Lacour v. Duckworth et al

Filing 14

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 8/3/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BUSTER LOUIS LACOUR,
#R21786,

)
)
)
Plaintiff,
)
)
vs.
)
)
T. DUCKWORTH,
)
SAM HENNRICH,
)
D. CRAIN,
)
CHARLES FRICKE,
)
ZACHARY HARVEY,
)
ILLINOIS DEPT. OF CORRECTIONS, )
MENARD CORRECTIONAL CENTER, )
MAJOR EBONIE,
)
and LT. MENDOZA,
)
)
Defendants. )

Case No. 17-cv-00453-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Buster Lacour, an inmate who is currently incarcerated at Menard Correctional
Center (“Menard”), brings this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 11).
According to the First Amended Complaint, 1 Plaintiff was beaten by prison guards at Menard on
March 15, 2017. (Doc. 11, pp. 1-35). The officials allegedly attempted to cover up their
misconduct by charging Plaintiff with numerous prison rule violations and punishing him with
disciplinary segregation. Id. He now claims that they conspired to violate his rights under the
First, Eighth, and Fourteenth Amendments and Illinois state law. Id. Plaintiff seeks declaratory
judgment, monetary damages, and injunctive relief. (Doc. 11, pp. 35-37; Doc. 12).
1

Before the Court screened the original Complaint pursuant to 28 U.S.C. § 1915A, Plaintiff submitted
proposed amendments to it. (Doc. 7). The Court would not accept the piecemeal amendments but granted
Plaintiff leave to file a First Amended Complaint. (Docs. 8-10). He did so on July 25, 2017. (Doc. 11).
The Complaint (Doc. 1) is thus considered void and is superseded by the First Amended Complaint
(Doc. 11).

1

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
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations in the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009). The First Amended Complaint survives screening.
First Amended Complaint
Plaintiff describes himself as a seriously mentally ill (SMI) inmate, who should not be
housed in isolation due to his condition. (Doc. 11, p. 5). Even so, he was placed in protective
custody from March 1 - 15, 2017, and from June 22 - July 13, 2017. Id. He was also punished
with disciplinary segregation from March 15 – June 15, 2017. (Doc. 11, pp. 12, 16). With the
exception of one week, he remained confined in isolation from March 1 - July 13, 2017. Id.

2

According to prison policy, inmates held in isolation are allowed no movement outside of
their cells, except for showers, medical call passes, scheduled mental health meetings, and
visitations. (Doc. 11, p. 5). Pursuant to this policy, Plaintiff was denied time outside of his cell.
(Doc. 11, pp. 5-6). He claims that the conditions of his confinement caused him to become
depressed and resulted in the incident described herein. (Doc. 11, p. 7).
On March 15, 2017, Officer Hennrich approached Plaintiff’s cell, requested his
identification card, and demanded to see his mirror. (Doc. 11, p. 7). Plaintiff asked to know why,
and Hennrich said, “I saw your broken mirror sticking out of your cell bars.” Id. Plaintiff told the
officer that he was mistaken and must be at the “wrong cell” because his mirror was brand new.
Id.
Hennrich left and returned minutes later with Lieutenant Fricke, Sergeant Crain, and
Officer Duckworth. (Doc. 11, pp. 7-8). Fricke ordered Plaintiff to “cuff up.” (Doc. 11, p. 8).
Plaintiff asked him to explain why. Id. Fricke responded, “[Y]our [sic] going to N2 seg.” Id.
Plaintiff described his response as follows: “Plaintiff, feeling some type of way, due to this
defendant’s unreasonable request, asked for a crisis team, and informed defendant, Fricke that he
was on psych medication, he needs his meds because he was going through it.” Id. Fricke then
asked Plaintiff whether he was refusing to cuff up. Id. Before Plaintiff answered, Fricke, Crain,
Duckworth, and Hennrich left the area. Id.
Moments later, they returned with Major Ebonie and Officer Harvey. (Doc. 11, p. 8). The
officers again ordered Plaintiff to “cuff up.” Id. When he repeated his request for a crisis team
and medication, Ebonie responded, “No. Cuff up now!” Id. At this point, the defendants
appeared aggravated, so Plaintiff replied, “I’ll cuff up but, [sic] I aint [sic] trying to get beat up.”
(Doc. 11, pp. 8-9). He agreed to cuff up a “few minutes” later. (Doc. 11, p. 9).

3

As soon as the cuffs were secure, Ebonie and Fricke snatched Plaintiff by his neck,
pushed the back of his head down “hard and fast,” and rushed him out of the back door of the
gallery into a hallway that divides the N1 and N2 Cell Houses. (Doc. 11, p. 9). Fricke then
slammed Plaintiff’s head into the mailboxes and began punching him in the chest. Id. At the
same time, Fricke yelled, “[W]hen I tell you to cuff up, bitch, you cuff up!” Id. While still in the
hallway, Ebonie, Fricke, and Crain were joined by the Orange Crush Tactical Team. 2 Id.
Together, they “beat [P]laintiff about the body, slammed his head into the wall, and continued to
violently assault him.” Id. As they did so, Ebonie said, “Bitch you do what I say.” Id.
Plaintiff sustained numerous injuries during the beating that required medical attention.
(Doc. 11, p. 10). His forehead was bleeding, and his eye was swollen shut. Id. He was taken to
the health care unit (HCU). Id.
Before being treated, the Orange Crush Tactical Team “snatched him back out of the
HCU.” (Doc. 11, p. 10). As he screamed and cried in pain, an unknown member of the team
warned him to “shut your mouth” and “dont say shit bitch [sic].” Id. The team then dragged
Plaintiff on the pavement to segregation in the prison’s N2 Cell House. Id. He was taken upstairs
into a secluded area, where he was beaten a second time. Id. This time, the team hit Plaintiff in
the back of his head and chest and then slammed his head into the wall. Id. When Plaintiff
complained of pain, the team stripped him of his shoes and clothing and disposed of it all. Id.
The team then dragged Plaintiff down the gallery and placed him into Cell 46 “naked and
battered.” (Doc. 11, p. 11). Inmates in surrounding cells called out to Plaintiff to make sure he

2

Plaintiff did not name any members of the Orange Crush Tactical Team as defendants in this action. All
claims against these individuals are therefore 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) (holding that to be properly considered a party, a defendant must be
“specif[ied] in the caption”).

4

was okay. Id. Unable to summon the energy to explain what happened, he simply said, “[T]hey
jumped me, i’m [sic] losing consciousness.” Id.
When Plaintiff regained consciousness, he was sitting in a chair “all beat up and
bleeding.” (Doc. 11, p. 11). All of the previously identified defendants, including Ebonie, were
in the room. Id. They began questioning Plaintiff about why he had harmed himself. Id. Plaintiff
stated, “[Y]a’ll jumped me.” Id. Defendants placed Plaintiff on suicide watch. Id.
The following day, Plaintiff saw a mental health professional (MHP), MHP Weatherfur, 3
who asked him what happened. (Doc. 11, p. 12). Plaintiff told Weatherfur about the incident. Id.
Weatherfur notified internal affairs (IA). Id. The same day, IA officers met with Plaintiff, took
his statement, and photographed his injuries. Id.
On March 21, 2017, Lieutenant Shaunbach 4 also interviewed Plaintiff and took his
statement. (Doc. 11, p. 12). Following the investigation, Plaintiff was issued three disciplinary
tickets, for which he received three months of disciplinary segregation that ended on June 15,
2017. (Doc. 11, pp. 12, 16). He was demoted to C-grade status on March 22, 2017, and promoted
to B-grade status on June 22, 2017. (Doc.11, pp. 16, 18).
Plaintiff served his three months of disciplinary segregation in Menard’s N2 Cell House
(Cell 14 in Gallery 4). (Doc. 11, p. 12). He was denied all medical treatment for his injuries. Id.
He was “continuously” harassed by “other c/o’s, acting in concert with defendants, through a
meeting of the minds.” Id. Plaintiff identifies Mendoza as one of these defendants but does not
describe the retaliatory actions taken against him by this defendant. (Doc. 11, p. 13). Plaintiff,
along with other inmates, filed multiple grievances to complain of the “constant harassment.” Id.

3

Weatherfur is not named as a defendant in this action, and Plaintiff asserts no claims against this
individual.
4
Shaunbach is not a defendant in this action, and no claims are asserted against him.

5

Unfortunately, however, it only got worse. (Doc. 11, p. 13). Staff disposed of or delayed
responses to Plaintiff’s grievance(s) addressing the assault. Id. For more than a month, he
received no mail from his family or friends. (Doc. 11, p. 15). The prison law library never sent
him confirmation that his amended complaint was timely filed in June, prompting him to request
an extension of the deadline. (Doc. 11, pp. 14-15). Duckworth also conducted a cell shakedown
and “tore up” Plaintiff’s sheets on July 23, 2017. (Doc. 11, p. 21 at n.3).
Further, after he was promoted to B-grade status on June 22, 2017, Plaintiff was subject
to “new” rules governing the administrative of discipline that took effect on April 1, 2017. (Doc.
11, pp. 16-18) (citing 20 ILL. ADMIN. CODE. § 504.130(a)(2)). Plaintiff maintains that he was
subject to the new rules only because the adjustment committee delayed the issuance of its final
disciplinary report by twenty-three days, i.e., until April 14, 2017. (Doc. 11, pp. 19-20). The
rules imposed harsher restrictions on inmate privileges. (Doc. 11, pp. 16-20). Specifically,
Plaintiff was subject to phone and commissary restrictions that he challenged by writing
Counselor Price and the warden. 5 (Doc. 11, p. 20). He received no response. Id. He was also
denied grievance forms by various prison staff members throughout this same time period,
including Ebonie, Crain, Fricke, Mendoza, Harvey, Duckworth, and Hennrich. (Doc. 11, pp. 6,
20). Plaintiff claims that the new rules regarding B-grade restrictions violate his Fourteenth
Amendment rights and the Illinois Constitution. (Doc. 11, pp. 16-18, 20).
Plaintiff generally alleges that the conditions of his confinement at Menard have had an
adverse psychological effect on him. (Doc. 11, p. 21). He suffers from “extreme paranoia and
attention deficit disorder.” Id. He expresses concern that he “may” become incompetent. Id.
Even so, he was removed from SMI status without a hearing requiring his presence. Id.
5

Neither of these individuals is identified as a defendant in this action, so all potential claims against both
are considered dismissed without prejudice. See FED. R. CIV. P. 10(a); Myles, 416 F.3d at 551-52.

6

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 has
reorganized the claims in Plaintiff’s pro se First Amended Complaint into the following
enumerated counts:
Count 1 -

Eighth Amendment excessive force claim against Ebonie, Fricke,
and Crain for beating Plaintiff on March 15, 2017.

Count 2 -

Eighth Amendment claim against Duckworth, Harvey, and
Hennrich for failing to intervene and protect Plaintiff as he was
beaten by prison officials on March 15, 2017.

Count 3 -

Eighth Amendment claim against Ebonie, Fricke, Crain,
Duckworth, Harvey, and Hennrich for failing to ensure that
Plaintiff received medical care for the injuries he sustained on
March 15, 2017.

Count 4 -

Eighth Amendment claim against Ebonie, Fricke, Crain,
Duckworth, Harvey, and Hennrich for ignoring Plaintiff’s request
for a crisis team on March 15, 2017.

Count 5 -

Claim against Defendants for placing Plaintiff, who is a seriously
mentally ill (SMI) inmate, in segregation for prolonged periods of
time without privileges or access to out-of-cell time, in violation of
the First Amendment, the settlement agreement in Rasho v.
Baldwin, and Illinois state law.

Count 6 -

Eighth and/or Fourteenth Amendment claim against Defendants
for removing Plaintiff from SMI status.

Count 7 -

Fourteenth Amendment claim against Defendants for depriving
Plaintiff of a protected liberty interest without due process of law
by punishing him with three months of segregation for three
disciplinary tickets he received on or around March 21, 2017.

Count 8 -

First Amendment retaliation claim against Defendants for
harassing Plaintiff, interfering with his personal mail, interfering
with his ability to file an amended complaint, and shaking down
his cell.

Count 9 -

Conspiracy claim against Defendants under 42 U.S.C. § 1985 or
7

the common law.
Count 10 -

Fourteenth Amendment claim against Defendants for mishandling
Plaintiff’s grievances, by denying access to them, disposing of
them, ignoring them, and/or denying them.

Count 11 -

Illinois state law claims against Defendants for the intentional
infliction of emotional distress.

Count 12 -

Illinois state law claim for indemnification against the Illinois
Department of Corrections and Menard Correctional Center.

The parties and the Court will continue using these designations in all future pleadings and
orders, unless otherwise directed by a judicial officer of this Court. The designation of these
claims does not constitute an opinion regarding their merits. Any claims that are mentioned in
the First Amended Complaint but not identified above should be considered dismissed
without prejudice from this action.
Count 1
The Eighth Amendment to the United States Constitution prohibits cruel and unusual
punishment. Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006) (citing Robinson v. California,
370 U.S. 660 (1962)). The intentional use of excessive force by prison guards against an inmate
without penological justification constitutes cruel and unusual punishment. See Wilkins v. Gaddy,
559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). The “core
requirement” of an excessive force claim is that the prison guard “used force not in a good-faith
effort to maintain or restore discipline, but maliciously and sadistically to cause harm.”
Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (quoting Whitley v. Albers, 475 U.S.
312, 319 (1986)). See also Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Santiago v. Walls,
599 F.3d 749, 757 (7th Cir. 2010).

8

The allegations in the First Amended Complaint support an excessive force claim against
the three defendants named in connection with this claim, i.e., Ebonie, Fricke, and Crain.
Plaintiff alleges that he was beaten by these defendants on March 15, 2017. (Doc. 11, pp. 1-35).
At the time, he was in compliance with orders to “cuff up.” Id. Count 1 is subject to further
review against Ebonie, Fricke, and Crain. Because no other defendants are named in connection
with this claim, Count 1 shall be dismissed with prejudice against the other named defendants.
Count 2
Prison officials may be liable for failing to intervene and take reasonable steps to stop the
use of excessive force by fellow officers, if they have “a realistic opportunity to intervene and
prevent the harm from occurring” but fail to do so. Green v. Chvala, 567 F. App’x 458 (7th Cir.
2014) (quoting Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009); Yang v. Hardin, 37 F.3d
282, 285 (7th Cir. 1994)). In the First Amended Complaint, Plaintiff alleges that Duckworth,
Harvey, and Hennrich were present while Ebonie, Fricke, and Crain beat him on March 15,
2017. (Doc. 11, pp. 1-35). They stood by and watched as all three officers used excessive force
against Plaintiff. These allegations support an Eighth Amendment failure to intervene claim
against Duckworth, Harvey, and Hennrich. Because no other defendants are named in connection
with this claim, Count 2 shall be dismissed with prejudice against the other named defendants.
Count 3
State officials also violate the Eighth Amendment when they act with deliberate
indifference to an inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976);
Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016). To state a claim, a plaintiff must
demonstrate that he suffered from a serious medical condition (i.e., objective standard) and the
state official responded with deliberate indifference (i.e., subjective standard). Petties v. Carter,

9

836 F.3d 722, 727-28 (7th Cir. 2016) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)). The First Amended Complaint includes
allegations against the defendants that satisfy both components of this claim for screening
purposes.
During the initial beating that occurred on March 15, 2017, Plaintiff sustained a head
injury, a bloody forehead, and a swollen eye. (Doc. 11, p. 10). His injuries were serious enough
that he was taken to the HCU for treatment immediately after the first assault. (Doc. 11, pp. 1011). Before he received any treatment, he was taken from the HCU and beaten a second time. Id.
Plaintiff alleges that he ultimately received no medical care for the injuries he sustained that day.
(Doc. 11, p. 12). These allegations, construed liberally in favor of Plaintiff for screening
purposes, satisfy the objective and subjective components of this claim against all six defendants
who were aware of his injuries and his lack of medical treatment for them, i.e., Ebonie, Fricke,
Crain, Duckworth, Harvey, and Hennrich. Accordingly, Count 3 shall receive further review
against them. No other defendants are named in connection with this claim, so it shall be
dismissed with prejudice against Mendoza, the IDOC, and Menard.
Count 4
An inmate’s need for treatment of a mental illness may rise to the level of an objectively
serious medical condition under the Eighth Amendment. See, e.g., Rasho v. Elyea, 856 F.3d 469
(7th Cir. 2017); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). In the First
Amended Complaint, Plaintiff does not identify his mental illness with specificity, although he
refers to episodes of depression and paranoia. (Doc. 11, pp. 1-35). Further, the fact that he was
given SMI status suggests that he suffers from an objectively serious medical condition. For
screening purposes, the Court finds that the objective component of this claim is satisfied.

10

The First Amended Complaint also suggests that Plaintiff repeatedly requested
intervention by the crisis team during his encounter with Ebonie, Fricke, Crain, Duckworth,
Harvey, and Hennrich on March 15, 2017. He explained that he was a SMI inmate who required
psychotropic medications, but these defendants disregarded his requests for help. The Eighth
Amendment does not give prisoners the right to “demand specific care” or “the best care
possible,” but only requires “reasonable measures to meet a substantial risk of serious harm.”
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Whether these defendants took reasonable
steps to address Plaintiff’s pleas for help remains to be seen. At this stage, Count 4 shall receive
further review against all six defendants. This claim shall be dismissed with prejudice against
Mendoza, the IDOC, and Menard.
Count 5
Plaintiff broadly asserts that the prison’s policy of placing mentally ill inmates in
isolation for prolonged periods of time infringes on his freedom of expression and right to access
the courts under the First Amendment, runs afoul of the settlement agreement in Rasho v.
Baldwin, and violates various state laws and regulations.
It is unclear why Plaintiff invoked the First Amendment in connection with this claim. In
his First Amended Complaint, he complained of interference with his personal mail and his
access to the courts during his confinement in segregation. However, he names no particular
defendant in connection with either of these complaints. Liability under § 1983 hinges on
personal involvement in a constitutional deprivation. Rasho, 856 F.3d at 478. Absent any
indication of who was involved in these constitutional violations, the First Amendment claim
fails.

11

Moreover, the interference that Plaintiff describes with his personal mail does not support
a First Amendment claim against anyone. The Seventh Circuit has held that “an isolated delay or
some other relatively short-term . . . disruption in the delivery of inmate reading materials will
not support . . . a cause of action grounded upon the First Amendment.” Rowe v. Shake, 196 F.3d
778, 782 (7th Cir. 1999). Plaintiff allegedly received no mail for one month in disciplinary
segregation. However, he does not allege that anyone actually sent him personal mail during this
time period or indicate how many items were delayed. The First Amended Complaint does not
describe the type of pattern that gives rise to a mail interference claim under the First
Amendment.
His related claim for interference with legal mail and court access is also subject to
dismissal. Plaintiff alleges that he was unable to file the amended complaint he originally
prepared in this case, prompting him to request an extension of the filing deadline. This single
incident supports no claim, particularly where Plaintiff demonstrated no harm as a result of it.
Every claim for interference with court access requires “some quantum of detriment caused by
the challenged conduct of state officials resulting in the interruption and/or delay of plaintiff’s
pending or contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir. 1994);
Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). Plaintiff describes no detriment. He
requested an extension of the deadline for filing his amended complaint, and the Court granted
his request.
Plaintiff’s reference to the settlement agreement in Rasho suggests that he is instead
challenging his prolonged detention in segregation without adequate mental health treatment
under the Eighth Amendment. See Rasho v. Baldwin, No. 07-cv-1298-MMM (C.D. Ill. filed
Nov. 7, 2007) (Docs. 710, 711-1). Rasho is a class action lawsuit that was filed in the United

12

States District Court for the Central District of Illinois by a group of mentally ill offenders who
were denied adequate mental health treatment and subjected to extended periods of segregation
that exacerbated their mental health problems. Id. The only relief sought in Rasho was injunctive
relief. Id. According to a settlement agreement reached in that case, mentally ill offenders who
are placed in disciplinary segregation for more than sixteen days are to receive “weekly
unstructured out-of-cell time” of an amount equivalent to the time allowed for all other
segregation inmates, unless the inmate’s individual treatment plan calls for more out-of-cell time.
(Doc. 711-1, p. 18, Rasho). Mentally ill offenders who are in segregation for more than sixty
days must be given eight hours per week of out-of-cell time. (Doc. 711-1, pp. 18-20, Rasho).
Inmates who seek damages based on their particular circumstances must proceed with a separate
action. (Text Orders, dated 5/18/2016, 9/16/2016, 9/26/2016, Rasho).
Plaintiff challenges the conditions of his confinement as a mentally ill inmate. He does
not name any of the defendants involved in the Rasho case in this action or seek enforcement of
the settlement agreement in Rasho. Instead, he seeks both injunctive relief and monetary
damages that stem from his denial of time outside of his cell, the denial of privileges, and his
demotion in status.
This claim arises under the Eighth Amendment, not the First Amendment. Prison
conditions violate the Eighth Amendment if they deprive inmates of basic human needs, such as
food, medical care, sanitation, or physical safety. Rhodes v. Chapman, 452 U.S. 337, 346 (1981);
James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992). Eighth Amendment claims that
challenge the conditions of confinement have an objective and a subjective component. McNeil
v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); Wilson v. Seiter, 501 U.S. 294, 302 (1991). To satisfy
the objective component of this claim, the conditions must have resulted in an unquestioned and

13

serious deprivation of basic human needs or deprived an inmate of the minimal civilized measure
of life’s necessities. Rhodes, 452 U.S. at 347. The subjective component of this claim is satisfied
where the defendant acted with deliberate indifference to the inmate’s health or safety. See, e.g.,
Farmer, 511 U.S. at 837; Estelle, 429 U.S. at 104. A prison official who acted or failed to act
despite the official’s knowledge of a substantial risk of serious harm from the conditions may be
liable for deliberate indifference. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).
The First Amended Complaint offers insufficient allegations to state an Eighth
Amendment claim for unconstitutional conditions of confinement. The Court is unable to
determine whether Plaintiff suffered from conditions of confinement that were objectively
serious. Plaintiff vaguely describes the mental health issues that resulted from his placement in
segregation with limited or no out-of-cell time. It is unclear whether this deprivation was
absolute or intermittent. Without this basic information, the Court cannot assess whether his
denial of time outside of the cell satisfies the objective component of this claim. Certainly, the
denial of commissary, phone privileges, and status do not support an Eighth Amendment claim.
Moreover, the First Amended Complaint does not suggest that any of the defendants exhibited
deliberate indifference to the conditions. Plaintiff does not even allege that he complained to
them about the conditions. Count 5 shall be dismissed without prejudice for failure to state a
claim upon which relief may be granted.
Count 6
The First Amended Complaint supports no claim against the defendants for stripping
Plaintiff of his SMI status. Plaintiff names no one in connection with the claim. Liability under §
1983 requires personal involvement in a constitutional deprivation. Rasho, 856 F.3d at 478;
Childress v. Walker, 787 F.3d 433, 439 (7th Cir. 2015); Minix v. Canarecci, 597 F.3d 824, 833

14

(7th Cir. 2010); Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th Cir. 2003); Sanville, 266 F.3d at
740. Although a defendant need not participate directly in the deprivation, he or she must have
known about it, facilitated it, approved it, or turned a blind eye to it. Rasho, 856 F.3d at 478
(citations omitted). The First Amended Complaint does not indicate who was involved in the
decision to change Plaintiff’s SMI status with a hearing where he was present. Without further
development of this claim, including the names of defendants associated with this decision,
Count 6 cannot proceed against anyone. This claim shall be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
Count 7
The First Amended Complaint states no Fourteenth Amendment claim against the
defendants for depriving Plaintiff of a protected liberty interest without due process of law.
Plaintiff was punished with three months of segregation as a result of three disciplinary tickets he
received on March 21, 2017. (Doc. 11, pp. 1-35). In the context of prison disciplinary hearings,
due process protections include: (1) advance written notice of the charges against the plaintiff;
(2) the opportunity to appear before an impartial hearing body to contest the charges; (3) the
opportunity to call witnesses and present documentary evidence in his defense (if prison safety
allows and subject to the discretion of correctional officers); and (4) a written statement
summarizing the reasons for the discipline imposed. See Wolff v. McDonnell, 418 U.S. 539, 56369 (1974). In addition, the decision of the adjustment committee must be supported by “some
evidence.” Black v. Lane, 22 F.3d 1395 (7th Cir. 1994). Plaintiff neither disputes the validity of
the disciplinary tickets he received nor complains that he was denied any due process protections
in connection with his disciplinary hearing. (Doc. 11, pp. 1-35).

15

Moreover, no due process protections are triggered in the first place, unless Plaintiff had
a protected liberty interest in avoiding segregation. A protected liberty interest arises when
confinement in segregation “impose[s] an ‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’” Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th
Cir. 2013) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). Courts generally consider two
factors when making this determination: “the combined import of the duration of the segregative
[sic] confinement and the conditions endured.” Id. at 743 (citing Marion v. Columbia Corr. Inst.,
559 F.3d 693, 697-98 (7th Cir. 2009)) (emphasis in original). If the length of confinement in
segregation is substantial and the conditions of confinement were unusually harsh, a liberty
interest may arise. Marion, 559 F.3d at 697-98, n. 2.
Plaintiff was punished with three months in disciplinary segregation and an additional
three weeks in protective custody. Even if the Court assumes without deciding that the length of
his confinement in segregation supports a claim, the conditions do not. Plaintiff’s complaints
focus on the privileges he lost. Specifically, Plaintiff complains about his demotion to C-grade,
his commissary restrictions, his phone restrictions, and his lack of access to time outside of his
cell. The Constitution does not recognize an inmate’s liberty interest in his status and privileges.
See Thomas v. Ramos, 130 F.3d 754, 762 (1997) (no liberty interest in demotion to C-grade
status and loss of commissary privileges); Sandin v. Conner, 515 U.S. 472 (1995) (no liberty
interest in phone privileges). In addition, an inmate has no liberty interest in movement outside
of his cell. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
Absent any suggestion that Plaintiff was deprived of a protected liberty interest without
due process of law, the Court finds no basis for a Fourteenth Amendment due process claim

16

against the defendants. Accordingly, Count 7 shall be dismissed without prejudice against the
defendants for failure to state a claim upon which relief may be granted.
Count 8
To state a retaliation claim under the First Amendment, a plaintiff must set forth a
chronology of events from which retaliation may plausibly be inferred. Cain v. Lane, 857 F.2d
1139, 1143 n.6 (7th Cir. 1988) (citing Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987)).
Where an inmate is alleging retaliation in the prison context, the Plaintiff must have engaged in
some protected First Amendment activity (e.g., filing a grievance or otherwise complaining
about conditions of confinement), experienced an adverse action that would likely deter such
protected activity in the future, and allege that the protected activity was “at least a motivating
factor” in the defendants’ decision to take the retaliatory action against him. Bridges v. Gilbert,
557 F.3d 541, 552 (7th Cir. 2009); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
Plaintiff describes what might be retaliatory acts in the wake of the March 15th incident,
including interference with his personal mail, his attempts to file an amended complaint, or his
attempts to file grievances. However, he fails to name any defendants in connection with this
specific conduct. He also offers no indication that these allegedly retaliatory acts were motivated
by his decision to exercise his First Amendments rights. Under the circumstances, the First
Amended Complaint fails to state a claim of retaliation against the defendants and shall therefore
be dismissed without prejudice.
Count 9
The Court turns to Plaintiff’s conspiracy claim against the defendants, which he brings
pursuant to 42 U.S.C. § 1985. A § 1985 conspiracy claim “cannot exist solely between members
of the same entity.” Payton v. Rush Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 632 (7th

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Cir. 1999). All of the defendants are members of the same entity, i.e., the Illinois Department of
Corrections, and were working in the IDOC’s interest. They cannot be sued for conspiracy under
§ 1985. See id. See also Wright v. Ill. Dep’t of Children and Family Servs., 40 F.3d 1492, 1508
(7th Cir. 1994). 6 Accordingly, the § 1985 conspiracy claim in Count 8 shall be dismissed with
prejudice for failure to state a claim upon which relief may be granted.
Civil conspiracy claims are cognizable under § 1983. See Lewis v. Washington, 300 F.3d
829, 831 (7th Cir. 2002) (recognizing conspiracy claim under § 1983). Generally, “it 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). In the
First Amended Complaint, Plaintiff alleges the Ebonie, Crain, Fricke, Harvey, Duckworth, and
Hennrich all conspired to violate his rights under the Eighth Amendment and suggests that they
worked together to cover up their misconduct on March 15, 2017. The common law conspiracy
claim shall receive further review against these defendants.
However, the common law claim is dismissed without prejudice against Mendoza, who
was not involved in the March 15th incident and whose later involvement is not described with
sufficient detail to implicate this defendant in the conspiracy. The claim is dismissed with
prejudice against the IDOC and Menard because these defendants are not “persons” who are
subject to suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989) (state
and its agencies are not suable “persons” within the meaning of § 1983).

6

While Wright focused on corporate managers, nothing in its reasoning precludes application of this
doctrine to supervisors and subordinates in a government entity, as long as all are working in the entity’s
interest. Id. at 633.

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Count 10
The mishandling of grievances gives rise to no independent Fourteenth Amendment due
process claim. The Constitution requires no procedure at all, and the failure of state prison
officials to follow their own procedures does not, of itself, violate the Constitution. Maust v.
Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir.
1982). Count 10 shall therefore be dismissed with prejudice against all of the defendants for
failure to state a claim upon which relief may be granted.
Count 11
Where a district court has original jurisdiction over a civil action such as a § 1983 claim,
it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C.
§ 1367(a), so long as the state claims “derive from a common nucleus of operative fact” with the
original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008).
“A loose factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495
(7th Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299
(7th Cir. 1995)). The Court has original jurisdiction over this action. Because the federal and
state claims arise from the same facts, the district court also has supplemental jurisdiction over
the related state law claims for intentional infliction of emotional distress in Count 11 and
indemnification in Count 12.
In order to state a claim for intentional infliction of emotional distress, Plaintiff must
demonstrate that the defendants intentionally or recklessly engaged in “extreme and outrageous
conduct” that resulted in severe emotional distress. Somberger v. City of Knoxville, Ill., 434 F.3d
1006, 1030 (7th Cir. 2006); see Lopez v. City of Chi., 464 F.3d 711, 720 (7th Cir. 2006). This tort
has three components: (1) the conduct involved must be truly extreme and outrageous; (2) the

19

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. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988).
The defendant’s conduct “must go beyond all bounds of decency and be considered intolerable in
a civilized community.” Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citations omitted).
At this early stage, the Court finds that the allegations support a claim for intentional
infliction of emotional distress against Ebonie, Fricke, Crain, Duckworth, Harvey, and Hennrich,
the six defendants who were involved in the incidents on March 15, 2017. Count 10 shall
therefore receive further review against these defendants. However, this claim shall be dismissed
with prejudice against all other defendants for failure to state a claim upon which relief may be
granted.
Count 12
To the extent Plaintiff seeks to enforce the State’s obligation under Illinois law to
indemnify its employees for any judgments entered against them, the state indemnification claim
shall proceed. The Eleventh Amendment immunizes the State, its agencies, and its officials
acting in their official capacities from a suit in federal court for money damages. Will, 491 U.S.
at 71. See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001); Billman v. Ind. Dep’t of
Corr., 56 F.3d 785, 788 (7th Cir. 1995); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir.
1991); Santiago v. Lane, 894 F.2d 219, 220 n. 3 (7th Cir. 1990). However, suits against state
officials in their individual capacities are permissible. Taylor v. Wexford Health Sources, Inc.,
No. 15 C 05190, 2016 WL 3227310 (N.D. Ill. 2016) (citing Kroll v. Bd. of Trs. of Univ. of Ill.,
934 F.2d 904, 907 (7th Cir. 1991; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99
(1984)). Further, the “[S]tate’s decision to indemnify its employees does not transform a suit

20

against individual defendants into a suit against the sovereign.” Id. (citing Benning v. Bd. of
Regents of Regency Univs., 928 F.2d 775, 779 (7th Cir. 1991)). Under such circumstances, the
doctrine of sovereign immunity does not bar Plaintiff’s claims. Id. (citing Wright v. Carter, No.
14 C 09109, 2015 WL 4978688, at *6 (refusing to find that sovereign immunity barred
indemnification claim where “Plaintiff merely explain[ed] . . . that the state is required by its
own law to indemnify employees such as the IDOC defendants for any judgments that may be
entered against them” and where it was “clear that the individual defendants will be the ones
directly liable for any money judgment”)). At this early stage, the indemnification claim against
the IDOC shall proceed. This claim shall be dismissed with prejudice against all other
defendants, including Menard.
Pending Motions
1.

Motion to Request Appointment of Counsel (Doc. 6)
Plaintiff’s Motion to Request Appointment of Counsel shall be REFERRED to a United

States Magistrate Judge for a decision.
2.

Motion for Preliminary Injunction (Doc. 12)
Plaintiff’s seeks preliminary injunctive relief in the First Amended Complaint (Doc. 11,

p. 36) and Motion for Preliminary Injunction 7 (Doc. 12) filed on July 25, 2017. This motion shall
be REFERRED to a United States Magistrate Judge for handling.
Disposition
The CLERK is directed to ADD the WARDEN of MENARD CORRECTIONAL
CENTER (in his or her official capacity only) as a defendant for the sole purpose of carrying
out any injunctive relief that is ordered.
7

The Court previously considered and denied Plaintiff’s request for a temporary restraining order on July
26, 2017. (Doc. 13).

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IT IS HEREBY ORDERED that the Complaint (Doc. 1) is VOID. It is superseded and
replaced with the First Amended Complaint (Doc. 11).
IT IS ORDERED that COUNT 1 is subject to further review against Defendants
EBONIE, FRICKE, and CRAIN; COUNT 2 is subject to further review against Defendants
DUCKWORTH, HARVEY, and HENNRICH; COUNTS 3, 4, 9 (common law conspiracy
claim only), and 11 are subject to further review against Defendants EBONIE, FRICKE,
CRAIN, DUCKWORTH, HARVEY, and HENNRICH; and COUNT 12 is subject to further
review against Defendant ILLINOIS DEPARTMENT OF CORRECTIONS. With the
exception of the common law conspiracy claim in COUNT 9 which is DISMISSED without
prejudice against Defendant MENDOZA, all of the claims in this paragraph are otherwise
DISMISSED with prejudice for failure to state a claim upon which relief may be granted.
IT IS ORDERED that COUNTS 5, 6, 7, and 8 are DISMISSED without prejudice and
COUNT 10 is DISMISSED with prejudice for failure to state a claim upon which relief may be
granted.
IT IS ALSO ORDERED that any claims set forth in the First Amended Complaint but
not recognized herein are considered DISMISSED without prejudice from this action for failure
to state a claim upon which relief may be granted.
With respect to COUNTS 1, 2, 3, 4, 9, 11 and 12, the Clerk of Court shall prepare for
Defendants DUCKWORTH, HENNRICH, CRAIN, FRICKE, HARVEY, EBONIE,
ILLINOIS DEPARTMENT OF CORRECTIONS, and WARDEN of MENARD
CORRECTIONAL CENTER: (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. 11), and this Memorandum and

22

Order to each Defendant’s place of employment as identified by Plaintiff. If 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
Defendant, and the Court will require 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 cannot be found at the 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, nor
disclosed by the Clerk.
Defendant is ORDERED to timely file an appropriate responsive pleading to the First
Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, including a decision on the
Motion to Request Appointment of Counsel (Doc. 6) and for handling of the Motion for
Preliminary Injunction (Doc. 12).
Further, this entire matter is hereby REFERRED to United States Magistrate Judge
Wilkerson for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c),
should all the 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, regardless of the fact
that his application to proceed in forma pauperis was granted. See 28 U.S.C. § 1915(f)(2)(A).

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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).
Plaintiff is further 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: August 3, 2017

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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