Jordan v. Cacioppo et al

Filing 1

MEMORANDUM AND ORDER severing case no. 17-209-MJR. Signed by Chief Judge Michael J. Reagan on 5/3/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PIERRE JORDAN, # M-07905,
Plaintiff,
vs.
JACQUELINE LASHBROOK,
C/O WAGNER,
LT. COFFEY,
SGT. CHAPMAN,
SGT. FLOWERS,
SEAN FURLOW,
C/O MYERS,
C/O CACIOPPO,
LT. HECK,
SHERRY BENTON,
TERRI ANDERSON,
UNKNOWN PARTY (Administrative
Review Board, State’s Attorney Office),
and DAVID STRANTON,
Defendants.

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Case No. 17-cv-209-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while he
was confined at Pinckneyville Correctional Center (“Pinckneyville”). The Complaint includes
claims that Plaintiff’s serious mental health needs as well as medical needs were ignored, he was
denied some meals, he was subjected to excessive force, he was assaulted by a fellow inmate
after staff refused to move him, and he was found guilty of a fabricated disciplinary report. This
case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C.
§ 1915A.
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Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must 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).
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 “no reasonable person could suppose to have any merit.” 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. Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, some of Plaintiff’s claims survive threshold review under

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§ 1915A. Addtionally, the Court shall consider whether certain distinct claims against different
groups of Defendants may appropriately proceed together in the same case. See George v. Smith,
507 F.3d 605 (7th Cir. 2007) (unrelated claims against different defendants belong in separate
lawsuits).
The Complaint
As an initial matter, Plaintiff’s motion for leave to file an amended request for relief
(Doc. 10) shall be DENIED. Plaintiff submitted his one-page proposed amended request for
relief along with his motion (Doc. 10, p. 2), indicating that the Court should substitute that page
for the Complaint’s original request for relief in a piecemeal fashion.

A cut-and-paste

amendment to a complaint is not permitted. See FED. R. CIV. P. 8(a). Instead, all claims against
all defendants must be set forth in a single document. Further, an amended complaint supersedes
and replaces the original complaint, rendering the original complaint void. See Flannery v.
Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004).
The allegations in the Complaint are as follows. Plaintiff attempted to commit suicide on
July 21, 2014, at Pinckneyville. (Doc. 1, pp. 6, 9). He had recently learned of the deaths of 2
family members, and requested emergency mental health crisis intervention. However, Flowers,
Wagner, and Coffey refused to contact a mental health professional to assist Plaintiff before his
suicide attempt.

(Doc. 1, p. 6).

Plaintiff also claims that after he tried to kill himself,

unidentified Defendants intentionally delayed their response to Plaintiff’s cellmate’s calls for
help on his behalf. Id.
Immediately after Plaintiff’s suicide attempt, Wagner and Coffey grabbed Plaintiff by the
arms, picked him up off his feet, and body-slammed him to the floor, hitting his head on a
radiator. (Doc. 1, p. 7; Doc. 1-1, pp. 2, 4-6). Wagner then grabbed the electric extension cord

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that Plaintiff had used in his suicide attempt, and wrapped it around Plaintiff’s neck, saying he
would kill Plaintiff himself. Wagner and Coffey punched Plaintiff, called him names, and cuffed
his hands behind his back so tightly that his circulation was cut off. They dragged him out of his
cell and down 2 flights of stairs, intentionally banged his head on a door, and cuffed him to a
shower railing where they left him for 2 hours. (Doc. 1, pp. 7-8). A mental health doctor came
and talked to Plaintiff, but would not remove the handcuffs until they finished speaking.
On July 21 and 28, 2014, Wagner, Flowers, and Chapman did not allow Plaintiff to eat
brunch. (Doc. 1, pp. 7-8).
Plaintiff was in segregation from June 21 to July 28, 2014. While he was there, Wagner
stole his Reebok shoes. Wagner also refused to properly label Plaintiff’s clothing bag containing
his gym shorts when Plaintiff went to segregation, so he never got the bagged clothing items
back. (Doc. 1, pp. 8, 15). Somebody purposely broke his television. (Doc. 1, p. 8).
Plaintiff complains that Counselor VanZandt (whom he does not include as a Defendant)
failed to properly handle his grievances and became verbally abusive and physically aggressive
when Plaintiff asked about them. (Doc. 1, pp. 8-9).
On July 28, 2014, Plaintiff was assaulted by a cellmate (Cosby or Crosby) 1 and suffered
abrasions and lacerations. Before this attack, Plaintiff had notified unnamed Security C/O’s that
the cellmate’s erratic and aggressive behavior made him fear for his safety. Plaintiff requested to
be moved to a different cell, but the official(s) ignored his requests. (Doc. 1, p. 9-10). The
cellmate punched Plaintiff in the face and continued the attack for about 10 minutes. (Doc. 1, p.
10). C/O DeDecker and Lt. Hoch 2 escorted Plaintiff to the Health Care Unit but he did not
receive adequate treatment. Wagner and Chapman intentionally refused to call the Health Care
1

Plaintiff spells this inmate’s surname as both Cosby and Crosby in the statement of claim; it appears that
he is referring to one single individual.
2
DeDecker and Hoch are not included as Defendants in the action.

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Unit to obtain medical treatment for Plaintiff’s injuries. (Doc. 1, p. 8).
Plaintiff asked Internal Affairs staff (Bronnan) 3 for a “Keep Separate Order” against
Cosby/Crosby, but this was not done. Later on, Cosby/Crosby was placed in the cell next to
Plaintiff, and then in another cell in the same housing unit, despite Plaintiff’s requests that they
be housed in different locations. (Doc. 1, pp. 10-11).
On March 4, 2015, C/O Cacioppo falsely accused Plaintiff of sexual misconduct and
wrote a fabricated disciplinary report on him. (Doc. 1, p. 12; Doc. 1-2, pp. 19-20). Plaintiff was
found guilty by the disciplinary committee, but Lt. McBride 4 refused to call Plaintiff’s requested
witness at his hearing. Plaintiff was punished with 3 months in segregation. Warden Lashbrook
allowed this punishment. Other inmates who heard about the incident began threatening Plaintiff
with bodily harm when he got out of segregation.
Plaintiff sought a transfer to another prison for his safety. (Doc. 1, pp. 12-13). Lt.
Furlow promised to transfer Plaintiff to another prison after he refused housing 3 times. (Doc. 1,
p. 14). Plaintiff refused housing assignments several times and incurred other disciplinary
charges because he feared for his life if he returned to general population. He informed Lt.
Hock 5 (who chaired the disciplinary committee) about his safety concerns and requested an
investigation. However, he was punished with 192 days in segregation and lost 3 months and 15
days of good conduct credits. (Doc. 1, p. 14). Plaintiff eventually was moved to Lawrence on a
disciplinary transfer on September 9, 2015 (Doc. 1-3, p. 19).
Finally, Plaintiff claims that C/O Wormack 6 retaliated against him by falsely claiming

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Bronnan is not named as a Defendant.
McBride is not named as a Defendant.
5
It appears that “Lt. Hock” as he is referred to in the body of the Complaint, may be the same individual
identified as “Lt. Heck” in the caption and list of Defendants, as this person is described as being the
“Adjustment Committee Chairperson.” (Doc. 1, pp. 1-2).
6
Wormack is not included as a Defendant.
4

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that some of Plaintiff’s cassette tapes were “altered” and that he possessed more tapes than were
permitted. (Doc. 1, pp. 14-15). Wormack either confiscated the cassette tapes or required
Plaintiff to mail them to somebody outside the prison at Plaintiff’s expense. Wormack also
confiscated and destroyed 3 of Plaintiff’s magazines. The taking of these items occurred after
Wormack read Plaintiff’s copies of his grievances against fellow officers Wagner, Coffey, and
Chapman, and accused Plaintiff of lying about his “buddies” beating up Plaintiff. (Doc. 1, p.
14).
Plaintiff seeks punitive damages and an investigation into the Defendants’ misconduct.
(Doc. 1, p. 16).
Designation and Severance of Claims
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Eighth Amendment deliberate indifference claim against Flowers,
Wagner, and Coffey, for failing to summon mental health assistance for Plaintiff
when he informed them he was having a crisis and was suicidal on or about July
21, 2014;
Count 2: Eighth Amendment claim against Wagner, Flowers, and Chapman for
depriving Plaintiff of two brunch meals on July 21 and July 28, 2014;
Count 3: Eighth Amendment claim against Wagner and Coffey for using
excessive force against Plaintiff on or about July 21, 2014, after his suicide
attempt;
Count 4: Fourteenth Amendment claim against Wagner for taking or destroying
Plaintiff’s shoes and clothing;
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Count 5: Eighth Amendment claim against Wagner and Chapman for refusing to
summon medical assistance for Plaintiff on July 28, 2014, after he was injured by
a cellmate who assaulted him;
Count 6: Eighth Amendment claim for failure to protect Plaintiff from the
cellmate who attacked him despite Plaintiff’s advance request to be moved;
Count 7: Fourteenth Amendment claim for deprivation of a liberty interest
without due process against Cacioppo for writing a false disciplinary report on
March 4, 2015, and against Lashbrook for allowing Plaintiff to be punished with 3
months in segregation after he was found guilty of the false charge;
Count 8: Claim against Furlow for failing to transfer Plaintiff for his protection,
and against Lt. Heck/Hock for failing to investigate Plaintiff’s claims of threats to
his safety.
Counts 1-5 all involve claims against Wagner, and some of these counts include claims
against Flowers, Coffey, and Chapman. As to Count 6, Plaintiff failed to identify which officers
were responsible for failing to protect him from the cellmate’s attack. The claims in Counts 7
and 8 do not involve any of the Defendants named in Counts 1-5, and are based on different
events. Given the distinct groups of Defendants in Counts 1-5 versus Counts 7 and 8, the Court
must evaluate whether all of Plaintiff’s claims may properly proceed together in the same action.
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that
unrelated claims against different defendants belong in separate lawsuits, “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 at 607,
(citing 28 U.S.C. § 1915(b), (g)). Claims against different Defendants, which do not arise from a
single transaction or occurrence (or series of related transactions/occurrences), and do not share a
common question of law or fact, may not be joined in the same lawsuit. See FED. R. CIV. P.
20(a)(2). Further, a prisoner who files a “buckshot complaint” that includes multiple unrelated
claims against different individuals should not be allowed to avoid “risking multiple strikes for
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what should have been several different lawsuits.” Turley v. Gaetz, 625 F.3d 1005, 1011 (7th
Cir. 2010) (citing George). The Court has broad discretion as to whether to sever claims
pursuant to Federal Rule of Civil Procedure 21, or to dismiss improperly joined Defendants. See
Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); Rice v. Sunrise Express, Inc., 209 F.3d
1008, 1016 (7th Cir. 2000).
Consistent with the George decision and Federal Rule of Civil Procedure 21, the Court
shall sever Counts 7 and 8, which are unrelated to Counts 1-5, into a single separate action. A
new case with a newly-assigned case number shall be opened for the severed claims. Plaintiff
shall be assessed another filing fee for the newly severed case. Counts 1-5 shall remain in this
action. Count 6 against an unidentified party (or parties) shall be dismissed from this action
without prejudice, for failure to state a claim upon which relief may be granted.
Counts 7 and 8 shall remain in the same severed action at this time, because it is possible
that they may share common questions of fact relating to Plaintiff’s disciplinary charges and
hearings and the alleged threats to Plaintiff’s safety. However, as that case proceeds, the Court
may determine that further severance is appropriate. The newly-severed case shall undergo
preliminary review pursuant to § 1915A after the new case number and judge assignment has
been made.
The Court shall evaluate the merits of the claims in Counts 1-6 below. Counts 1, 3, and 5
shall receive further review. However, Counts 2, 4, and 6 shall be dismissed pursuant to
§ 1915A.
Merits Review of Counts 1-6 Pursuant to 28 U.S.C. § 1915A
In addition to the claims outlined in Counts 1-8 above, the Complaint includes
descriptions of several incidents involving Pinckneyville staff members who are not included as

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Defendants (for example, the alleged retaliation by C/O Wormack; deliberate indifference by
C/O Newbury; grievance-related problems involving Counselor VanZandt and former Counselor
Samelinski; response to the cellmate assault by C/O DeDecker and Lt. Hoch; lack of action on
safety concerns by I.A. Officer Bronnan and Lt. Pearce following the cellmate attack; and Lt.
McBride’s refusal to call a witness at Plaintiff’s disciplinary hearing). Because Plaintiff chose
not to include these persons as parties to the action, and did not list them in the caption, this
Court will not treat them as defendants. At this time, any claims against these individuals shall
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) (holding that to be properly considered a party, a defendant must be “specif[ied] in the
caption”). If Plaintiff intended to bring a claim against any of these persons, he must submit an
amended complaint in accordance with Federal Rule of Civil Procedure 15 and Local Rule 15.1.
Conversely, Plaintiff named some Defendants in the caption and the list of parties ( C/O
Myers, Sherry Benton, Terri Anderson, Unknown Party (Administrative Review Board, State’s
Attorney Office), and David Stranton), but did not include any allegations against them in the
statement of claim. Plaintiffs are required to associate specific defendants with specific claims,
so that defendants are put on notice of the claims brought against them and so they can properly
answer the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R.
CIV. P. 8(a)(2). Where a plaintiff has not included a defendant in his statement of the claim, the
defendant cannot be said to be adequately put on notice of which claims in the complaint, if any,
are directed against him. Furthermore, merely invoking the name of a potential defendant is not
sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th
Cir. 1998). Accordingly, Defendants Myers, Benton, Anderson, Unknown Party (Administrative

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Review Board, State’s Attorney Office), and Stranton will be dismissed from this action without
prejudice.
Count 1 – Deliberate Indifference to Serious Mental Health Needs
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that he (1) suffered from an objectively serious medical condition; and (2) that the
defendant was deliberately indifferent to a risk of serious harm from that condition. A medical
need is “serious” where it has either “been diagnosed by a physician as mandating treatment” or
where the need is “so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). The Seventh
Circuit has found that “the need for a mental illness to be treated could certainly be considered a
serious medical need.” Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001); Wellman v.
Faulkner, 715 F.2d 269 (7th Cir. 1983).
“Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and either acts or fails to act in disregard of that risk.
Delaying treatment may constitute deliberate indifference if such delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)
(internal citations and quotations omitted). See also Farmer v. Brennan, 511 U.S. 825, 842
(1994); Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015).

However, the Eighth

Amendment does not give prisoners entitlement 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).
In Plaintiff’s case, he allegedly told Flowers, Wagner, and Coffey that he was having a
mental health crisis and was suicidal, and he requested emergency intervention. A person who is

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contemplating suicide presents an objectively serious mental health condition that places him at
risk of harm.

Faced with this report and request for help from Plaintiff, these officers

nonetheless took no action to help him. Soon thereafter, Plaintiff tried to take his own life. At
this stage, Plaintiff has stated a deliberate indifference claim in Count 1 against Flowers,
Wagner, and Coffey that merits further consideration.
Dismissal of Count 2 – Deprivation of Two Meals
As with the claim discussed above, two elements are required to establish a violation of
the Eighth Amendment’s cruel and unusual punishments clause with regards to any conditions of
confinement in prison. First, an objective element requires a showing that the conditions deny
the inmate “the minimal civilized measure of life’s necessities,” creating an excessive risk to the
inmate’s health or safety.

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The objective

conditions must have resulted in an unquestioned and serious deprivation of basic human needs
such as food, medical care, sanitation, or physical safety. Rhodes v. Chapman, 452 U.S. 337,
347 (1981).

The second requirement is a subjective element – establishing a defendant’s

culpable state of mind, which is deliberate indifference to a substantial risk of serious harm to the
inmate from those conditions. Farmer, 511 U.S. at 837, 842.
In some circumstances, a prisoner’s claim that he was denied food may satisfy the first
(objective) element but, as the Seventh Circuit has held, the denial of food is not a per se
violation of the Eighth Amendment. Rather, a district court “must assess the amount and
duration of the deprivation.” Reed v. McBride, 178 F.3d 849, 853 (7th Cir. 1999). See generally
Wilson v. Seiter, 501 U.S. 294, 304 (1991) (it would be an Eighth Amendment violation to deny
a prisoner an “identifiable human need such as food”); Sanville v. McCaughtry, 266 F.3d 724,
734 (7th Cir. 2001) (withholding food from an inmate can, in some circumstances, satisfy the

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first Farmer prong); Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (noting that denial of
one out of every nine meals is not a constitutional violation); Cooper v. Sheriff of Lubbock Cnty.,
929 F.2d 1078 (5th Cir. 1991) (failure to feed a prisoner for twelve days is unconstitutional);
Cunningham v. Jones, 567 F.2d 653, 669 (6th Cir. 1977), app. after remand, 667 F.2d 565
(1982) (feeding inmates only once a day for 15 days, would constitute cruel and unusual
punishment only if it “deprive[s] the prisoners concerned . . . of sufficient food to maintain
normal health.”).
In Plaintiff’s case, he alleges that Wagner, Flowers, and Chapman caused him to miss
one meal on July 21, 2014, and one other meal a week later on July 28, 2014. This amounts to
missing one meal in a week’s time, for a 2-week period. Under the authority outlined above, this
minimal deprivation may have caused Plaintiff some discomfort, but was not enough to pose an
excessive risk to Plaintiff’s health. The denial of 2 meals over this time span does not amount to
an objectively serious deprivation that would violate Plaintiff’s Eighth Amendment rights.
Count 2 shall therefore be dismissed from this action with prejudice for failure to state a
claim upon which relief may be granted.
Count 3 – Excessive Force
The intentional use of excessive force by prison guards against an inmate without
penological justification constitutes cruel and unusual punishment in violation of the Eighth
Amendment and is actionable under § 1983. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt
v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). An inmate must show that an assault occurred, and
that “it was carried out ‘maliciously and sadistically’ rather than as part of ‘a good-faith effort to
maintain or restore discipline.’” Wilkins, 559 U.S. at 40 (citing Hudson v. McMillian, 503 U.S. 1,
6 (1992)). An inmate seeking damages for the use of excessive force need not establish serious

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bodily injury to make a claim, but not “every malevolent touch by a prison guard gives rise to a
federal cause of action.” Wilkins, 559 U.S. at 37-38 (the question is whether force was de
minimis, not whether the injury suffered was de minimis); see also Outlaw v. Newkirk, 259 F.3d
833, 837-38 (7th Cir. 2001).
Here, Plaintiff alleges that immediately after he tried to commit suicide by hanging
himself with an electrical cord, Wagner and Coffey picked him up and slammed him into the
floor, causing him to strike his head. Wagner wrapped the cord around Plaintiff’s neck and
threatened to kill him. As they moved Plaintiff to another location, they dragged him and
intentionally banged his head. There is no indication that Plaintiff was resisting or displaying
aggressive behavior that required unusual force to restrain him. No justification is apparent for
the officers’ violent handling of Plaintiff.
The excessive force claim in Count 3 against Wagner and Coffey shall proceed for
further review.
Dismissal of Count 4 – Destruction/Loss of Personal Property
Plaintiff claims that Wagner stole his Reebok shoes, and failed to properly label the bag
containing his shorts when he went into segregation. As a result, Plaintiff’s property items were
lost or destroyed; he never got them back.
The only constitutional right that might be implicated by these facts is Plaintiff’s right,
under the Fourteenth Amendment, to be free from deprivations of his property by state actors
without due process of law. To state a claim under the due process clause of the Fourteenth
Amendment, Plaintiff must establish a deprivation of liberty or property without due process of
law; if the state provides an adequate remedy, Plaintiff has no civil rights claim. Hudson v.
Palmer, 468 U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is an

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adequate, post-deprivation remedy). The Seventh Circuit has found that Illinois provides an
adequate post-deprivation remedy in an action for damages in the Illinois Court of Claims.
Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031,
1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8 (1995). Therefore, Plaintiff cannot sustain a
civil rights claim based on the loss of his property.
The Fourteenth Amendment claim in Count 4 shall be dismissed with prejudice from this
action for failure to state a claim upon which relief may be granted. The dismissal shall not
preclude Plaintiff from seeking relief in the Illinois Court of Claims for his property loss, if it is
not too late for him to do so.
Count 5 – Deliberate Indifference to Medical Needs
This claim arises from Plaintiff’s need for treatment for the injuries he sustained as a
result of being attacked by his cellmate (Cosby/Crosby) on July 28, 2014. He suffered abrasions
and lacerations after being punched in the face. Plaintiff states that two officers (DeDecker and
Hoch, who are not parties to this action) broke up the altercation and took him to the Health Care
Unit. This prompt action does not constitute deliberate indifference. At some later time,
however, Plaintiff needed more treatment for his wounds, but Wagner and Chapman refused to
notify the Health Care Unit of this need.
Although a bit thin on the facts, Plaintiff’s allegations suggest that he had visible wounds
from the attack, and Plaintiff presumably informed Wagner and Chapman of the reason he
sought medical treatment. This would have put Wagner and Chapman on notice of Plaintiff’s
medical condition. Despite this awareness, they took no action to help Plaintiff get medical care.
At this stage, the deliberate indifference claim in Count 5 survives review under § 1915A and
shall receive further consideration.

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Dismissal of Count 6 – Failure to Protect
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(internal citations omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006).
However, not every harm caused by another inmate translates into constitutional liability for the
corrections officers responsible for the prisoner’s safety. Farmer, 511 U.S. at 834. In order for a
plaintiff to succeed on a claim for failure to protect, he must show that he is incarcerated under
conditions posing a substantial risk of serious harm, and that the defendants acted with
“deliberate indifference” to that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must
prove that prison officials were aware of a specific, impending, and substantial threat to his
safety, often by showing that he complained to prison officials about a specific threat to his
safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, Defendants had to know
that there was a substantial risk that those who attacked Plaintiff would do so, yet failed to take
any action. See Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001). However,
conduct that amounts to negligence or inadvertence is not enough to state a claim. Pinkston, 440
F.3d at 889 (discussing Watts v. Laurent, 774 F.2d 168, 172 (7th Cir. 1985)).
Plaintiff states that before the July 28, 2014, attack on him by cellmate Cosby/Crosby, he
informed security officials that he feared for his safety because of the cellmate’s violent
outbursts and erratic behavior. However, those officials took no steps to move Plaintiff to a
different cell or to otherwise protect him from harm.
If Plaintiff had identified the officials who failed to respond to his requests for protection,
this claim could go forward. However, he did not connect this claim to any of the named
Defendants. Accordingly, the Complaint fails to state a claim upon which relief may be granted

15

for this failure-to-protect claim. Count 6 shall therefore be dismissed without prejudice.
Plaintiff may attempt to re-plead the claim in Count 6 by submitting an amended
complaint in accordance with Federal Rule of Civil Procedure 15 and Local Rule 15.1. He shall
note, however, that if this claim involves different prison officials than those who remain as
Defendants in this action, his claim may be subject to severance into a separate action, and the
assessment of another filing fee.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
The motion for service of process at government expense (Doc. 4) is TERMINATED
AS MOOT. No such motion is necessary for a Plaintiff who has been granted leave to proceed
in forma pauperis (“IFP”). The Court shall order service on all Defendants who remain in the
action following threshold review under § 1915A. 28 U.S.C. § 1915(d). No service shall be
made on the dismissed Defendants.
As noted above, Plaintiff’s motion for leave to file an amended request for relief (Doc.
10) is DENIED, without prejudice to Plaintiff submitting a complete amended complaint in
accordance with Federal Rule of Civil Procedure 15 and Local Rule 15.1, should he wish to do
so.
Disposition
COUNTS 2 and 4 are DISMISSED with prejudice for failure to state a claim upon
which relief may be granted. COUNT 6 is DISMISSED without prejudice for failure to state a
claim upon which relief may be granted.
Defendants MYERS, BENTON, ANDERSON, UNKNOWN PARTY (Administrative

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Review Board, State’s Attorney Office), and STRANTON are DISMISSED from this action
without prejudice.
IT IS HEREBY ORDERED that Plaintiff’s claims in COUNTS 7 and 8, which are
unrelated to the claims in Counts 1, 3, and 5, are SEVERED into a new case. That new case
shall be:
Claims in Count 7 for deprivation of a liberty interest without due process against
CACIOPPO and LASHBROOK, and Count 8 for failing to transfer Plaintiff or investigate
safety threats, against FURLOW and HECK (or HOCK).
In the new case, the Clerk is DIRECTED to file the following documents:
(1)
(2)
(3)

This Memorandum and Order
The Original Complaint (Doc. 1)
Plaintiff’s motion to proceed in forma pauperis (Doc. 2)

Plaintiff will be responsible for an additional $350.00 filing fee in the new case. The
claims in the newly severed case shall be subject to merits review pursuant to 28 U.S.C. § 1915A
after the new case number and judge assignment is made. No service shall be ordered on the
Defendant(s) 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, 3, and 5 against Defendants WAGNER, COFFEY, CHAPMAN, and FLOWERS.
This case shall now be captioned as: PIERRE JORDAN, Plaintiff, vs. C/O WAGNER, LT.
COFFEY, SGT. CHAPMAN, and SGT. FLOWERS, Defendants.
IT IS FURTHER ORDERED that Defendants JACQUELINE LASHBROOK, SEAN
FURLOW, CO CACIOPPO, and LT. HECK (or HOCK) are TERMINATED from this
action with prejudice.

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As to COUNTS 1, 3, and 5, which remain in the instant case, the Clerk of Court shall
prepare for Defendants WAGNER, COFFEY, CHAPMAN, and FLOWERS: (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
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 United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
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, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: May 3, 2017
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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