Mays v. Illinois Department of Corrections et al

Filing 30

ORDER GRANTING IN PART AND DENYING IN PART 28 MOTION for Leave to File filed by Michael A. J. Mays; and FINDING AS MOOT 21 MOTION to Amend/Correct 1 Complaint filed by Michael A. J. Mays. The Clerk of Court is directed to file Plaintiff&# 039;s proposed second amended complaint as the First Amended Complaint. The Clerk of Court shall prepare for Defendants Officer Olson and Kimberly Butler: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Magistrate Judge Reona J. Daly on 1/3/2018. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL A.J. MAYS,
Plaintiff,
v.
S. EVANS,
Defendant.

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Case No. 3:16-cv-1307-SMY-RJD

ORDER
DALY, Magistrate Judge:
This matter is before the Court for consideration of Plaintiff’s second amended complaint,
which the Court construes as a Motion for Leave to File Second Amended Complaint (Doc. 28).
For the reasons set forth below, the Motion is GRANTED IN PART AND DENIED IN PART.
BACKGROUND
Plaintiff Michael Mays filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his
constitutional rights were violated while he was incarcerated at Menard Correctional Center. In
his complaint, Plaintiff alleges Officer Evans verbally harassed and then physically assaulted him
on December 14, 2015. Plaintiff’s complaint was screened pursuant to 28 U.S.C. § 1915A, and
he is proceeding on an Eighth Amendment excessive force claim against Defendant Evans.
Plaintiff filed a first amended complaint, construed by the Court as a motion for leave to
amend, on April 28, 2017 (Doc. 21). Prior to the entry of an order on his first motion for leave to
amend, Plaintiff filed a second amended complaint, construed by the Court as a second motion for
leave to amend (Doc. 28). Plaintiff’s filing of his second motion for leave to amend necessarily
moots his first motion for leave to amend. However, Plaintiff’s proposed amended complaints
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are, in substance, identical.
In his second motion to amend now before the Court, Plaintiff seeks to include additional
claims against Defendant Evans and add Officer Olson and Warden Kimberly Butler as
defendants.

More specifically, Plaintiff seeks to proceed on the following claims:

Count One:

First Amendment and Fourteenth Amendment retaliation claim against
Defendant Evans;

Count Two:

Eighth Amendment cruel and unusual punishment claim against Defendant
Evans;

Count Three: Fourteenth and Eighth Amendment cruel and unusual punishment claim
against Defendant Olson;
Count Four:

Eighth Amendment cruel and unusual punishment claim against Defendant
Butler;

Count Five:

Civil conspiracy claim against Defendants Evans, Olson, and Butler;

Count Six:

State law battery claim against Defendant Evans; and

Count Seven: State law intentional infliction of emotional distress claim against
Defendants Evans, Olson, and Butler.
DISCUSSION
Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading and that
leave to amend should be freely given "when justice so requires." The Seventh Circuit maintains
a liberal attitude toward the amendment of pleadings "so that cases may be decided on the merits
and not on the basis of technicalities." Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir.
1977). The Circuit recognizes that "the complaint merely serves to put the defendant on notice
and is to be freely amended or constructively amended as the case develops, as long as
amendments do not unfairly surprise or prejudice the defendant." Toth v. USX Corp., 883 F.2d
1297, 1298 (7th Cir. 1989); see also Winger v. Winger, 82 F.3d 140, 144 (7th Cir. 1996) (quoting
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Duckworth v. Franzen, 780 F.2d 645, 649 (7th Cir. 1985)) ("The Federal Rules of Civil Procedure
create [a system] in which the complaint does not fix the plaintiff's rights but may be amended at
any time to conform to the evidence."). A court may also deny a party leave to amend if there is
undue delay, dilatory motive or futility. Guise v. BMW Mortgage, LLC, 377 F.3d 795, 801 (7th
Cir. 2004).
The Court reviews the claims set forth in Plaintiff’s proposed second amended complaint
in light of the standards set forth above and finds as follows.
Count One: First Amendment and Fourteenth Amendment retaliation claim against
Defendant Evans
Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680 F.3d 859,
866 (7th Cir. 2012); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2002). At the pleading stage, “[a]ll
that need be specified is the bare minimum facts necessary to put the defendant on notice of the
claim so that he can file an answer.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
Identifying the protected activity and the act(s) of retaliation is all that is necessary. Id. Here,
Plaintiff alleges he requested a grievance form from Defendant Evans to complain about
Defendant’s derogatory comments, and was met with physical violence due to his request. Thus,
Plaintiff has met his pleading requirement and may proceed on a First Amendment1 claim of
retaliation against Defendant Evans.
Count Two: Eighth Amendment cruel and unusual punishment claim against Defendant
Evans
Plaintiff’s proposed Count Two closely tracks Count One that is currently pending in this

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Plaintiff does not allege that he was a pretrial detainee at the time relevant to his complaint.
Accordingly, he shall not proceed on claims brought pursuant to the Fourteenth Amendment.
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action. As Plaintiff has not substantially amended the allegations that support this claim, it shall
proceed on the basis articulated in the Court’s § 1915A screening order as an Eighth Amendment
excessive force claim.
Count Three: Fourteenth and Eighth Amendment cruel and unusual punishment claim
against Defendant Olson
Although Plaintiff characterizes his Eighth Amendment claim against Defendant Olson
broadly, the Court finds Plaintiff’s proposed complaint sets forth the following two distinct claims
against said Defendant: (1) an Eighth Amendment failure to protect claim; and (2) an Eighth
Amendment deliberate indifference claim. For the following reasons, Plaintiff may proceed on
both claims.
A plaintiff asserting a failure to protect claim must show that he was incarcerated under
conditions posing a substantial risk of serious harm, and defendants acted with “deliberate
indifference” to that danger. See Farmer v. Brennan, 511 U.S. 825 (1994); Pinkston v. Madry,
440 F.3d 879, 889 (7th Cir. 2006). In other words, a plaintiff must demonstrate that 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.” Lewis v.
Richards, 107 F.3d 549, 553 (7th Cir. 1997) (quoting McGill v. Duckworth, 944 F.2d 344, 348 (7th
Cir. 1991)).
Plaintiff alleges Defendant Olson was present while he was attacked by Defendant Evans
in his cell and initially failed to stop the attack, only pulling Defendant Evans off Plaintiff once he
saw Plaintiff was not fighting back. Based on the allegations in his proposed second amended
complaint, Plaintiff has stated a viable Eighth Amendment failure to protect claim against
Defendant Olson.
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Plaintiff has also stated a viable Eighth Amendment deliberate indifference claim against
Defendant Olson. In particular, Plaintiff alleges he asked Defendant Olson to take him to the
healthcare unit after the attack, but Defendant Olson denied his request and he was made to wait
until the next shift for medical treatment. Although the details are sparse, Plaintiff has met the
pleading requirements for an Eighth Amendment deliberate indifference claim.

See, e.g.,

Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997) (Holding that in order to establish
deliberate indifference to a medical condition, a prisoner must demonstrate that he suffered from a
condition that was sufficiently serious and that an official acted with a sufficiently culpable state of
mind in failing to address the condition).
Count Four: Eighth Amendment cruel and unusual punishment claim against Defendant
Butler
Plaintiff alleges Defendant Butler violated his constitutional rights by implementing
unwritten policies and procedures that allowed correctional officers such as Defendant Evans to
assault prisoners. Plaintiff further alleges Defendant Butler was aware of Defendant Evans’
reputation for assaulting black prisoners due to Defendant Evans’ prior conduct, but she failed to
take any action to prevent the assault on Plaintiff. Based on these allegations, the Court finds
Plaintiff is attempting to set forth an Eighth Amendment failure to protect claim against Defendant
Butler.
“A failure to protect claim may sound against even a ‘high-level’ official so long as the
averred risk is specific to a detainee, and not a mere general risk of violence.” Brown v. Budz, 398
F.3d 904, 909-10 (7th Cir. 2005). In Brown, the plaintiff, a Caucasian inmate, was attacked by an
individual with an allegedly known propensity toward attacking Caucasians. Id. at 913. Said
attack occurred after the individual was allowed unsupervised access to a general area of the
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prison, where the plaintiff was lounging.

Id.

The Court found the plaintiff’s allegations

indicated he was subjected to a heightened risk of assault and said allegations were sufficient to
meet the “substantial risk” consideration of a failure to protect claim against prison officials. Id.
The allegations here are analogous to those in Brown.

In particular, Plaintiff alleges that

Defendant Butler was aware of previous actions taken by Defendant Evans against black inmates,
but failed to take any action to protect Plaintiff. Although details concerning Defendant Evans’
“previous actions” are sparse, Plaintiff has adequately alleged that Defendant Butler was aware of
the risk posed to Plaintiff by Defendant Evans and failed to take action to remediate said risk.
Accordingly, Plaintiff has stated an Eighth Amendment failure to protect claim against Defendant
Butler.
Count Five: Civil conspiracy claim against Defendants Evans, Olson, and Butler
Although conspiracy claims under § 1983 are not subject to a heightened pleading
standard, a plaintiff must include more than just a bare assertion of conspiracy. See Cooney v.
Rossiter, 583 F.3d 967, 970 (7th Cir. 2009).

A plaintiff must identify the parties to the

conspiracy, the purpose of the conspiracy, and the approximate date of the conspiracy. Loubser v.
Thacker, 440 F.3d 439, 443 (7th Cir. 2006). Although Plaintiff has alleged the parties and
purpose of the conspiracy, he failed to allege the approximate date of the conspiracy and the Court
cannot properly infer said date based on the allegations before it. Plaintiff, therefore, shall not be
allowed to proceed on a claim of civil conspiracy.
Count Six:

State law battery claim against Defendant Evans

Under Illinois state law, battery is defined as the unauthorized touching of another’s
person. Welton v. Ambrose, 814 N.E. 962 (Ill. App. Ct. 2001). Plaintiff has stated a claim for
battery under Illinois state law against Defendant Evans. Plaintiff’s battery claim is based on the
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conduct underlying his Eighth Amendment excessive force claim against the same Defendant.
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 Seven: State law intentional infliction of emotional distress claim against Defendants
Evans, Olson, and Butler
Under Illinois state 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).

There are three requirements necessary to

demonstrate the intentional infliction of emotional distress: “(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.” Id. at
490. Although it does not require a contemporaneous physical injury, the tort does not extend to
“mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”

Id.

(quotations and citations omitted).
Plaintiff alleges he suffered injuries, as well as severe emotional distress and suffering as a
result of Defendants’ actions. In his proposed second amended complaint, Plaintiff alleges that
due to Defendant Evans’ attack, he suffers from post-traumatic stress disorder, bipolar disorder,
and hallucinations. Although the Court is mindful of the role Plaintiff alleges Defendants Olson
and Butler had in the attack, it finds the allegations in the proposed complaint are only sufficient to
state a claim of intentional infliction of emotional distress against Defendant Evans. The conduct
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of Defendant Evans, as opposed to Defendants Butler and Olson, could be said to be “truly
extreme and outrageous.”
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Leave to File Second Amended
Complaint (Doc. 28) is GRANTED IN PART AND DENIED IN PART and his Motion for
Leave to Amend the Complaint (Doc. 21) is FOUND AS MOOT. Plaintiff shall be allowed to
amend his complaint to proceed on the following claims (the enumeration of the counts as set forth
below shall be used by the Court and the parties for the remainder of this litigation):
Count One:

First Amendment retaliation claim against Defendant Evans;

Count Two:

Eighth Amendment excessive force claim against Defendant Evans;

Count Three: Eighth Amendment failure to protect claim against Defendant Olson;
Count Four:

Eighth Amendment deliberate indifference claim against Defendant Olson;

Count Five:

Eighth Amendment failure to protect claim against Defendant Butler;

Count Six:

State law battery claim against Defendant Evans;

Count Seven: State law claim for intentional infliction of emotional distress against
Defendant Evans.
The Clerk of Court is DIRECTED to file Plaintiff’s proposed second complaint as the
First Amended Complaint. The Court notes that although the entirety of Plaintiff’s proposed
second amended complaint will be filed, only the claims set forth above will proceed in this action.
The Clerk of Court shall prepare for Defendants Officer Olson and Kimberly Butler: (1)
Form 5 (Notice of a Lawsuit and Request to Waive Service of 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, and this Order to Defendants’ places of employment as identified by
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Plaintiff. If Defendants fail 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 Defendants, and the Court will require Defendants to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure. Plaintiff shall
serve upon Defendants (or upon defense counsel once an appearance is entered), a copy of every
further pleading or other document submitted for consideration by the Court. Plaintiff shall
include with the original paper to be filed a certificate of service stating the date on which a true
and correct copy of any 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.
IT IS SO ORDERED.
DATED: January 3, 2018
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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