Bentz v. Gregson et al

Filing 1

MEMORANDUM AND ORDER severing case number 16-1349-DRH. Signed by Judge David R. Herndon on 1/7/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID R. BENTZ, #S03210,
Plaintiff,
vs.

Case No. 16-cv-01349-DRH

SHANE GREGSON,
JENNIFER CLENDENIN,
DIA RODELY,
NATHANIAL MAUE,
WILLIAM QUALLS,
ADAM TOPE,
JACOB GUETERSLOH,
MICHAEL SCHNICKER,
RYAN SADLER,
TINA MONROE,
TYLER JAIMET,
CAMBELL,
BENIFIELD,
CONWAY,
DONALD LINDENBERG,
MICHAEL SAMUEL,
RAYMOND ALLEN,
KENT BROOKMAN,
MONJIE,
KRISTA ALLSUP,
MARK PHOENIX,
KIMBERLY BUTLER,
LASHBROOK,
DAVID DWIGHT,
LINDA CARTER,
JOHN TROST,
J. FOSS,
JAMES BUTLER,
ANGILA CRAIN,
AMMIE LANG,
SUSAN KULIK (KULIS),
S. MCGLORN,
DR. NEWBOLD,
MORGAN TEAS,
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JENNIFER WHITLEY,
JANE DOE 1,
JOHN DOE 1,
JANE DOE 2,
JANE DOE 3,
JOHN DOE 2,
ILLINOIS DEPARTMENT OF
CORRECTIONS,
WEXFORD HEALTH SERVICES,
MENARD CORRECTIONAL CENTER,
ILLINOIS STATE POLICE
DEPARTMENT, and
UNKNOWN PARTIES,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff David R. Bentz, an inmate who is currently incarcerated at
Menard Correctional Center (“Menard”), brings this pro se action for alleged
violations of his constitutional rights under 42 U.S.C. § 1983. (Doc. 2). Bentz’s
claims appear to stem from two distinct issues—the excessive use of force by
prison guards at Menard, and deliberate indifference to Plaintiff’s medical needs
stemming therefrom, and the repeated violations of Plaintiff’s right to access the
courts by Menard’s library staff. Plaintiff makes numerous claims in relation to
these two issues.

In connection with these claims, he names 35 individuals,

various private and public entities, and several Doe defendants. Notably, all but 5
of the named individuals and all of the named private and public entities were
defendants in a nearly identical lawsuit, Bentz v. Maue, Case No. 16-cv-854-NJR
(S.D. Ill. Sept. 22, 2016), filed by Plaintiff on July 27, 2016. Bentz v. Maue was
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dismissed with prejudice on September 22, 2016, well before the instant lawsuit
was filed.

Id. at Doc. 8.

In the instant action, Plaintiff seeks monetary

compensation, a declaratory judgment, and injunctive relief. (Doc. 2, pp. 39-41).
Specifically, Plaintiff seeks an order requiring the prison to provide him with
adequate medical care, a full investigation and prosecution of his alleged
assailants, and access to the courts.

Id.

Plaintiff also seeks a temporary

restraining order that would “prevent any future retaliation and/or assaults” of
Plaintiff by Maue, Conway, Qualls, Tope, and Guetersloh. (Doc. 2, p. 41).
This case is now before the Court for a preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to
promptly screen prisoner complaints to filter out nonmeritorious claims.

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U.S.C. § 1915A(a). The Court is required to dismiss any portion of the Complaint
that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune
from such relief. 28 U.S.C. § 1915A(b).
As a part of screening, the Court is also allowed to sever unrelated claims
against different defendants into separate lawsuits.

In George v. Smith, the

Seventh Circuit emphasized that the practice of severance is important, “not only
to prevent the sort of morass” produced by multi-claim, multi-defendant suits
“but also to ensure that prisoners pay the required filing fees” under the Prison
Litigation Reform Act.

George, 507 F.3d 605, 607 (7th Cir. 2007).

Severed

counts will be divided into new actions, given new case numbers, and assessed

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filing fees.
The Complaint
Plaintiff alleges that on May 11, 2014, Qualls, Tope, Guetersloh, Maue, and
multiple Unknown Parties beat him by punching him, grabbing him, slamming his
head face first into the wall, strangling him, and picking him up by the neck.
(Doc. 2, pp. at 6-7). Sadler, W. Monroe, T. Monroe, Schnicker, and other John
Does were allegedly present for this use of force and did not intervene. Id. After
the alleged assault, Plaintiff repeatedly requested medical care for a “fractured
jaw, chronic pain, and other medical needs to . . . Plaintiff’s neck and jaw areas”
and sought to talk to someone in internal affairs for fear of his life. (Doc. 2, pp. 710). Plaintiff admits that he filed a lawsuit, Bentz v. Qualls, 14-cv-562-MJR-SCW
(S.D. Ill. May 13, 2016), seeking treatment of his medical needs and relief from
“the immediate threat to . . . Plaintiff’s life as a result of defendant’s actions.”
(Doc. 2, p. 10). He filed Bentz v. Qualls on May 16, 2014 against several of the
defendants in this case, including Tope, Guetersloh, Monroe, Maue, Brookman,
Samuel, Qualls, Allen, Schnicker, Sadler, and Butler. Bentz v. Qualls, 14-cv-562MJR-SCW (S.D. Ill. May 13, 2016). Plaintiff’s claims in Bentz v. Qualls arise
from the same incident as the instant case and include claims of excessive force
and deliberate indifference to serious medical needs. Id. at Doc. 1, p. 6. Bentz v.
Qualls is ongoing, with a trial set for March 6, 2017. Id.
After the alleged assault in May 2014, Plaintiff claims he received threats
from various defendants and did not receive the medical care he sought for his

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injuries. (See Doc. 2, pp. 13, 15). In fact, Plaintiff did not see a doctor for his
injuries sustained in May until October 3, 2014. (Doc. 2, p. 16). In the interim,
Plaintiff was allegedly assaulted by Lindenberg and another corrections officer on
August 29, 2014, while waiting to see a doctor, and this incident became the
subject of another lawsuit filed by Plaintiff, Bentz v. Lindenberg, 15-cv-121-NJRDGW (S.D. Ill. Feb. 5, 2015). Bentz v. Lindenberg also shares several defendants
with the present case including Lindenberg, Butler, Lashbrook, Monju, and Trost.
Id.

Trost scheduled Plaintiff for X-rays of his injuries, which were done on

October 10, 2014. (Doc. 2, p. 16). Plaintiff also received dental X-rays in June
2015, which were ordered by Newbold. (Doc. 2, p 18).
Plaintiff allegedly continued to receive threats from corrections officers
throughout this time period for filing lawsuits and grievances against them and
their colleagues.

(Doc. 2, pp. 19-26, 28-29).

As a result of harassment by

Conway specifically, Plaintiff filed an amended complaint in one of his lawsuits in
January 2016 to include Conway as a defendant.

(Doc. 2, p. 24).

Plaintiff

contends that, due to e-filing and law library issues, he was forced to file this
amended complaint multiple times. (Doc. 2, pp. 24-26). Throughout this entire
time period, Plaintiff allegedly continuously requested medical care for his
injuries, was seen off and on by nurses and doctors, received multiple X-rays, and
was at times provided medication for his pain.

(Doc. 2).

Notably, all of the

aforementioned information in the Complaint in the instant case was included,
word-for-word, in Plaintiff’s complaint in Bentz v. Maue, Case No. 16-cv-854-NJR

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(S.D. Ill. Sept. 22, 2016), which was filed in this District in July 2016 and was
dismissed with prejudice September 22, 2016.
The Complaint in the instant case consists of photocopied pages from
Bentz v. Maue with three new pages in the statement of claim. (Doc. 2, pp. 3032).

In these pages, Plaintiff alleges his access to the courts has been

unconstitutionally and consistently impeded by the law library staff at Menard,
including Gregson, Clendenin, Rodely, Teas, Whitley, and other Unknown Parties.
(Doc. 2, p. 30). Plaintiff alleges that he filed grievances regarding the law library’s
violations of his right to access the courts as early as January 28, 2016, well
before Bentz v. Maue was filed. (Doc. 2, p. 30). Plaintiff also alleges difficulties
with the law library staff resulted in the dismissal of Bentz v. Maue. (Doc. 2, p.
31). According to the Complaint, the library staff initially failed to file Plaintiff’s
Motion to Proceed in forma pauperis (“IFP Motion”) in Bentz v. Maue, but after
Plaintiff received an order of the Court demanding Plaintiff pay a filing fee in full
or file an IFP Motion with a certified trust fund statement, the library staff filed
Plaintiff’s IFP Motion before the Court took any adverse action against Plaintiff.
Id. The Court denied Plaintiff’s IFP Motion on August 29, 2016, with a chance to
re-file by September 12, 2016, because it was handwritten and excluded
important information that is requested on the standard IFP form. (Doc. 2, p. 31;
Doc. 2-4, p. 10). Plaintiff then filed a Motion for Contempt of Court regarding
issues with the law library on September 2, 2016. (Doc. 2, p. 31).
Plaintiff alleges he provided the law library with an IPF Motion on a court

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form on September 9, 2016 in response to the August 29, 2016 order, which
Gregson stamped as having been filed that day, but then refused to file. (Doc. 2,
p. 31).

Plaintiff did not provide a copy of this allegedly completed motion.

Further, Plaintiff admits that he did not file his trust fund statement until
September 16, 2016, 4 days past the court-imposed deadline. Id. On September
22, 2016, the Court dismissed Bentz v. Maue for multiple reasons. (Doc. 2-4, p.
30).

Plaintiff falsely alleges that the library staff is squarely to blame for this

dismissal because they refused to file “several of this Plaintiff’s court ordered
motions.” (Doc. 2, p. 31). In fact, after review of the dismissal order, it is clear
the Court focused primarily on the fact that Plaintiff’s initial IFP Motion contained
false allegations regarding his financial status – a fact the Court was not aware of
until Plaintiff filed his trust fund account statement well past the deadline. (Doc.
2-4, p. 30). The Court also indicated in its dismissal order that it never received
a properly completed IFP Motion from Plaintiff, despite its several warnings to
Plaintiff that failure to provide one, along with a trust fund statement, would
result in dismissal. Id.
Discussion
Based on the allegations, the Court finds it convenient to divide the pro se
Complaint into the following enumerated claims. 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 regarding their merit.

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Count 1:

Eighth Amendment excessive force claim against Qualls,
Tope, Guetersloh, Maue, and multiple Unknown Parties
for assaulting Plaintiff on May 11, 2014;

Count 2:

Eighth Amendment excessive force claim against
Lindenberg for assaulting Plaintiff on August 29, 2014;

Count 3:

Eighth Amendment failure to intervene claim against
Sadler, Monroe, Schnicker, and Unknown Parties for
failing to intervene or stop Qualls, Tope, Guetersloh,
Maue, and other Unknown Parties from assaulting
Plaintiff on May 11, 2014;

Count 4:

Eighth
Amendment
deliberate
indifference
and
malpractice claims against Trost, J. Butler, Crain, Lang,
Kulis, McGlorn, Newbold, Foss, Jane Does 1, 2, and 3,
John Doe 1, Wexford Health Services, and Unknown
Parties for failing to provide adequate medical care for
Plaintiff’s head, jaw, and other injuries and pain between
May 2014 and at least December 2016;

Count 5:

Eighth Amendment deliberate indifference, failure to
intervene, negligence, defamation, intentional infliction
of emotional distress, and/or conspiracy claims against
Allsup, Phoenix, K. Butler, Lashbrook, Dwight, Carter,
Brookman, Monjie, Allen, Samuel, Conway, Benifield,
Campbell, Jaimet, Illinois State Police Department,
Menard Correctional Center, Illinois Department of
Corrections, and John Doe 2; and,

Count 6:

Violation of Plaintiff’s right to access the courts by
Gregson, Clendenin, Rodely, Teas, Whitley, and other
Unknown Parties of the Menard library staff from
January 2016 to at least December 2016.

Here, the Plaintiff has brought at least two potentially distinct sets of
claims—one for the excessive force allegedly used against Plaintiff and deliberate
indifference to the medical needs that resulted therefrom and another for the
Menard library staff’s alleged violation of Plaintiff’s right to access the courts. As
discussed above, at the screening stage, the Court may exercise its discretion and
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sever unrelated claims against separate defendants into separate cases. George,
507 F.3d at 607. The Plaintiff has attempted to intertwine the two sets of claims
by referring to the alleged denial of his right to access the courts that occurred in
Bentz v. Maue, and fully incorporating the complaint in that case into the instant
matter. See Bentz v. Maue, Case No. 16-cv-854-NJR (S.D. Ill. Sept. 22, 2016);
(Doc. 2, pp. 30-32).
Bentz v. Maue was dismissed with prejudice, and Plaintiff cannot revive
that suit in this manner. In his Complaint, he alleges the denial of his right to
access the courts was ongoing even before Bentz v. Maue was filed. (Doc. 2, p.
30). The new law library defendants are not associated with any of the defendants
in the portion of the case that is copied from the Bentz v. Maue complaint.
Further, Plaintiff does not connect the alleged 2016 access to courts violations
with the 2014 excessive use of force or 2014-2016 deliberate indifference claims.
Perhaps most telling in distinguishing all of Plaintiff’s claims in Counts 1-5 from
his access to courts claims in Count 6 is the fact that all of the other claims were
included, word for word, in Bentz v. Maue. The access to courts claim was only
tacked on in December 2016 in a transparent attempt to revive previously
dismissed claims and otherwise give Plaintiff a second bite at the apple.
Consistent with the George decision and Federal Rule of Civil Procedure
21, the Court shall sever the claims in Count 6, which are unrelated to Counts 1
through 5, into a separate action. The separate action will have a newly assigned
case number, and it shall be assessed a filing fee. The severed case shall undergo

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preliminary review pursuant to § 1915A after the new case number and judge
assignment has been made.
Counts 1 through 5 shall remain in this action. A separate order shall be
issued in this case to review the merits of these claims. Plaintiff shall be provided
with a copy of the merits order as soon as it is entered.

No service shall be

ordered on any defendant at this time. To the extent Plaintiff sought to bring
claims against individuals or entities not included in the case caption, these
individuals or entities will not be treated as defendants in this case, and any
claims against them should be considered dismissed without prejudice.

See

Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (defendants must
be “specif[ied] in the caption”).
Pending Motions
Plaintiff has filed a Motion for Leave to Proceed in forma pauperis (Doc. 1),
which will be addressed in a separate order.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s claims in COUNT 6, which are
unrelated to the claims in COUNTS 1 THROUGH 5, are SEVERED into a new
case against GREGSON, CLENDENIN, RODELY, TEAS, WHITLEY and
UNKNOWN PARTIES on the Menard library staff.
The claims in the newly severed case shall be subject to screening pursuant
to 28 U.S.C. § 1915A after the new case number and judge assignment is made.
In the new case, the Clerk is DIRECTED to file the following documents:

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This Memorandum and Order;
The Complaint (Doc. 2);
Plaintiff’s motion to proceed in forma pauperis (Doc. 1);
Plaintiff will be responsible for an additional $350 filing fee in the newly
severed case. 1 No service shall be ordered in the severed case until the § 1915A
review is completed.
IT IS FURTHER ORDERED that the only claims remaining in this
action are Counts 1 through 5 against defendants MAUE, QUALLS, TOPE,
GUETERSLOH,
BENIFIELD,

SCHNICKER,

CONWAY,

SADLER,

LINDENBERG,

MONROE,
SAMUEL,

JAIMET,
ALLEN,

CAMBELL,

BROOKMAN,

MONJIE, ALLSUP, PHOENIX, J. BUTLER, LASHBROOK, DWIGHT, CARTER,
TROST, FOSS, K. BUTLER, CRAIN, LANG, KULIK (KULIS), MCGLORN,
NEWBOLD, JANE DOE 1, JOHN DOE 1, JANE DOE 2, JANE DOE 3, JOHN
DOE 2, ILLINOIS DEPARTMENT OF CORRECTIONS, WEXFORD HEALTH
SERVICES, MENARD CORRECTIONAL CENTER, ILLINOIS STATE POLICE
DEPARTMENT, and UNKNOWN PARTIES.
IT IS FURTHER ORDERED that Defendants GREGSON, CLENDENIN,
RODELY, TEAS, WHITLEY, and UNKNOWN PARTIES on the Menard library
staff are TERMINATED from this action with prejudice.
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
1

Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is
also to be assessed in all civil actions, unless pauper status has been granted.

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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.

Judge Herndon
2017.01.08
12:56:06 -06'00'

DATED: January 7, 2017

United States District Court

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