Doc. 7, lead case;
Doc. 8, consolidated case). Plaintiff subsequently filed several motions seeking leave to amend
his complaints. (Docs. 8, 11, 15, lead case). This Court ultimately allowed him to proceed with
the claims set forth in his second amended complaint. (Doc. 23, lead case). However, in the
screening order entered on July 28, 2016, this Court warned Plaintiff that adding any more
“claims or parties . . . may lead to severance, dismissal, or additional fees.” (Doc. 22, n. 1, lead
case).
Within months, Plaintiff filed the instant action in the United States District Court for the
Central District of Illinois on October 24, 2016. (Doc. 1). He named twelve of the twenty
defendants from his consolidated cases as defendants in this action, as well as five others, for
violations of his constitutional rights at Menard in 2016. Id. The claims in both cases arise from
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assaults on Plaintiff in 2016. On November 8, 2016, the Central District transferred the case to
this District. (Doc. 9). At the time the case was transferred, a Motion for Leave to File
Amended Complaint was pending. (Doc. 7). Plaintiff subsequently filed a Second Motion for
Leave to File Amended Complaint, which this Court granted on January 11, 2017. (Docs. 17,
19). The First Amended Complaint is now subject to screening.
First Amended Complaint
Plaintiff alleges that he was assaulted by a member of Menard’s staff on June 10, 2016.
(Doc. 20, pp. 24-34). The assault was orchestrated by officials at Menard who were either upset
with Plaintiff for his involvement in a staff assault in 2013 or were retaliating against him for
filing grievances in 2016. Id. He names seventeen prison officials in connection with the
planned attack and the denial of medical care and mental health treatment in its wake. Id.
Plaintiff learned of the planned attack on March 25, 2016, when Sergeant William Spiller
approached Plaintiff in his cell in Menard’s North 2 Cell House and indicated that his brother,
Officer Spiller, worked in the same cell house. (Doc. 20, p. 24). Sergeant Spiller warned
Plaintiff that several prison officials, including Sergeant Spiller, Wooley, Allen, Bump,
Gutreuter, Eovaladi, Ward, Hudson, and “others,” were planning to have Officer Spiller attack
him “unexpectedly.” Id.
On May 19, 2016, Allen then stopped Plaintiff as he was walking past the South Cell
House and warned him that he “had a lot of more beatings coming from their staffs in the
future.” (Doc. 20, p. 24). Allen told Plaintiff of his plans to have Officer Spiller attack Plaintiff.
Ward added that “they” were going to make sure the officer was not disciplined for the attack on
Plaintiff. Id. Further, Ward said that Sergeant Spiller, Officer Spiller, Eovaladi, and “other
4
staffs” had already put the medical technicians (A. Lang, Engelage, and Stephanie, 3 among
others) on notice of these plans and instructed them to deny Plaintiff medical treatment for his
injuries after the attack. Id. They were also told not to document any injuries. Id. Wooley
explained that the attack was planned because Plaintiff pushed an unidentified “IDOC officer”
on February 19, 2013. Id. Ward indicated that Menard officials learned of the incident when
reviewing his disciplinary history record. Id.
On May 22, 2016, Hudson stopped Plaintiff in the North 2 Cell House and threatened to
“assault [him] again” by having other staff members carry out the attack for him. (Doc. 20, p.
24). He said, “[Y]ou gonna be seeing . . . [O]fficer Spiller real soon.” Id. Hudson indicated that
he, Eovaladi, and “others” were planning to have Officer Spiller attack Plaintiff while he was
working on that gallery. Id. Hudson admitted planning the attack in retaliation against Plaintiff
for reporting him to internal affairs earlier that year. Id.
On June 3, 2016, Sergeant Spiller returned to Plaintiff’s cell in Menard’s North 2 Cell
House. (Doc. 20, p. 25). He said that he was aware of the statements made by Allen, Wooley,
Ward, and Hudson. Id. Sergeant Spiller said that he intended to have “someone special to him”
assault Plaintiff. Id. Sergeant Spiller made this statement in response to Plaintiff’s comment that
he had “matters” pending against him in federal court. Id.
On June 10, 2016, Officer Spiller was assigned to work the 8 Gallery in Menard’s North
2 Cell House where Plaintiff was housed. (Doc. 20, p. 25). The officer approached Plaintiff in
his cell, placed him in cuffs, and twisted both of his wrists. Id. He then removed Plaintiff from
the cell and escorted him to the visiting room cage area. Id. On the way, Officer Spiller
continued twisting Plaintiff’s cuffs, which tore his skin and caused his wrists to bleed. Id. At the
3
Stephanie is referred to in the statement of claim but is not named as a defendant in this action. (Doc.
20, p. 24). Any claims against this individual are considered dismissed without prejudice.
5
same time, Officer Spiller asked, “[H]ow do[es] that feel, bitch?” Id. Once in the holding area,
Officer Spiller pushed Plaintiff onto the floor very hard, causing him to hit his forehead on a
brick wall and to suffer serious abrasions and swelling. Id. The officer then punched Plaintiff in
the chest and stomach twice. Id.
At the same time, Officer Spiller demanded to know if Plaintiff had a “complaint against
[his] love[d] one.” (Doc. 20, p. 25). The officer told Plaintiff that he intended to give him a
reason for filing his complaint. (Doc. 20, p. 26). Officer Spiller added that he was not worried
about being disciplined because Sergeant Spiller worked in internal affairs and planned the
attack with his “buddies,” Wooley, Gee, Ward, and “others.” Id. According to Officer Spiller,
Wooley, Ward, Gee, Eovaladi, Hudson, Gutreuter, Allen, Hudson, Carter, and “others” had him
personally assigned to the gallery to beat up Plaintiff. Id. Officer Spiller also told Plaintiff that
prison officials would not respond to his grievances. Id.
Later the same day, Nurse Gregson spoke with Plaintiff while making rounds to pass out
psychotropic medications. (Doc. 20, p. 26). Plaintiff complained of injuries to his forehead and
chest, including swelling and bruising, that resulted from Officer Spiller’s attack on Plaintiff
earlier that day. Id. Plaintiff requested ice packs and pain relievers. Id. The nurse refused to
treat Plaintiff, after explaining that Medical Technicians Lang, Engelage, Freidrich, “others,” and
Eovaladi instructed the nurse not to provide Plaintiff “with shit.” Id. The nurse explained that
this was in return for grievances Plaintiff filed in the past to complain about a mental health
professional, D. Franklin, 4 and because of the pushing incident in his disciplinary record. (Doc.
20, pp. 26-27). The nurse told Plaintiff that he was “screwed.” (Doc. 20, p. 27).
4
Franklin is not named as a defendant in this action. Any claims against this individual are considered
dismissed without prejudice.
6
On June 11, 2016, Engelage made medication rounds to Plaintiff’s cell. Id. When he
showed her his injuries, she said that “she didn’t give a fuck.” Id. She denied him all medical
treatment, including his psychotropic medications. Id. She went on to explain that she already
knew about his injuries because she discussed them with Officer Spiller, Eovaladi, Allen, Ward,
Wooley, Gutreuter, Hudson and “other staffs.” Id. They asked her not to document the injuries
or provide Plaintiff with any medical care. Id. For that reason, Plaintiff should expect nothing.
Id.
On June 14, 2016, Hartman refused to let Plaintiff speak with a psychiatrist. (Doc. 20, p.
27). He acknowledged Plaintiff’s assault by Officer Spiller and his injuries, including the knot
on his head. Id. He admitted hearing Officer Spiller, Gutreuter, Eovaladi, Allen, Spiller,
Wooley, Carter, and others discuss it. (Doc. 20, pp. 27-28). In fact, he was riding with Officer
Spiller on the day of the assault and knew it was going to occur. (Doc. 20, p. 28). Hartman also
said that Officer Spiller, Eovaladi, Wooley, Bump, and “others” told him that Plaintiff was not
allowed to speak with any medical or mental health provider. (Doc. 20, p. 27). Hartman was
also prohibited from documenting the injuries. Id.
On June 18, 2016, Ward observed Plaintiff standing in his cell and commented on the
fact that Plaintiff must have thought he was joking when he warned Plaintiff about the planned
attack on him. (Doc. 20, p. 29). Ward indicated that Officer Spiller was supposed to “fuck [him]
up bad,” but he failed to do so. Id. Ward, Wooley, Eovaladi, and Allen wanted him to inflict
more harm. Id. He then warned Plaintiff that the officers were monitoring his outgoing mail to
make sure he could not file a grievance to complain about the incident. Id.
7
On June 23, 2016, Plaintiff finally had an opportunity to speak with a mental health
professional, Ms. Creason. 5 (Doc. 20, p. 28). As soon as Officer Spiller, Hartman, and Gee
observed the interaction, they put an end to it. Id. They instructing Creason not to speak with
Plaintiff or let him speak with any other mental health or medical professional. Id. They said
that the order came from Sergeant Spiller and Bump. Id.
Sergeant Spiller later spoke with Plaintiff at his cell. (Doc. 20, p. 29). He admitted
knowing about every detail of the assault. Id. He explained that the officers knew of Plaintiff’s
complaints about prison staff that dated back to an assault on him in February 2016. Id.
Sergeant Spiller indicated that they were still monitoring Plaintiff’s outgoing mail and would
intercept and “burn” any grievances or appeals related to prison guard attacks on him. Id.
On July 7, 2016, Plaintiff encountered Brookman in the visiting room. (Doc. 20, p. 31).
Brookman told Plaintiff that he had reviewed more than a thousand kites that Plaintiff sent to
Carter to complain about Officer Spiller’s assault on him in June. Id. Brookman indicated that
Carter was also aware of what occurred. Id. In fact, both Brookman and Carter knew about the
planned assault before it happened and could have stopped it. Id. However, they declined to do
so because Plaintiff deserved to be attacked. Id.
On July 10, 2016, Aimee Lang passed by Plaintiff’s cell. (Doc. 20, p. 30). When she
saw Plaintiff, Lang stopped and acknowledged receipt of Plaintiff’s numerous requests for
medical treatment since the date of his assault. Id. She said that he should have gathered from
her silence that no medical treatment would be provided for his wrist, head, chest, or stomach
injuries. Id. His sick call slips were destroyed. Id.
5
Creason is not named as a defendant in this action, and all claims against this individual are considered
dismissed without prejudice.
8
On July 15, 2016, Sergeant Spiller spit in Plaintiff’s face as he sat on the floor of his cell.
(Doc. 20, p. 30). Sergeant Spiller explained that he was aware of Plaintiff’s numerous sick call
slips and complaints that documented the assault by Officer Spiller on June 10, 2016. Id. He
warned Plaintiff to stop filing them, or he would instruct Officer Spiller to inflict more harm. Id.
On July 16, 2016, Engelage visited Plaintiff at his cell and repeated what Sergeant Spiller
told Plaintiff the day before. (Doc. 20, p. 30). He called Plaintiff a “fucking dum[b] ass” for
thinking that he would receive medical treatment after the June assault, given that he did not
receive it after an assault that occurred earlier that year. Id. Engelage discouraged Plaintiff from
filing any additional sick call slips, stating that they would only be destroyed by staff. Id.
Later the same day, Bump walked by Plaintiff’s cell and spit on his chest. (Doc. 20, p.
30). The officer told Plaintiff to stop filing sick call slips. Id. He warned Plaintiff that if he
heard of any more medical complaints stemming from the assault by Officer Spiller, then he,
Eovaladi, and “other staffs” would “beat the hell out of [Plaintiff].” (Doc. 20, pp. 30-31).
On July 18, 2016, Gee informed Plaintiff that any written complaints he addressed to the
institution’s chief investigator would be reviewed by “any and all officers assigned to the
investigation units.” (Doc. 20, p. 31). He ordered Plaintiff to “quit sending fucking kites to their
investigation units requesting that Officer Spiller be disciplined for assaulting [Plaintiff].” Id.
He also discouraged Plaintiff from complaining about the denial of medical treatment for his
injuries. Id.
On July 20, 2016, Hudson spoke with Plaintiff. (Doc. 20, p. 32). He said that Plaintiff
would be beaten again, if he submitted another kite complaining about the June assault by
Officer Spiller. Id. In the event he did so, Hudson threatened to personally beat him along with
other officers. Id. He warned Plaintiff that he would get away with “victimizing” Plaintiff. Id.
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On August 11, 2016, Gutreuter called Plaintiff a “dum[b] fuck” for sending complaints to
the internal affairs unit. (Doc. 20, p. 32). He explained that Sergeant Spiller is Officer Spiller’s
brother and also works for internal affairs. Id. Moreover, it was internal affairs officers,
including Sergeant Spiller, Gutreuter, Eovaladi, Wooley, and “others,” that organized the attack
on Plaintiff. Id. They made sure Officer Spiller was assigned to Plaintiff’s gallery “just to fuck
[him] up.” Id. Further, they instructed medical staff to deny Plaintiff treatment for his injuries.
Id.
On September 14, 2016, Eovaladi approached Plaintiff while he was speaking with a
mental health professional. (Doc. 20, p. 32). Eovaladi told Plaintiff that he hoped he was not
surprised by Officer Spiller’s assault of him on June 10, 2016. Id. After all, Eovaladi warned
him earlier that year that he had “more beatens coming” from staff. Id. Eovaladi then admitted
to intercepting “most” of Plaintiff’s sick call slips and destroying them so that he could not
obtain medical care after the assault. (Doc. 20, pp. 32-33). He said that he never liked Plaintiff
after learning of his involvement in the February 2013 staff assault. (Doc. 20, p. 33).
Later the same day, Freidrich approached Plaintiff and said that he hoped Plaintiff
realized “months ago” that he would not be receiving medical care for the injuries he sustained
during the assault in June. (Doc. 20, p. 33). He told Plaintiff that all of the sick call slips he filed
would never be found. Id. Further, he stopped caring about Plaintiff’s safety as soon as he
learned that Plaintiff assault a prison official in 2013. Id.
On October 3, 2016, Wooley spoke to Plaintiff as he passed by her, asking him why he
ever thought Officer Spiller would be disciplined for his actions when the assault was planned by
prison staff. (Doc. 20, p. 34). She admitted that prison officials intercepted grievances he
10
directed to Warden Butler and internal affairs and destroyed them. Id. They also destroyed his
sick call slips during the month after the assault. Id.
On October 17, 2016, Carter visited Plaintiff at his cell. (Doc. 20, p. 33). He told
Plaintiff to stop filing kites expressing fear for his safety because Carter “don’t give a fuck.” Id.
If he cared, Carter said that he would have prevented Officer Spiller from assaulting him in the
first place. Id. He also could have ensured that Plaintiff received medical care following the
assault.
Id.
Carter explained that he simply had “no sympathy” for Plaintiff because he
assaulted a staff member in 2013. Id. Sometime in August, September, or October, Allen
approached Plaintiff and expressed the same sentiments as Carter and Freidrich. (Doc. 20, p.
34).
Plaintiff alleges that he spent more than a month suffering from his injuries following the
assault. (Doc. 20, p. 34). These injuries included a bruised forehead, headaches, dizziness, chest
pains, stomach pains, poor vision, memory loss, forehead pain, sleeplessness, difficulty focusing,
poor comprehension, depression, and anxiety, among other things. Id. He has been unable to
address these issues because prison officials have decided to “turn a blind eye” to his complaints.
Id.
Plaintiff now seeks compensatory damages in the amount of $28,000.00 and punitive
damages in the amount of $18,999.00 against the defendants. (Doc. 20, p. 35). He also seeks
injunctive relief in the form of an order permanently transferring him from Menard. Id.
Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the
Court deems it appropriate to organize the claims in Plaintiff’s pro se First Amended Complaint
11
into the following enumerated counts. The parties and the Court will use these designations in
all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit.
Count 1 – First Amendment claim of retaliation for filing grievances in 2016 and
for pushing a correctional officer in 2013.
Count 2 – Eighth Amendment failure to protect claim against Defendants for
failing to prevent Officer Spiller’s assault on Plaintiff on June 10, 2016.
Count 3 – Eighth Amendment excessive force claim against Officer Spiller for
assaulting Plaintiff on June 10, 2016.
Count 4 – Eighth Amendment deliberate indifference to serious medical needs
claim against Defendants for denying Plaintiff medical care and/or mental health
treatment after the assault that occurred on June 10, 2016.
Count 5 – Fourteenth Amendment claim against Defendants for intercepting or
otherwise impeding Plaintiff’s ability to file grievances regarding his June 2016
beating.
Count 6 – Conspiracy claim against Defendants for organizing or agreeing to
allow Officer Spiller to assault Plaintiff on June 10, 2016, and for then denying
him medical care and/or mental health treatment and access to grievances.
As discussed in more detail below, Counts 1, 2, 3, 4, and 6 survive screening and shall proceed
against those defendants who are identified below in connection with each claim. Count 5 shall
be dismissed with prejudice for failure to state a claim upon which relief may be granted.
Count 1
To state a First Amendment retaliation claim, a prisoner must demonstrate that: (1) he
engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would
likely deter First Amendment activity in the future; and (3) there was a causal connection
between the two. Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010) (citing Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)). Plaintiff claims that the defendants retaliated against
him for two reasons. First, they were upset by his decision to file a lawsuit against some of them
12
and grievances against others in 2016. Second, they learned of his involvement in a staff assault
in February 2013.
Filing a non-frivolous lawsuit or grievance against a prison official qualifies as
constitutionally protected activity that supports a retaliation claim. Perez v. Fenoglio, 792 F.3d
768, 783 (7th Cir. 2015) (citing Thomas v. Washington, 362 F.3d 969, 971 (7th Cir. 2004)). The
First Amendment “creates a right to ‘petition the Government [which by interpretation of the due
process clause of the Fourteenth Amendment has been held to include state and local
governments] for a redress of grievances.” Ogurek v. Gabor, 827 F.3d 567 (7th Cir. 2016).
Prison officials may not retaliate against prisoners for filing grievances or otherwise complaining
about the conditions of their confinement. Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012);
Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607, 619 (7th
Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139 (7th
Cir. 1988). In light of controlling precedent, Plaintiff’s decision to file a non-frivolous suit
and/or grievances in 2016 constitutes protected conduct that supports a retaliation claim.
In contrast, the pushing incident in February 2013 is not protected conduct and therefore
does not support a retaliation claim.
“[A] physical assault is not by any stretch of the
imagination expressive conduct protected by the First Amendment.” Wisconsin v. Mitchell, 508
U.S. 476, 484 (1993) (“[P]rotected activity” under the First Amendment does not include assault
or battery against an officer); McElroy v. Unknown Parties, No. 14-cv-01020, 2014 WL
5396172, at *2 (S.D. Ill. Oct. 21, 2014) (dismissing claim because “restraining guard” and
“physical assault” are not activities “protected under the First Amendment”).
Plaintiff shall be allowed to proceed with his retaliation claim in Count 1 against all of
the defendants at this time. However, the retaliation claim is limited to acts of retaliation taken
13
against Plaintiff for filing a suit and/or grievances at Menard in 2016. No retaliation claim shall
proceed against these defendants based on the pushing incident that occurred in 2013.
Count 2
To state an Eighth Amendment failure-to-protect claim, a prisoner must allege facts
suggesting that he faced a substantial risk of serious harm, and that the defendants knew of and
disregarded that risk. Wilson v. Ryker, 451 F. App’x 588, *1 (7th Cir. 2011) (citing Farmer v.
Brennan, 511 U.S. 825, 834, 837 (1994); Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010)).
A generalized risk of violence will not support a claim under the Eighth Amendment because
prisons are inherently dangerous. Wilson, 451 F. App’x at *1 (citing Brown v. Budz, 398 F.3d
904, 909, 913 (7th Cir. 2005); Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004)). Plaintiff
must instead allege a tangible threat to his well-being. Grieveson v. Anderson, 538 F.3d 763,
777 (7th Cir. 2008) (Billman v. Indiana Dep’t of Corrections, 56 F.3d 785, 788 (7th Cir. 1995)
(noting a distinction between actual and feared exposure)). “[I]t is the reasonably preventable
assault itself, rather than any fear of assault, that gives rise to a compensable claim under the
Eighth Amendment.” Jones v. Butler, 663 F. App’x 468, 470 (7th Cir. 2016) (quoting Babcock,
102 F.3d at 272).
The allegations in the First Amended Complaint suggest that the following defendants
were aware of a tangible threat to Plaintiff’s safety posed by the planned attack on June 10, 2016,
but failed to take steps to stop it: Sergeant Spiller, Gee, Hudson, Eovaladi, Allen, Gutreuter,
Bump, Freidrich, Hartman, Carter, Brookman, Wooley, and Ward. Count 2 shall proceed against
these defendants. This claim shall be dismissed without prejudice against all other defendants
because the allegations do not suggest that they knew of a tangible threat to Plaintiff’s safety
prior to June 10, 2016, and failed to take steps to intervene and stop the attack: Officer Spiller
14
(who is subject to Count 3), Lang, Gregson, and Engelage. Count 2 shall be dismissed without
prejudice against them.
Count 3
The intentional use of excessive force by prison guards against a prisoner without
penological justification gives rise to an Eighth Amendment claim for cruel and unusual
punishment. Wilkins v. Gaddy, 559 U.S. 34, 38-40 (2010); DeWalt v. Carter, 224 F.3d 607, 619
(7th Cir. 2000). To state an Eighth Amendment excessive force claim, a prisoner 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)).
The allegations in the First Amended Complaint suggest that Officer Spiller may have
used excessive force against Plaintiff on June 10, 2016. The officer allegedly twisted Plaintiff’s
handcuffs so tightly that he bled. (Doc. 20, pp. 24-34). Officer Spiller then pushed Plaintiff
down and caused him to sustain a head injury before punching him in the chest and stomach. Id.
There is no suggestion that Plaintiff provoked the beating. Id.
Accordingly, Count 3 shall receive further review against Officer Spiller. This claim
shall be dismissed with prejudice against all other defendants because no one else is named in
connection with the June 2016 assault on Plaintiff or any other use of excessive force against
him. See Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (“[I]ndividual liability
under 42 U.S.C. § 1983 can only be based on a finding that the defendant caused the deprivation
at issue.”).
Count 4
15
To establish a violation of the Eighth Amendment right to receive medical care, a
prisoner must demonstrate that he suffered from an objectively serious medical need and the
defendants responded to it with deliberate indifference. Caffey v. Maue, -- F. App’x --, 2017 WL
659349 (7th Cir. 2017) (citing Farmer, 511 U.S. at 834 (1994); Berry v. Peterman, 604 F.3d 435,
440 (7th Cir. 2010)). The numerous untreated injuries that Plaintiff describes, including a
bruised forehead, headaches, dizziness, chest pains, stomach pains, poor vision, memory loss,
forehead pain, sleeplessness, difficulty focusing, poor comprehension, depression, and anxiety,
suggest that he suffered from a serious medical need. Dobbey v. Mitchell-Lawshea, 806 F.3d
938, 941 (7th Cir. 2015) (noting that pain alone can be an objectively serious medical condition);
Hayes v. Snyder, 546 F.3d 516, 523 (7th Cir. 2008) (same). Further, the allegations indicate that
the following defendants were aware of Plaintiff’s medical needs and denied him access to
medical care and mental health treatment after the June beating: Officer Spiller, Sergeant Spiller,
Gee, Hudson, Eovaladi, Allen, Gutreuter, Lang, Bump, Freidrich, Hartman, Gregson, Carter,
Wooley, Engelage, and Ward. Count 4 shall proceed against these defendants for exhibiting
deliberate indifference to Plaintiff’s serious medical and/or mental health needs.
This claim is subject to dismissal against Hartman. The allegations do not suggest that he
was personally involved in the denial of Plaintiff’s medical care or mental health treatment. See
Palmer v. Marion County, 327 F.3d at 594. Accordingly, Count 4 shall be dismissed without
prejudice against this defendant.
Count 5
Grievance procedures are not constitutionally mandated. Owens v. Hinsley, 635 F.3d
950, 953 (7th Cir. 2011). Therefore, the failure of prison officials to follow a prison’s grievance
procedures does not give rise to a Fourteenth Amendment due process claim. Id. Any right to a
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grievance procedure is a procedural right and thus not implicated under the Due Process Clause.
Grieveson, 538 F.3d at 772. As such, the alleged mishandling of grievances by individuals who
otherwise did not participate in the underlying conduct states no claim. Owens, 635 F.3d at 953.
Count 5 cannot proceed against any of the defendants and shall be dismissed with
prejudice for failure to state a claim upon which relief may be granted. However, the dismissal
of this claim does not leave Plaintiff without recourse. The conduct giving rise to it (i.e., the
defendants’ use of excessive force against him, failure to protect him, and denial of adequate
medical care) supports claims against the defendants under Counts 1, 2, 3, 4, and 6.
Count 6
A civil conspiracy claim is cognizable under § 1983. Walker v. Thompson, 288 F.3d
1005, 1007-08 (7th Cir. 2002) (recognizing a conspiracy claim under § 1983). It is enough in
pleading a conspiracy to indicate the parties, the general purpose, and the approximate date of
the conspiracy. Id. at 1007. The allegations in the First Amended Complaint suggest that the
defendants reached an agreement regarding the June beating and the subsequent denial of
medical care and mental health treatment. (Doc. 20, pp. 24-34). Accordingly, the conspiracy
claim in Count 6 survives screening against all of the defendants.
Pending Motions
Plaintiff’s Motion to Correct Defendant Name (Doc. 27) is GRANTED.
Plaintiff’s Motion for Appointment of Counsel (Doc. 28) shall be REFERRED to United
States Magistrate Judge Stephen C. Williams for a decision.
Disposition
The Clerk is DIRECTED to replace “Gracin” with “NURSE L. GREGSON” as a
defendant on the docketing sheet in CM/ECF.
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IT IS HEREBY ORDERED that COUNT 5 is DISMISSED with prejudice against all
Defendants for failure to state a claim upon which relief may be granted.
COUNTS 1 and 6 will proceed against ALL NAMED DEFENDANTS.
COUNT 2 will proceed against Defendants WILLIAM SPILLER, GEE, HUDSON,
EOVALADI, ALLEN, GUTREUTER, BUMP, FREIDRICH, HARTMAN, CARTER,
BROOKMAN, WOOLEY, and WARD. This claim is DISMISSED without prejudice against
Defendants OFFICER SPILLER (#7356), LANG, GREGSON, and ENGELAGE for failure
to state a claim upon which relief may be granted.
COUNT 3 will proceed against Defendant OFFICER SPILLER (#7356). This claim is
DISMISSED with prejudice against all remaining defendants for failure to state a claim upon
which relief may be granted.
COUNT 4 will proceed against Defendants OFFICER SPILLER (#7356), WILLIAM
SPILLER, GEE, HUDSON, EOVALADI, ALLEN, GUTREUTER, LANG, BUMP,
FREIDRICH, HARTMAN, GREGSON, CARTER, WOOLEY, ENGELAGE, and WARD.
This claim is DISMISSED without prejudice against Defendant BROOKMAN for failure to
state a claim upon which relief may be granted.
With regard to COUNTS 1-4 and 6, the Clerk shall prepare for ALL NAMED
DEFENDANTS: (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 First Amended Complaint (Doc. 20), 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
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Defendant, and the Court will require that Defendant to pay the full costs of formal service, to
the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the First
Amended Complaint (Doc. 20) and shall not waive filing a reply pursuant to 42 U.S.C.
§ 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Stephen C. Williams for further pre-trial proceedings, including a decision on Plaintiff’s
Motion for Appointment of Counsel (Doc. 28), pursuant to Local Rule 72.2(b)(2) and 28 U.S.C.
§ 636(c), if all parties consent to such a referral.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
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consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, regardless of the fact
that his application to proceed in forma pauperis was 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: April 13, 2017
s/ MICHAEL J. REAGAN
U.S. Chief District Judge
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