Owens, et al v. Heck, et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. The Clerk is DIRECTED to ADD a Motion for Preliminary Injunction as a separate docket entry in CM/ECF. This motion is hereby REFERRED to a United States Magistrate Judge for prompt disposition. Signed by Judge David R. Herndon on 3/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

TYRONE OWENS,
No. B-09385,
KENDALL JACKSON,
Case No. 17-cv-233-DRH

Plaintiffs,
vs.
CHARLES HECK,
MARCUS MYERS,
LARUE LOVE,
JOHN BALDWIN,
C/O GILLEY,
OFFICER VANDEKERLOVE, and
CAROL MCBRIDE,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiffs Tyrone Owens and Kendall Jackson, inmates at Pinckneyville
Correctional Center (Pinckneyville) bring this action pursuant to 42 U.S.C. §
1983. Although Jackson is identified as a plaintiff in the case caption and is
referenced in the complaint, the complaint focuses on alleged deprivations of
Owens’ constitutional rights. Essentially, plaintiff alleges he was retaliated against
and placed in segregation for acting as a jailhouse lawyer. In connection with

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these claims, Owens seeks compensatory and punitive damages, as well as a
preliminary injunction ordering his release from segregation and ordering
Pinckneyville officials to stop retaliating against him by placing him in
segregation. In connection with his request for injunctive relief, Owens asks for an
“emergency hearing.”
This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim
on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 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 between possibility and plausibility.” Id. at 557. At this juncture, the

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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
According to the complaint, on three separate occasions, Heck, Myers,
Mcbride, and Love placed Owens in segregation in retaliation for assisting other
inmates in filing grievances and lawsuits involving Pinckneyville staff. (Doc. 1, p.
7). This allegation is also directed against an individual identified as “Lt. Sean
Furlow.” Id. However, Furlow is not a named defendant in this action. Owens
further alleges that he was the subject of several retaliatory “shake-downs”
(meaning Owens’ cell was searched by Defendants) (Doc. 1, pp. 7-9). During the
alleged shake-downs, legal paperwork belonging to other inmates was strewn
about Owens’ cell, confiscated, and/or destroyed. (Doc. 1, pp. 7-9). Owens’
placement in segregation and the repeated searches of his cell have interfered with
the ability of other inmates to access the Courts. (Doc. 1, pp. 7-9). At least one of
the shake-downs was ordered by non-party Lt. Sean Furlow.
Owens specifically alleges that on two occasions in 2016, Heck, Myers, and
McBride placed him in segregation in retaliation for his activities as a jailhouse
lawyer. At one point, Heck told Owens if “you keep filing lawsuits, I’ll keep you in
[segregation].” (Doc. 1, p. 9). Myers then said, “give his ass the max.” Id.

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Owens alleges that in 2017, Vandekerlove and Gilley searched his cell and
confiscated dozens of documents, including legal documents. (Doc. 1, p. 8-9).
This incident was apparently in retaliation for Owens’ attempt to assist Jackson
in filing his first lawsuit. Id. Although not entirely clear, it appears that following
this search, Owens was placed in segregation for a third time. (Doc. 1, pp. 7, 9)
Owens contends that he has filed grievances and/or written letters to Love
and Baldwin regarding the alleged constitutional violations. (Doc. 1, p. 8).
However, his complaints have been ignored. Id.
Owens claims that he has been in segregation for a total of a year as
retaliation for assisting other inmates in filing grievances and/or lawsuits. (Doc. 1,
p. 9). He states the continued segregation is causing severe headaches and
depression. Id. Additionally, Owens contends he is hearing voices. Id.
Finally,

Owens

alleges

that

Heck,

Myers,

Love,

Baldwin,

Gilley,

Vandekerlove, McBride, and non-party Lt. Sean Furlow conspired to violate his
rights by instituting a policy of retaliating against inmates that file grievances
and/or law suits by placing them in segregation. (Doc. 1, p. 7).
Discussion
The Plaintiffs
As a preliminary matter, it is necessary to clarify who is a plaintiff in the
instant action. The caption of the complaint lists Owens and Jackson as plaintiffs.

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However, the only plaintiff identified in the complaint’s list of parties is Owens.
Additionally, Owens is the only individual that has signed the Complaint.
There is no reason to believe Owens is an attorney. Federal Rule of Civil
Procedure 11(a) requires each party or his attorney to sign the complaint and all
other pleadings. Although individuals may represent themselves in federal court,

pro se litigants and non-lawyers cannot represent other individuals or
corporations. Nocula v. Tooling Systems International Corp., 520 F.3d 719, 725
(7th Cir. 2008) (“corporations cannot appear pro se, and one pro se litigant
cannot represent another”) (citations omitted). Therefore, Owens cannot proceed
as though he is representing anyone other than himself.
Not only must each plaintiff sign the complaint, each must also pay the
$400 filing fee ($350 for those granted pauper status). See Boriboune v. Berge,
391 F.3d 852, 855–56 (7th Cir. 2004). Each plaintiff's individual obligation to pay
the filing fee for this action was, theoretically, incurred at the time the action was
filed. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998). However, because the complaint was signed only by plaintiff Owens, the
filing fee will not automatically be assessed against each plaintiff. Rather, only
Owens is deemed liable for the fee at this point in time.
For these reasons, Jackson will be dismissed without prejudice.
The Defendants
It is also necessary to clarify who the defendants are in the instant action.
The first clarification relates to an individual identified as “Lt. Sean Furlow” or

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“Furlow.”

Although the body of the complaint raises several allegations with

regard to this individual, he is not identified as a defendant in the caption of the
complaint or in section of the complaint that identifies the parties. Because this
individual is not listed in the caption by name or by Doe designation, he will not
be treated as a defendant in this case, and any claims against him should be
considered dismissed without prejudice. See FED. R. CIV. P. 10(a) (noting that
the title of the complaint “must name all the parties”); Myles v. United States, 416
F.3d 551, 551–52 (7th Cir. 2005) (to be properly considered a party a defendant
must be “specif[ied] in the caption”); Id. at 553 (“[It is] unacceptable for a court to
add litigants on its own motion. Selecting defendants is a task for the plaintiff, not
the judge.”).
The second clarification relates to McBride. Owens has filed a motion to
dismiss McBride. (Doc. 6). The motion to dismiss shall be GRANTED and all
claims as to this defendant shall be dismissed without prejudice.
Owens’ Claims
The Court finds it convenient to divide the pro se action into two 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. Any other
claim that is mentioned in the complaint but not addressed in this Order should
be

considered dismissed

without

prejudice

as

inadequately pled

the Twombly pleading standard.
Count 1 –

First Amendment claim for retaliation for acting as a
jailhouse lawyer as to all defendants.

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under

Count 2 –

Conspiracy claim as to all defendants.

For reasons discussed below, Count 1 survives preliminary review.
Count 2 shall be dismissed without prejudice for failure to state a claim.
Count 1
Owens complains that he was retaliated against and placed in segregation
for acting as a jailhouse lawyer for other inmates. Courts have recognized such
claims as viable under the First Amendment. See Bridges v. Gilbert, 557 F.3d
541, 554 (7th Cir. 2009) (citation omitted) (“If a prisoner is transferred for
exercising his own right of access to the courts, or for assisting others in
exercising their right of access to the courts, he has a claim under § 1983.”); see

also L'Heureux v. Ashton, 1996 WL 55707, at *1 (1st Cir. 1996) (collecting
cases). 1
Heck, Myers, Gilley, and Vandekerlove
Owens alleges that Heck, Myers, Gilley, and Vandekerlove were directly
involved placing him in segregation and/or in shake-downs of his cell. Owens
further alleges that these acts were in retaliation for his activities as a jailhouse
lawyer. This is sufficient to survive preliminary review as to these defendants.
Accordingly, Count 1 shall receive further review as to Heck, Myers, Gilley, and
Vandekerlove in their individual capacities only. Owens may not pursue any

In the instant case, Owens contends he was disciplined with segregation. Assuming Owens was
punished only with segregation, the bar imposed by Edwards and Heck is not applicable. See
Antoine v. Ramos, 497 F.App’x. 631, 634 (7th Cir. 2012) (“the bar imposed by Edwards and Heck
has no application to an inmate who was punished only with segregation”).
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claims against these defendants in their official capacities. See Will v. Mich. Dep't

of State Police, 491 U.S. 58, 71 (1989) (holding that “neither a State nor its
officials acting in their official capacities are ‘persons' under § 1983”).
Baldwin and Love
Owens does not allege any specific facts suggesting that Baldwin or Love
were directly involved in the alleged retaliatory acts. However, Owens does allege
he corresponded with Baldwin and Love regarding the alleged constitutional
violations and that his correspondence was ignored. As is explained more fully
below, the Court finds that Owens’ allegations in this regard are sufficient (barely)
to survive preliminary screening.
A defendant in a § 1983 action cannot be held liable under a theory of

respondeat superior. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).
Rather, in order to hold an individual liable under Section 1983, a plaintiff must
show that the defendant was personally responsible for the deprivation of his
constitutional rights. Wilson v. Warren Cty., Illinois, 830 F.3d 464, 469 (7th Cir.
2016). “This is a mental state requirement and requires plaintiffs to prove more
than mere negligence.” Wilson, 830 F.3d at 469. A prison official is personally
responsible “if the conduct causing the constitutional deprivation occurs at his
direction or with his knowledge and consent.” Id. (internal quotations omitted)
(quoting Gentry, 65 F.3d at 561). Put another way, personal involvement can be
alleged by claiming that the defendant knew “about the conduct and facilitate[d] it,

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approve[d] it, condone[d] it, or turn[ed] a blind eye for fear of what they might
see.” Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988).
At issue here is whether Butler and Love knew about the alleged retaliation
and facilitated, approved, condoned, or turned a blind eye to it. The Seventh
Circuit has held that correspondence from an inmate to “a prison administrator
may...establish a basis for personal liability under § 1983 where that
correspondence provides sufficient knowledge of a constitutional deprivation.”

Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015). Although Perez involved
deliberate indifference to medical needs, nothing in the opinion indicates that the
holding is limited to such claims. Further, the Appellate Court in Perez relied, in
part, on Gentry v. Duckworth, a § 1983 action involving an inmate’s right of
access to the courts. The Seventh Circuit summarized Gentry as follows:
[in Gentry], an inmate claimed that his right of access to the courts
was violated because he was denied scribe materials (e.g., paper,
some means of writing, and access to notary services) by prison
guards. He sent many letters to the superintendent concerning his
claims, which went unanswered. Although the superintendent may
not have been directly responsible for the constitutional deprivation,
we concluded that the superintendent knew of the denial of scribe
materials because of the prisoner's “many letters” to him, and that
the superintendent had systematically ignored these requests for
redress. We thus allowed the inmate's § 1983 action to survive
summary judgment.

Perez, 792 F.3d at 782.
In the instant case, the complaint includes three allegations pertaining to
potentially relevant correspondence. First, Owens alleges he filed two previous
grievances that were never returned to him. (Doc. 1, p. 8). This allegation is not

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connected with any particular individual and does speak to the personal
responsibility of Baldwin or Love. Second, Owens alleges he filed a grievance in
“early 2015” that was “returned and sent” to Baldwin. (Doc. 1, p. 8). The alleged
constitutional violations at issue in the instant case occurred in 2016 and 2017. A
grievance that was allegedly sent to Baldwin in “early 2015” cannot possibly speak
to Baldwin’s knowledge of unconstitutional violations that are alleged to have
occurred in 2016 and 2017. Accordingly, this allegation does not support a claim
as to either Defendant. Third, Owens alleges that he submitted correspondence to
Baldwin and Love “over a year” ago and that the correspondence has been
ignored. (Doc. 1, p. 9). This allegation indicates that Owens submitted
correspondence to Baldwin and Love in early 2016 (the Complaint was filed in
March 2017). Owens does not provide any detail with regard to the content of the
correspondence. However, when viewed in the context of the entire complaint, it is
evident that Owens is alleging he relayed information pertaining to Pinckneyville
staff retaliating against him for assisting other inmates with filing grievances
and/or lawsuits. Given that two of the alleged acts of retaliation occurred in 2016,
it is possible that this correspondence related to one or more of those incidents. If
Baldwin and Love received detailed correspondence regarding a constitutional
deprivation and turned a blind eye, they may be subject to liability under § 1983.
However, logic dictates that any such liability would only extend to acts of
retaliation occurring after Baldwin and Love were notified and failed to act.

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Considering the authority discussed above, the Court finds that Owens has
alleged just enough to survive threshold review as to Baldwin and Love with
respect to Count 1. Count 1 shall receive further review as to Baldwin and Love in
their individual capacities. Further, because Owens is pursuing injunctive relief,
the Court will allow Count 1 to proceed against Baldwin (the current director of
IDOC) and Love (the assistant warden of operations at Pinckneyville) for purposes
of carrying out any injunctive relief only. See Gonzalez v. Feinerman, 663 F.3d
311, 315 (7th Cir. 2011).
Count 2
Civil conspiracy claims are cognizable under § 1983. See Lewis v.

Washington, 300 F.3d 829, 831 (7th Cir. 2002) (recognizing conspiracy claim
under section 1983). “[I]t is enough in pleading a conspiracy merely to indicate
the parties, general purpose, and approximate date....” Walker v. Thompson, 288
F.3d 1005, 1007-08 (7th Cir. 2002). See also Hoskins v. Poelstra, 320 F.3d 761,
764 (7th Cir. 2003); Tierney v. Vahle, 304 F.3d 734, 740 (7th Cir. 2002).
Owens has not presented sufficient factual allegations to proceed on his
conspiracy claim against any named defendants. Though he generally alleges that
the defendants conspired to retaliate against him, he does not allege an
approximate date that the conspiracy started. Without alleging an approximate
date, Owens has failed to provide the bare minimum information required to
make out a claim for conspiracy. Accordingly, Count 2 will be dismissed without
prejudice as to all defendants for failure to state a cognizable claim.

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Request for Preliminary Injunction
In his request for relief, Owens has requested a preliminary injunction
ordering his release from segregation and ordering Pinckneyville officials to stop
retaliating against him by placing him in segregation. In connection with his
request for injunctive relief, Owens asks for an “emergency hearing.”
The Court finds that Owens’ request for preliminary injunctive relief
warrants prompt consideration. Accordingly, the clerk shall be directed to add
Owens’ motion for preliminary injunction as a separate docket entry. Further,
Owens’ request for a PRELIMINARY INJUNCTION is REFERRED pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c) to a United States Magistrate Judge,
who shall resolve the request as soon as practicable
Pending Motions
Owens’ motion for leave to proceed In Forma Pauperis (Doc. 2) shall be
addressed in a separate Order of this Court. However, for purposes of
determining how service of process shall proceed, the Court observes that Owens
appears to qualify for pauper status. Therefore, service of summons and the
Complaint will be effected at government expense. See 28 U.S.C. § 1915(d). In
light of this ruling, Owens’ motion for service of process at government expense
(Doc. 4) shall be DENIED as MOOT.
Owens’ motion for recruitment of counsel (Doc. 3) shall be REFERRED to a
United States Magistrate Judge for a decision.

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Owens’ Motion to voluntarily dismiss Carol McBride (Doc. 6) is GRANTED.
Carol McBride shall be DISMISSED from this action without prejudice.
Disposition
The Clerk is DIRECTED to ADD a Motion for Preliminary Injunction as a
separate docket entry in CM/ECF. This motion is hereby REFERRED to a United
States Magistrate Judge for prompt disposition.
The Clerk is DIRECTED to TERMINATE JACKSON as a party in CM/ECF.
Owens’ motion to voluntarily dismiss MCBRIDE (Doc. 6) is GRANTED.
The Clerk shall TERMINATE MCBRIDE as a party in CM/ECF.
IT IS HEREBY ORDERED that COUNT 1 shall receive further review as to
HECK, MYERS, LOVE, BALDWIN, GILLEY, and VANDEKERLOVE in their
individual capacities. COUNT 1 shall proceed against LOVE and BALDWIN in
their official capacities for purposes of carrying out injunctive relief only.
IT IS FURTHER ORDERED that COUNT 2 is dismissed without prejudice
for failure to state a claim.
IT IS HEREBY ORDERED that as to COUNT 1 the Clerk of the Court shall
prepare for Defendants HECK, MYERS, LOVE, BALDWIN, GILLEY, and
VANDEKERLOVE: (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 a
defendant fails to sign and return the Waiver of Service of Summons (Form 6) to

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the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on that defendant, and the Court will
require that defendant to pay the full costs of formal service, to the extent
authorized by the Federal Rules of Civil Procedure.
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 Complaint and shall not waive filing a reply pursuant to 42 U.S.C. §
1997e(g).

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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United
States Magistrate Judge for further pre-trial proceedings, including a decision on
Owens’ Motion for Recruitment of Counsel (Doc. 3) and Motion for Preliminary
Injunction. Further, this entire matter shall be REFERRED to a United States
Magistrate Judge 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 § 1915, plaintiff will be required to pay the full amount of
the costs, even if his application to proceed in forma pauperis is 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

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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.

Digitally signed by
Judge David R. Herndon
Date: 2017.03.24
14:07:34 -05'00'

DATED: March 24, 2017

United States District Judge

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